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This Week in Liberal Judicial Activism—Week of June 11



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June 11     1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other)  provisions of the Pennsylvania Abortion Control Act of 1982.  The ruling triggers three noteworthy dissents:  Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.”  Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled.  And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”  (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.) 

 

June 12     1986—In an opinion by Justice Rosemary Barkett, the Florida Supreme Court rules (in State v. Saiez) that a state law prohibiting the possession of embossing machines capable of counterfeiting credit cards “violates substantive due process” under the U.S. Constitution because embossing machines have legitimate uses.  That proposition, if taken seriously, would have dramatic consequences, as a broad range of criminally proscribed items also have legitimate uses.  Switchblades, for example, can be used to slice apples.  More damaging to the rule of law is the prospect that the proposition would be applied selectively in an unprincipled manner.

 

June 13     1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted).  (For more, see This Week entry for March 13, 1963.) 

 

June 14     1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.  In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy.  In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy.  Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.  

 

June 15     1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens.  In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

 

June 17     1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.”  Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground.  As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear.  Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media.  Sample content:  “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful.  You should have seen it.  Ah, I enjoyed every minute of it.  I loved watching the blood gush from his eyes.” 

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opined that the death penalty was a disproportionate sentence under the circumstances.  Justice Parker McDonald’s dissent, joined by Chief Justice Leander Shaw and This Week Hall of Infamy inductee Justice Rosemary Barkett, included these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case.  Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection.  Throughout Dougan’s life his resentment to bias and prejudice festered.  His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder.  His frustrations, his anger, and his obsession of injustice overcame reason.  The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times.  During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.…  I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.” 

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.”  (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.) 

 For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism , Whelan


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