Judicial mischief on same-sex marriage, an ideal Clinton nominee, and the mythical “wall of separation”:
Feb. 4 2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).
2005—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as between a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, reverses this ruling.
Feb. 6 1992—Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges 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 rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.
A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case. The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality. Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”
In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994. The ABA gives Sarokin its highest “well qualified” rating. Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”
Feb. 10 1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As University of Chicago law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.
For an explanation of this recurring feature, see here.