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This Week in Liberal Judicial Activism—Week of March 26



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Mar. 27     1931—Stephen Reinhardt is born in New York.  Appointed to the Ninth Circuit by Jimmy Carter in 1980, Judge Reinhardt has earned notoriety as the “liberal badboy of the federal judiciary.”  In his overtly political view of judging, “The judgments about the Constitution are value judgments.  You reach the answer that essentially your values tell you to reach.”  Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.”

 

Mar. 29     2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections.  Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general.  So what?  As Justice Scalia responds:  “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”

 

Mar. 30     1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.”  In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring”.  But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional.  (See This Week entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)

 

Mar. 31     1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime.  Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  (Somehow those “evolving standards” are never broadly reflected in actual legislation.)    

Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.”  Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.”  Asks Frankfurter rhetorically:  “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”  Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes. 

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism


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