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This Week in Liberal Judicial Activism—Week of February 5



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Feb. 6        1992Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!”  (Exclamation point in original.)  Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced.  Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case.  The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality.  Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994.  The ABA gives Sarokin its highest “well qualified” rating.

 

Feb. 10     1947In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state.  As University of Chicago law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.”  The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.”  Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

 

Feb. 11      1993In a solo dissent from the Florida supreme court’s ruling in Gayman v. State on a criminal-sentencing issue, This Week regular Rosemary Barkett (later appointed to the Eleventh Circuit by President Clinton) refuses to give effect to the ordinary operation of the plain meaning of Florida’s laws and, misapplying the rule of lenity, would instead require a heightened showing of specific legislative intent.

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism , Whelan


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