This Week in Liberal Judicial Activism—Week of July 14
|Obscenity, economic obtuseness, and how, and how not to, replace bad judges:|
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|July 14||1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton appoints Daughtrey to the Sixth Circuit.|
2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”). Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”
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|July 15||2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Week for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment. As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.” |
In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.
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|July 20||1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford Greenburg describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.” Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.|
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For an explanation of this recurring feature, see here.