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This Week in Liberal Judicial Activism—Week of December 17



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Dec. 18     1997Best is worst—Best v. Taylor Machine Works, that is.  In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act.  Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation.  In twisted confusion over which branch has the authority to make law, it also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.”  Under the “special” legislation pretense, the court strikes down, too, the act’s abolition of the common-law doctrine of joint and several liability.  And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”

 

Dec. 20     1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”  In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples.  So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples. 

 

Dec. 23     2006—In the wake of the Democratic takeover of the Senate, newspapers report that Mississippi attorney Michael B. Wallace has decided to ask President Bush not to renominate him to a Fifth Circuit vacancy.  Wallace’s nomination had previously suffered from the ABA’s thoroughly scandalous “not qualified” rating.  Although it determined that Wallace “has the highest professional competence” and “possesses the integrity to serve on the bench,” the ABA judicial-evaluations committee found him lacking on the highly malleable element of “judicial temperament.”  Bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and flat-out perjury infected the ABA’s treatment of Wallace.

 

For an explanation of this recurring feature, see here.

 


Tags: This Day in Liberal Activism


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