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This Week in Liberal Judicial Activism—Week of April 7



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Intellectual obscenity, two Reinhardts, and three Barketts

  
Apr. 71969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material.  Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment.  Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.”  Yep, that carefully captures what viewing obscenity is all about.  (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)
  
Apr. 82005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt (see This Week entry for Mar. 27), rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph.  In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) unanimously reverses the Ninth Circuit. 
  
Apr. 92001—More Reinhardt.  A Ninth Circuit panel, in an opinion by Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments.  The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public.  The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent).  The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive.  In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.

  
Apr. 121990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest.  After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip.  Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross.  Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause.  Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

  
Apr. 132001—Judge Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman.  The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.”  Barkett asserts that the district court injunction properly barred “public student prayer”.
  

For an explanation of this recurring feature, see here. 


Tags: This Day in Liberal Activism


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