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This Day in Liberal Judicial Activism—August 11



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2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”  What exactly Barkett means by “mental age” is confused.  At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.”  But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.”  Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.” 

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18.  Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child.  Does This Day perennial Barkett “understand why the rules exist”?  Does she “appreciate the consequences of breaking them”—through her lawless judicial activism?  Does she “consistently make judgments based” on those understandings?  From the evidence that pervades This Day entries, the answers are no, no, and no.

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This Day in Liberal Judicial Activism—August 9



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1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles.  Some 2½ years later, in its own rampage (see This Week for Feb. 18, 1972), the California supreme court voids the death sentences that had been imposed on Manson and four other Family members. 

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This Day in Liberal Judicial Activism—August 8



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2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court.  The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.”  Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.”  Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing).  And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals”.

Days later, under harsh criticism from its usual allies, NARAL pulls the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report on presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.

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This Day in Liberal Judicial Activism—August 7



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2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address.  For example:  “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.”  And:  “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom.  It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”  

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This Day in Liberal Judicial Activism—August 6



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1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey.  Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Week for Apr. 26, 1987).  In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes.  (See This Week for June 1, 1992.)  She also found that the state constitution protects obscenity.  (See This Week for May 17, 1993.)     

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This Day in Liberal Judicial Activism—August 3



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1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White.  Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg. 

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex?  (See here for documentation of the last several points.)  That’s what the media call a “mainstream” and “moderate” nominee.

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This Day in Liberal Judicial Activism—July 31



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1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service.  Imagine what he could have accomplished with more time!  (See This Week entries for Feb. 6, Feb. 14, May 3, May 22, and June 7.)  Even Sarokin’s reason—or, more precisely, his stated reason (see This Week for April 25, 1996)—for resigning is intensely political:  he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.”  In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling. 

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat.  In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

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This Day in Liberal Judicial Activism—July 30



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2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before:  Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster.  On September 4, 2003, Estrada withdraws his nomination.  Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist:  “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.”  Guess again, senator. 

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This Day in Liberal Judicial Activism—July 29



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1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court.  Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981.  Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit. 

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit.  With only two Senate Democrats voting yes, the cloture vote fails.  Owen, first nominated in May 2001, is ultimately confirmed in May 2005.  

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This Day in Liberal Judicial Activism—July 28



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2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.  You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices.  But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.”  Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”

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This Day in Liberal Judicial Activism—July 25



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1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.  

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter:  Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.”  His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary”.  On voting rights, he “was willing to defend the indefensible.”  He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade.  He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter has been far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter has read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

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This Day in Liberal Judicial Activism—July 22



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2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit.  Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005.  Saad, never confirmed, finally withdraws his nomination in March 2006.   

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This Day in Liberal Judicial Activism—July 20



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1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement.  As Jan Crawford Greenburg describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.…  It was that rare moment when a conservative president was positioned to replace a liberal giant.…  It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.”  But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”  Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.

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This Day in Liberal Judicial Activism—July 17



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2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.”  Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

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This Day in Liberal Judicial Activism—July 15



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2005—More mischief from the Wisconsin supreme court.  This time, the same four-justice majority as in Ferdon (see This Week for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.  As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.” 

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.  

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This Day in Liberal Judicial Activism—July 14



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1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity.  Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.”  Ten years later, President Clinton appoints Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).  Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums.  The rational connection between caps on noneconomic damages and lower premiums ought to be obvious.  Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”  

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This Day in Liberal Judicial Activism—July 10



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2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses.  Or so it says.  But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help.  By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes.  Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.”  (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”)  Three years later, the Nevada supreme court quietly repudiates its ruling.

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This Day in Liberal Judicial Activism—July 9



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1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet.  Exercising the illogic that earned her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment  because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”  But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.”

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This Day in Liberal Judicial Activism—July 6



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1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances.  Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence.  But our adversary system routinely depends on the parties to choose what evidence to present.  When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight. 

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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 Week for February 14, 1992, for the rest of the story.)   

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