Bench Memos

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This Week in Liberal Judicial Activism—Week of December 10


Dec. 10     1986—By a vote of 5 to 4, the Supreme Court, in a majority opinion by Justice Thurgood Marshall, rules (in Tashjian v. Republican Party of Connecticut) that a Connecticut statute that requires voters in any party primary to be registered members of that party violates the First Amendment rights of the party and its members.  In dissent, Justice Scalia observes:

“In my view, the Court’s opinion exaggerates the importance of the associational interest at issue, if indeed it does not see one where none exists. There is no question here of restricting the Republican Party’s ability to recruit and enroll Party members by offering them the ability to select Party candidates; [the statute] permits an independent voter to join the Party as late as the day before the primary.  Nor is there any question of restricting the ability of the Party’s members to select whatever candidate they desire.…

“[E]ven if … the majority of the Party’s members wanted its candidates to be determined by outsiders, there is no reason why the State is bound to honor that desire—any more that it would be bound to honor a party’s democratically expressed desire that its candidates henceforth be selected by convention rather than by primary, or by the party’s executive committee in a smoke-filled room. In other words, the validity of the state-imposed primary requirement itself, which we have hitherto considered ‘too plain for argument,’ presupposes that the State has the right ‘to protect the Party against the Party itself.’  It is beyond my understanding why the Republican Party’s delegation of its democratic choice to a Republican Convention can be proscribed, but its delegation of that choice to nonmembers of the Party cannot.”


Dec. 11     2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years previously—when it first ruled that Ohio’s existing system of financing its public-school system somehow violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.”  The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.  Some six months later, the court will finally end the litigation.  Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.


Dec. 13     1971—The initial Supreme Court oral argument in Roe v. Wade takes place.  The case ends up being carried over to the next term and re-argued in October 1972.  In the meantime, the Court issues its ruling in Eisenstadt v. Baird, which extends a right to contraception to unmarried persons.  (See This Week for March 22, 1972.)  Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple extraneous words:  “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”  In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”


Dec. 14     2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America—the fifth and latest moniker of the pro-abortion organization that dare not keep its name—stumbles upon some nuggets of truth:  The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.”  Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations.  The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism


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