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This Week in Liberal Judicial Activism—Week of October 13



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Skelly Wright on drugs, Brennan’s recess appointment, and Douglas:
  
Oct. 141983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration?  Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections. 

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.”  In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.” 

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable.  Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.

  
Oct. 151956—So much for basing Supreme Court selections on short-term political calculations.  Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.  That decision appears to have been as unnecessary as it was foolish:  Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college.  And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.
  
Oct. 161898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.  (See This Week entry for April 4, 1939, for Judge Richard A. Posner’s colorful summary of Douglas’s life and career.)
  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism


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