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This Week in Liberal Judicial Activism—Week of May 14



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May 14     1970—President Richard M. Nixon, in the misdeed for which he perhaps most deserves infamy, appoints Harry A. Blackmun to the Supreme Court.  Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959.  Before that, he had been in-house counsel for the Mayo Clinic.  His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor.  Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Week for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss. 

 

May 17     1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance.  Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.” 

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey (the activist duo we’ve met before—see This Week for April 26) dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution.  The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”  Daughtrey was appointed by President Clinton to the Sixth Circuit in 1993 and continues to sit on that court.

 

May 18     1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000.  Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990.  According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”  The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts.  Just kidding:  There is no sign that follow-up investigations of any sort ever took place.

 

May 20     1996—What’s one way to deal with unhelpful precedent?  Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.  In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal.  A decade later the Court in Romer addressed the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing special protections upon those engaged in homosexual conduct.  Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause.  (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having  seriously eroded Bowers.)  Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism


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