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This Week in Liberal Judicial Activism—Week of September 1



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The “remarkable” Ninth Circuit, Leahy’s model judge, a seminal case, and the Florida supreme court:
  
Sept. 22003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review.  The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.  In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule.  She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit.  Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling.  By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure.

  
Sept. 41992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus (internal quotation marks omitted), the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Week all-star) H. Lee Sarokin has created such exceptional circumstances.  Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!”  (Exclamation point in original.)  Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced.  Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case.  The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality. 

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy—the lead obstructer of President George W. Bush’s judicial nominees—displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

  
Sept. 52001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated.  An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.
  
Sept. 72000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.  Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball”.  You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court”, but the amendment “effectively strikes the state Clause from the constitutional scheme.”  (Huh??  The ballot title and summary provide a far more accurate description of the amendment than the majority does.)  And, the majority continues, the ballot summary supposedly failed to “mention[]—or even hint[] at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.”  (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)
  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism


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