Bench Memos

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This Week in Liberal Judicial Activism—Week of February 19


Feb. 20      1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law.  The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause.  Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation.  (For more on the “wall” myth, see This Week entry for February 10, 1947.)


Feb. 22      1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.”  No, he’s not abandoning his lawless abortion jurisprudence.  Rather, he is announcing that he will henceforth regard the death penalty as unconstitutional. 

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.”  Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins.  One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal:  “I have not altered any of the cites.  It is therefore unnecessary for you to recheck the cites for accuracy.”


Feb. 23      1993—When is a quota not a quota?  The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998.  Barkett explains:  “It is not in the context of a quota system.  It is simply an acknowledgment that women make up one-half of the population of this state.”  Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat, where she serves with distinction (of a sort) to this day.  (For more on Barkett’s egregious record, see here—and stay tuned.)


Feb. 25      1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left.  As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one:  Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury?  The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court.  Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view.  He also declares:  “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt.  But that does not mean that it is invariably unconstitutional.  The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”  Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this thitherto obscure case is featured in the lead article on the front page of the New York Times.  Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court.  She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.”  Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion.  She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.”  The editorial feigns “crashing disappointment” with him.  Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.


For an explanation of this recurring feature, see here.

Week of February 12

Week of February 5

Week of January 29 

Week of January 22 

Tags: This Day in Liberal Activism


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