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This Day in Liberal Judicial Activism—July 1



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1987—Minutes after President Reagan’s announcement of his intention to nominate Judge Robert H. Bork to the Supreme Court, Senator Teddy Kennedy races to the Senate floor to deliver his vicious smear of Bork:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy.

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This Day in Liberal Judicial Activism—June 29



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1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade. The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation. But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .’ The Federalist No. 78.”

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This Day in Liberal Judicial Activism—June 28



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2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

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This Day in Liberal Judicial Activism—June 27



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1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”

2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.

Justice Breyer, who provides the decisive fifth vote in each case, explains that for “difficult borderline cases” that are “fact-intensive,” there is “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment, be assured, “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.” The particular factor that Breyer finds “determinative” in the Texas case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.” Thus, under Breyer’s view (as well as that of the other members of the Kentucky majority), American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage.

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This Day in Liberal Judicial Activism—June 26



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1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive. But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.

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This Day in Liberal Judicial Activism—July 5



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1989—Displaying its usual disregard for the interests of local communities in maintaining minimal standards of behavior, the American Civil Liberties Union protests the written policies developed by the Morristown, New Jersey, public library to deal with a homeless man who 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.  (See This Day for February 14, 1992, for the rest of the story.)

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This Day in Liberal Judicial Activism—July 4



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1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?  Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.”  Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.”  (See here for more on Ginsburg’s embarrassingly shoddy speech.)

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in celebrations with their constituents.

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This Day in Liberal Judicial Activism—June 25



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1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

“As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

2008—By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death.  Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion.  The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”  (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.)

While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law.

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This Day in Liberal Judicial Activism—June 24



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1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court!

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This Day in Liberal Judicial Activism—June 23



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2005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn. It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are.

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This Day in Liberal Judicial Activism—June 21



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1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.”

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This Day in Liberal Judicial Activism—June 20



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2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”

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This Day in Liberal Judicial Activism—June 18



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1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

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This Day in Liberal Judicial Activism—June 17



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1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)

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This Day in Liberal Judicial Activism—June 15



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1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

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This Day in Liberal Judicial Activism—June 14



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1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White. In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.

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This Day in Liberal Judicial Activism—June 13



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1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

2008—In Belmontes v. Ayers, Ninth Circuit arch-activists Stephen Reinhardt and Richard Paez join forces to rule that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. In dissent, Judge Diarmuid O’Scannlain explains that “the majority overstates the mitigating evidence, understates the properly admitted aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.”

Some 17 months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court). Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

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This Day in Liberal Judicial Activism—June 12



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2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

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This Day in Liberal Judicial Activism—June 11



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1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982. The ruling triggers three noteworthy dissents: Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.” Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled. And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.)

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This Day in Liberal Judicial Activism—June 10



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1968—What does Chief Justice Earl Warren do when he encounters a 45-year-old precedent that has stood (in his own words) as an “impenetrable barrier” to suits by federal taxpayers (in their capacity as taxpayers) challenging the constitutionality of the uses for which Congress has authorized the expenditure of public funds? In Flast v. Cohen, Warren’s majority opinion for eight justices concocts an unprincipled, ad hoc exception for taxpayer suits challenging federal spending on Establishment Clause grounds.

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