Google+
Close

Bench Memos

NRO’s home for judicial news and analysis.

This Week in Liberal Judicial Activism—Week of February 12



Text  



Feb. 14      1992—The Third Circuit hears oral argument on Morristown, New Jersey’s appeal of a wonderfully wacky ruling by federal district judge H. Lee Sarokin that the Morristown public library’s policies governing behavior in the library are facially unconstitutional.  Richard R. Kreimer, a homeless man, camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.  The library then adopted written policies.  After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin ruled that the library was a traditional public forum like a street or sidewalk, that the carefully crafted policies were overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression.  Five weeks after oral argument, the Third Circuit unanimously reverses Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin had deprived other citizens of the right to use a library in peace.  Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library.  (For a fuller discussion of this This Week classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton appointed Sarokin to the Third Circuit in 1994.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (appointed by President Clinton in 1998) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity.  Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.”  According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”.  Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited.  (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

 

Feb. 18      1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be.  All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided.  Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.
 

For an explanation of this recurring feature, see here.

Week of February 5
Week of January 29
Week of January 22


Tags: This Day in Liberal Activism


Text  


Sign up for free NRO e-mails today:

Subscribe to National Review