2005—Federal district judge Joseph F. Bataillon, appointed by—surprise!—President Clinton, rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.
May 13
1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clauseof the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.
To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.
May 14
1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Week for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.
May 17
1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”
1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.” Daughtrey was appointed by President Clinton to the Sixth Circuit in 1993 and continues to sit on that court.
May 18
1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.” The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.
For an explanation of this recurring feature, see here.
