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This Day in Liberal Judicial Activism—June 5



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1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary.  Sirhan’s death sentence for the crime is voided when the California supreme court in 1972 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 misimagines contemporary standards to be.  (See This Week for February 18, 1972.)  

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This Day in Liberal Judicial Activism—June 1



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1992—In Davis v. Davis, the Tennessee Supreme Court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic.  Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos:  “Ordinarily, the party wishing to avoid procreation should prevail.…”  Daughtrey extrapolates 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.  She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes.  By her opinion, Daughtrey contrives to establish a Tennessee version of Roe.  (In 1993, President Clinton appoints Daughtrey to the Sixth Circuit.)

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This Day in Liberal Judicial Activism—May 31



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1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period.  There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.”  Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty. 

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism.  Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application.  (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

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This Day in Liberal Judicial Activism—May 29



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1992—According to Jan Crawford Greenburg’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.”  The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge.  One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role.  (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk?  Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf.  An excerpt from Justice Scalia’s classic dissent:

“If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf.  Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

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This Day in Liberal Judicial Activism—May 23



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1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing.  After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials.  Mapp is convicted of possession of these materials.  The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court.  The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914.  In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation:  “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.” 

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This Day in Liberal Judicial Activism—May 22



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1991—Federal district judge H. Lee Sarokin delivers a This Week classic.  (Yes, faithful readers have encountered this case before, but Sarokin’s escapade deserves special attention.)  The backdropRichard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public 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 setting forth minimal standards of patron behavior.  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 rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are 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.  On appeal, the Third Circuit unanimously reverses Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin 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.

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This Day in Liberal Judicial Activism—May 21



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2008—A rogue Ninth Circuit panel rules in Witt v. Department of Air Force that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” law governing homosexuals in the military “satisfy an intermediate level of scrutiny under substantive due process.”  Among its sloppy errors, the panel neglects even to consider whether the military context calls for a lower standard of scrutiny. 

In a petition for rehearing en banc, the United States argues that the Ninth Circuit decision “creates an inter-circuit split, … a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military.”  But in one of her early actions as Solicitor General—and contrary to her confirmation commitment to defend the “Don’t Ask, Don’t Tell” law “with vigor”—Elena Kagan declines to seek Supreme Court review of the decision.

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This Day in Liberal Judicial Activism—May 20



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1996—What’s one way to deal with unhelpful precedent?  Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.  In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal.  A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing special protections upon those engaged in homosexual conduct.  Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause.  (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having  seriously eroded Bowers.)  Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

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This Day in Liberal Judicial Activism—May 18



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1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000.  Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990.  According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”  The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts.  Just kidding:  There is no sign that follow-up investigations of any sort ever took place.

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This Day in Liberal Judicial Activism—May 17



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1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance.  Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.” 

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution.  The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”  Later that same year, President Clinton appoints Daughtrey to the Sixth Circuit.  

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This Day in Liberal Judicial Activism—May 15



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2008The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution.  Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences.  Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.”  In a sense, yes—when those provisions are faithfully and properly interpreted and applied.  But not when judicial activists like George abuse them.

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage.  Perhaps plotting its next usurpation, the California supreme court is now considering various challenges to the validity and effect of Proposition 8.

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This Day in Liberal Judicial Activism—May 14



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1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court.  Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959.  Before that, he had been in-house counsel for the Mayo Clinic.  His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor.  Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Week for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.     

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This Day in Liberal Judicial Activism—May 13



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1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution.  Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.”  But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse:  Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers.  While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award.  In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention.  So much for the fact and appearance of impartiality.   

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This Day in Liberal Judicial Activism—May 12



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2005—Federal district judge Joseph F. Bataillon, appointed by—surprise!—President Clinton, rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause.  One year later, a unanimous Eighth Circuit panel reverses all of these rulings.  

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This Day in Liberal Judicial Activism—May 10



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2009—Happy Mother’s Day!  No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day.  Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”  In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex.  (See here for relevant excerpts from the report.)

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is not as fortunate as Kavanaugh.  In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified”.   After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.  

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This Day in Liberal Judicial Activism—May 8



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2006—When left-wing activist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating.  Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”.  Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36.  (See here for a fuller account.)     

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This Day in Liberal Judicial Activism—May 5



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1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples.  In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.   

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This Day in Liberal Judicial Activism—May 4



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1984—When is an express signed waiver of Miranda rights not a waiver?  When you try to conceal your identity by signing a false name.  So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez).  Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights.  He signed the form, but, intent on concealing his identity, signed someone else’s name.  Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights:  defendant may well have believed that by using a false name he was not committing himself to anything.” 

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession”.  A more blatant defiance of controlling authority of a higher court is difficult to imagine. 

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This Day in Liberal Judicial Activism—May 3



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1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority.  The result is that white firefighters with more seniority were to be laid off in favor of minority firefighters with less seniority.  In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking!  Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters:  “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.” 

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This Day in Liberal Judicial Activism—May 1



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1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read:  Catholic) high school violates the Establishment Clause.  One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote.  Chief Justice Rehnquist’s majority opinion states:  “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.”  Justices Blackmun, Stevens, O’Connor and Souter dissent. 

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees.  The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture.  Owen’s nomination is finally confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.   

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