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This Day in Liberal Judicial Activism—February 13



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2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court.  Never mind, as dissenting judge O’Scannlain points out, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin).  As O’Scannlain observes: 

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.”

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This Day in Liberal Judicial Activism—February 10



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1947In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As 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.

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This Day in Liberal Judicial Activism—February 6



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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.  Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

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This Day in Liberal Judicial Activism—February 4



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2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).

2005
—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as between a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, reverses this ruling.

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This Day in Liberal Judicial Activism—February 3



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1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell.  Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power.  While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous.  Kennedy’s distinctive contribution to the Court is a series of inanities presented as profundities.  To cite but a few examples:

“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.”  Planned Parenthood v. Casey (1992).  Translation:  We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”  Roper v. Simmons (2005).  As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“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.  Lawrence v. Texas (2003).  Translation:  We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”  Ashcroft v. Free Speech Coalition (2002) (emphasis added).  It’s odd (and perhaps explains quite a lot) that Kennedy would think that speech (including opinion-writing?) should precede thinking.  The notion is especially odd in a case concerning virtual child pornography.

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This Day in Liberal Judicial Activism—January 31



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2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire from active service takes effect.  Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise.  Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency.  Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases.  Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations. 

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This Day in Liberal Judicial Activism—January 30



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2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails.  The Senate’s longstanding tradition of providing Supreme Court nominees an up-or-down vote on the Senate floor is respected.

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This Day in Liberal Judicial Activism—January 26



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2006—From the ski slopes of Davos, Switzerland, aristocrat and billionaire-by-marriage John Kerry panders to the faux-populist sentiment of the Left by calling for a filibuster of Supreme Court nominee Samuel Alito, who, Kerry fears, might actually believe that the Constitution leaves some important issues to the people to decide through their elected representatives.                  

2007—Continuing her practice of hiding behind sexist stereotypes when they suit her, Justice Ginsburg laments being “all alone on the court” a year after Justice O’Connor’s retirement, and she asserts that she and O’Connor “have certain sensitivities that our male colleagues lack.”  Ginsburg garners the Weekly Standard’s sympathies.


Perhaps Ginsburg is just emoting publicly about how lonely she is.  But it seems more sensible to read her comments as clamoring for the next Supreme Court appointment to be a woman or as criticizing the effect that Justice Alito’s replacement of O’Connor is having on pending cases.  Neither would seem becoming of a justice. 

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This Day in Liberal Judicial Activism—January 24



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1990—President George H.W. Bush nominates New Hampshire supreme court justice David Hackett Souter to a seat on the First Circuit.  In a tragic blunder, less than three months after Souter accepts his First Circuit appointment, President Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.  Deploying his full arsenal of clichés, Teddy Kennedy rails against Souter’s Supreme Court nomination.  His efforts, alas, prove unsuccessful.

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This Day in Liberal Judicial Activism—January 23



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1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene.  After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”

Some five years later, in Thompson v. Oklahoma, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that (as Justice Scalia’s dissent aptly summarizes it) forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.”  (As Scalia points out in a later dissent, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”)

1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct.  Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence.  Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.” 

Despite—or, rather, because of—her stunningly terrible record as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994.   She remains on the Eleventh Circuit, where she has continued her malfeasance.

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This Day in Liberal Judicial Activism—January 22



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1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings.  In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion.  Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.

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This Day in Liberal Judicial Activism—January 20



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1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine.  To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy.

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This Day in Liberal Judicial Activism—January 19



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1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution. 

1989
—Call it the Case of the Surprised Burglar.  Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night.  The former girlfriend, having received threats from him, was spending the night elsewhere.  But her roommate was at home.  When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field.  Hudson was convicted and sentenced to death.

In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”

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This Day in Liberal Judicial Activism—January 17



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2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler.  But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction.

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This Day in Liberal Judicial Activism—January 16



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2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake.  When various religious groups sponsored an advertising campaign offering “healing for homosexuals”, the San Francisco board of supervisors sprang into action.  It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard.  It also adopted two formal resolutions.  One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder.  The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads. 

In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine.  But as Judge John T. Noonan observes in dissent:  “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.…  [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation.  [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

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This Day in Liberal Judicial Activism—January 14



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1989—“Kreimer’s odor prevents staff member from completing copying task.”  So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently 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.  

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule 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.  (See This Week for May 22, 1991.)  The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds. 

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This Day in Liberal Judicial Activism—January 12



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1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker.  Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no. 

Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton:  “Power tends to corrupt and absolute power corrupts absolutely.  Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.”  As Seventh Circuit judge Richard A. Posner has written (see This Week for April 4, 1939), Douglas was certainly a bad man:  “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice.…  Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge.” 

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This Day in Liberal Judicial Activism—January 11



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1954— President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice.  Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953.  Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.”  Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition.  But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

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This Day in Liberal Judicial Activism—January 9



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1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion).  Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.  This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute.  

JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.” 

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This Day in Liberal Judicial Activism—January 7



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2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, the seldom-credible Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito.  (See here for more.)

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