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This Week in Liberal Judicial Activism—Week of November 19



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Nov. 22     2006—It’s monkey business as usual at the Ninth Circuit.  A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable.  Judge Kozinski concludes his thorough dissent with this summary:

“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”

2008—Happy Thanksgiving!  Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast.  In the words of Washington:

“Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness’:

“Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enable to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

“And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.”

 

Nov. 23     1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.”  To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy:  as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”  Never mind that its supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.”  (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).  A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.”  He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”  

Nov. 24     2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion.  The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health.  In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception.

On review, the Supreme Court rules unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate.

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism


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