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No More “This Week”



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For various reasons, I’ve decided to recast “This Week in Liberal Judicial Activism” as “This Day in Liberal Judicial Activism”. As the recasting indicates, instead of having one weekly post, I’ll have frequent daily posts.  I’ll also continue to add new material.

After nearly two years of “This Week” entries, I’ll repeat a few points of explanation about this feature:

1.  For rulings on questions of constitutional law, I use the term “liberal judicial activism” to identify judicial decisions that wrongly override laws or policies that flow from the democratic processes and instead entrench, in the name of the Constitution, liberal policy preferences.

2.  I use the term “judicial passivism” for judicial decisions that make the opposite error—that fail to enforce constitutional guarantees.  Because the two errors are often related—it’s no surprise that justices and judges who embrace the make-it-up-as-you-go-along approach to inventing rights that aren’t in the Constitution also will ignore rights that are in it—I may occasionally include instances of liberal judicial passivism. 

3.  For rulings on non-constitutional questions, I use the term “liberal judicial activism” to identify judicial decisions that implausibly construe legal texts to reach liberal policy results.

4.  I will not be probing the subjective motivations of judges.  To identify a decision as an instance of liberal judicial activism does not necessarily mean that I am alleging that the judges responsible for the decision have indulged, deliberately or otherwise, their own policy preferences, though I certainly believe that often to be the case.  It might instead be that they misconceive the judicial role or that they simply err.  In terms of the injury done to American citizens’ power of self-governance, the cause of the error is of little interest.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 29



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Punishing a real Bad Marriage, Barkett’s “socially redeeming” killer, and Stevens’s hallucination: 

 

 

Dec. 30

2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage.  Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend.  His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court.  Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.”  Never mind, as dissenting judge Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend.  In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time:  Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

Jan. 2

1992—With their remarkable dissent in Dougan v. State, Rosemary Barkett and two of her Florida supreme court colleagues give a wild start to the New Year.  The case arose from these facts:  In 1974 Jacob John Dougan and four other members of his Black Liberation Army began implementing their plan to (in the words of the trial judge) “indiscriminately kill white people and thus start a revolution and a race war.”  Armed with a pistol and a knife, they picked up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drove him to a trash dump, stabbed him repeatedly, and threw him to the ground.  As Orlando writhed in pain and begged for his life, Dougan put his foot on Orlando’s head and shot him twice—once in the chest and once in the ear.  Later, Dougan made tape recordings bragging about the murder and mailed 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.”  Dougan was convicted of murder and sentenced to death.

Some 18 years after the killing, on Dougan’s sixth appeal to the Florida supreme court, Justice Parker McDonald, joined by Chief Justice Leander Shaw and Justice Barkett, opine in dissent that the death penalty is a disproportionate sentence under the circumstances.  The dissent includes these striking 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.)

2007—“I can see myself as a conservative, to tell you the truth, a judicial conservative,” hallucinates Justice John Paul Stevens.

Jan. 3

2005—The Kansas supreme court rules (in Montoy v. State) that the state statutory scheme for funding public schools in Kansas violates the state constitutional provision that states that the legislature “shall make suitable provision for finance of the educational interests of the state.”  The court asserts that “increased funding” is needed to meet the supposed and separate constitutional requirement that the state’s educational system must always be getting better and better.  Beyond that, however, the court is unable to provide any clear guidance on what the legislature is required to do:  “The equity with which the funds are distributed and the actual costs of education, including appropriate levels of administrative costs, are critical factors for the legislature to consider in achieving a suitable formula for financing education.”  Ah, that’s very helpful.

Three concurring justices would pull off an even more audacious judicial power grab by holding that education is a fundamental right under the state constitution (and by overruling the court’s 1995 precedent to the contrary).

 

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 22



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ABA scalping, grinching, and misassembling gifts:

 

 

Dec. 23

2006—In the wake of the Democratic takeover of the Senate, newspapers report that Mississippi attorney Michael B. Wallace has decided to ask President Bush not to renominate him to a Fifth Circuit vacancy.  Wallace’s nomination had previously suffered from the ABA’s thoroughly scandalous “not qualified” rating.  Although it determined that Wallace “has the highest professional competence” and “possesses the integrity to serve on the bench,” the ABA judicial-evaluations committee found him lacking on the highly malleable element of “judicial temperament.”  Bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and flat-out perjury infected the ABA’s treatment of Wallace.

Dec. 25

1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building.  In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’.  As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene.  The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. 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.”  Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity.  Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.  

Dec. 27

1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis.  The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement.  (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.”  He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.”  “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.”  But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier.  In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career:  “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.”  Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”  

 

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 15



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Little Brennans on state supreme courts:

 

 

Dec. 18

1997Best is worst—Best v. Taylor Machine Works, that is.  In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act.  Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation.  In twisted confusion over which branch has the authority to make law, it also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.”  Under the “special” legislation pretense, the court strikes down, too, the act’s abolition of the common-law doctrine of joint and several liability.  And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”

Dec. 20

1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”  In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples.  So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples. 

For an explanation of this recurring feature, see here.

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 8



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Table dancing, Brennan’s stealth, and NARAL’s insights:

 

 

Dec. 8

1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude.  In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.”  Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing.  The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.”  Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.”  Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

Dec. 9

1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing marijuana plants) since he should reasonably have foreseen that the yard could be viewed over the fence or from aircraft.  In dissent, then-chief justice Rosemary Barkett confuses the threshold issue whether a reasonable expectation of privacy existed with the logically subsequent question whether a police search based on an anonymous tip was reasonable.

Dec. 11

2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years previously—when it first ruled that Ohio’s existing system of financing its public-school system somehow violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.”  The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.  Some six months later, the court will finally end the litigation.  Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.

 

 

Dec. 13

1971—The initial Supreme Court oral argument in Roe v. Wade takes place.  The case ends up being carried over to the next term and re-argued in October 1972.  In the meantime, the Court issues its ruling in Eisenstadt v. Baird, which extends a right to contraception to unmarried persons.  (See This Week for March 22, 1972.)  Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple extraneous words:  “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”  In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

 

 

Dec. 14

2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth:  The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.”  Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations.  The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

 

 

For an explanation of this recurring feature, see here.

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 1



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Subverting text and practicing faux originalism:

 

 

Dec. 5

1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist.  Consider now-Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona.  Florida’s speedy-trial rule generally provided that every person charged with a felony shall be brought to trial within 180 days of the charge or be forever protected from prosecution on that charge.  Under an express exception (“(b)(1)”) to the rule, a “person who is … incarcerated in a jail or correctional institution outside the jurisdiction of this State … is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending.”  But Barkett rules that the 180-day period for a person who had been charged with bank robbery in Florida ran while he was incarcerated in California, as she reads into the (b)(1) exception the additional requirement that the person have been incarcerated on charges pending in the other state.

Some two years later, the Florida Supreme Court unanimously reverses Barkett’s ruling.  “The language of (b)(1),” it concludes, “is without ambiguity….  Clearer language than this is difficult to envisage.  Yet the lower court [i.e., Barkett] puts a gloss on it, unwarranted by anything that appears in [the speedy-trial rule].”

2002—Liberal judicial activists, usually so dismissive of originalist jurisprudence, will resort to originalist, or at least originalist-sounding, arguments when it suits them.  In a lengthy historical exegesis in Silveira v. Lockyer, Ninth Circuit judge Stephen Reinhardt concludes that the Second Amendment does not confer any individual right to own or possess any firearms.  Among other things, Reinhardt determines that the term “bear arms” “generally referred to the carrying of arms in military service—not the private use of arms for personal purposes,” and that the term “keep” (in “keep and bear arms”) was not broader in scope than “bear”.

Dissenting months later from the denial of rehearing en banc, Judge Kozinski observes:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text.…  But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.  It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”

In another opinion dissenting from the denial of rehearing en banc, Judge Kleinfeld (joined by Kozinski and two other judges) criticizes Reinhardt for “swim[ming] against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article”—by a former Reinhardt clerk, as it happens—“that claims ‘keep and bear’ means the same thing as ‘bear,’ which itself means only to carry arms as part of a military unit.”  “The military meaning,” Kleinfeld acknowledges, is certainly among the meanings of ‘bear,’ as is ‘large, heavily built, furry, four-legged mammal,’ and ‘investor pessimistic about the stock market.’  But the primary meaning of ‘bear’ is ‘to carry,’ as when we arrive at our host’s home ‘bearing gifts’ and arrive at the airport ‘bearing burdens.’”  And “keep,” Kleinfeld points out, has the primary meaning of “to retain possession of”—and poses an interpretive challenge only for “those who have chosen in advance to evade the ordinary meaning of the word.”  Kleinfeld also explains that the phrase “the right of the people”—which Reinhardt “simply skips over”—refers to an individual right in the usage of the Bill of Rights.

In June 2008, in District of Columbia v. Heller, all nine justices reject Reinhardt’s position (even as they split 5-4 on the scope of the individual Second Amendment right).

For an explanation of this recurring feature, see here.

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of November 24



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Ford’s misjudgment, Blessed Thanksgiving!, the Third Circuit’s un-Solomonic ruling, Reinhardt, Kennedy, and worse:

 

 

Nov. 24

2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion.  The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health.  In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception.

On review, the Supreme Court rules unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate.

Nov. 27 

2008—Happy Thanksgiving!  Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast.  In the words of Washington:

“Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness’:

“Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enable to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

“And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.”

Nov. 28

1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas.  Not long before his death at the end of 2006, Ford rashly states that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause.  But Ford’s actions belie his words, for (as this essay explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law.  

Nov. 29

2004—Objecting to government policy on homosexuals in the military, many law schools restricted the access of military recruiters to their students.  In response, Congress enacted the Solomon Amendment, which provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access. 

In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.”  According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.

On review, the Supreme Court unanimously reverses, in an opinion by Chief Justice Roberts.  Roberts makes short work of the Third Circuit’s reasoning.  The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.”  Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”  Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.

Nov. 30

1979—President Carter nominates This Week Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit.

1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. Ginsburg’s decision not to proceed with his intended nomination, President Reagan nominates Ninth Circuit judge Anthony M. Kennedy to fill the seat vacated by retired Justice Lewis F. Powell Jr.

1989—By a vote of 4 to 3, the Florida supreme court concocts a categorical rule that police violate the Fourth Amendment when they conduct drug searches by boarding intercity buses and questioning passengers.  In her melodramatic majority opinion (in Bostick v. State), Justice Rosemary Barkett posits that the “intrusion upon privacy rights caused by the [practice] is too great for democracy to sustain,” and she equates the police conduct with methods employed by Nazi Germany. 

On review, the Supreme Court (in Florida v. Bostick) rejects Barkett’s rule by a 6 to 3 vote (with Marshall, Stevens, and Blackmun in dissent).  Justice O’Connor’s majority opinion determines that the same totality-of-the-circumstances inquiry that governs whether “encounters that take place on a city street or an airport lobby” constitute a seizure “applies equally to encounters on a bus.”

On remand, Barkett again concludes that an unlawful seizure occurred.  This time, though, she is in dissent.

 

 

For an explanation of this recurring feature, see here.

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of November 17



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Mrs. Anthony Lewis, monkey business, and modern pioneering:

 

 

Nov. 18

2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution.  The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.

Nov. 22

2006—It’s monkey business as usual at the Ninth Circuit.  A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable.  Judge Kozinski concludes his thorough dissent with this summary:

“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”

Nov. 23

1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.”  To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy:  as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”  Never mind that its supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.”  (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).  A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.”  He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”  

For an explanation of this recurring feature, see here.

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of November 10



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Sham arrests, the Zion of the South, Blackmun’s emergence, white liberals vs. female conservatives, and real irrationality:

 

 

Nov. 10

1961—Phony cases make silly law.  Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced.  They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut.  (See This Week for June 7, 1965.)

1992—Is orthodox Judaism the state religion of Georgia?  A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause.  Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display.   

Nov. 12

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb.  Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade.  (See This Week for Jan. 22, 1973.)  Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given. 

1975—Justice William O. Douglas (see This Week for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

Nov. 13

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit.  Less than four weeks later, the Senate confirms Breyer’s nomination.

Nov. 14

2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit.  Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.   Brown is confirmed in June 2005, nearly two years after she was first nominated.  Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.

Nov. 16

1993—In Steffan v. Perry, a trifecta of Carter appointees on the D.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct.  Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.”  One year later—after Mikva’s resignation—the en banc D.C. Circuit reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).

 

 

For an explanation of this recurring feature, see here.

 

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This Week in Liberal Judicial Activism—Week of November 3



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Unseating miscreants, smearing chocolate, Pryor restraints, and more:

 

 

Nov. 4

1986—What do actual citizens think of liberal judicial activists?  By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no).  All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983.  Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

Nov. 5

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid.  Or so some minds imagine.  In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”  As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically.  As Scalia puts it:  “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute.  Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.” 

Nov. 6

2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit.  Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it. 

In February 2004, President Bush recess-appoints Pryor to the seat.  And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat.

Nov. 7

2000—So much for respecting a capital inmate’s final wishes.  Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief.  But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.”  Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.  

For an explanation of this recurring feature, see here.

 

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This Week in Liberal Judicial Activism—Week of October 27



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Denying the facts and defying common sense:

 

 

Oct. 30

2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.”  The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect.  In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding.  The statements, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.”  In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent. 

Oct. 31

1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket.  The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.”  On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

Nov. 2

2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity.  The 10-member majority rests its conclusion on the combined force of facts that include:

(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds.  Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack.  But other means would have generated a currency-transaction report.

(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.

(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.

(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.

(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.

(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.

(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).

Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.”  Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise. 

For an explanation of this recurring feature, see here.

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of October 20



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Bazelon’s disregard for precedent, death by racial quota, the mystery of a pointed gun, the Declaration of Independence as a same-sex-marriage manifesto, and more: 
  
Oct. 202006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court.  Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election.  In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.
  
Oct. 211949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit.  With a  lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status.  On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent:  “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.”  The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship:  In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants.  Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”

  
Oct. 221992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty?  Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short.  The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause. 

Undeterred, in Foster v. State Florida chief justice (and, since 1993, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation.  Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution.  And there are no apparent limits to the statistical evidence that she regards as relevant:  “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible.  In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office.  There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes.  As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.” 

  
Oct. 231987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.
  
Oct. 251957—No case is too easy for a liberal judicial activist to mess up.  In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery.  What was that evidence?  As Judge David L. Bazelon, in dissent, summarizes it:  “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.”  “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”!  In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery. 

2006
— Who knew that the Declaration of Independence was a declaration of same-sex marriage?  Echoing the Declaration of Independence, the New Jersey constitution provides:  “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”  Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples. 

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of October 13



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Skelly Wright on drugs, Brennan’s recess appointment, and Douglas:
  
Oct. 141983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration?  Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections. 

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.”  In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.” 

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable.  Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.

  
Oct. 151956—So much for basing Supreme Court selections on short-term political calculations.  Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.  That decision appears to have been as unnecessary as it was foolish:  Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college.  And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.
  
Oct. 161898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.  (See This Week entry for April 4, 1939, for Judge Richard A. Posner’s colorful summary of Douglas’s life and career.)
  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of October 6



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Greenhouse’s ethics, Barkett and lovers’ quarrels, and more:
  
Oct. 82006New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”  According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.”  Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions….  Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….   Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

  
Oct. 91986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death.  Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town.  When he returned a couple months later, Williams had begun a new relationship.  Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her.  He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.”  On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett.  (Congratulations, by the way.)  Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains:  “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”

  
Oct. 111990—More from Florida justices Rosemary Barkett and Gerald Kogan.  In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional.  In a brief dissent, Barkett, joined by Kogan, asserts:  “A basic legal problem with the criminalization of obscenity is that it cannot be defined.…  Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.”  Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”  But Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections.  Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity. 

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of September 29



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The myth of judicial supremacy:
 
Sept. 291958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy.  The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program.  After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.”  Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply.  As leading liberal scholar Laurence Tribe recently acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”  Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

  
Oct. 21953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice.  In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969. 

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.”  That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan.  To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.

  
Oct. 51995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.”  In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.  Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.”  Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”:  “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.”  Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures. 

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Park) shows.  In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit:  “The Ninth Circuit had no warrant to proceed as it did.  The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.”  Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains.  First, the cause of action under which the plaintiff sued creates no remedy against a state.  Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor.  Ginsburg notes this “lapse” in Reinhardt’s reasoning:  “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision.  Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes:  “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask:  Is this conflict really necessary?”  Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of September 15



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Sept. 17A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts.  In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990.  As a justice, Souter has misread 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), and imposition of secularism as the national creed.

  
Sept. 191994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton.  A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench.  As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering.  Here are a couple examples of Mikva’s creative opinions: 

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless.  In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights.  A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.”  On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct.  In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.”  One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of September 8



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Christopher Simmons, Charles Schumer, and the mainstream: 
  
Sept. 91993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors.  In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge.  Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder.  At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor.  The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment.  (See This Week for Mar. 1, 2005.)  In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’” 

  
Sept. 122005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins.  Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream”.
  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of September 1



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The “remarkable” Ninth Circuit, Leahy’s model judge, a seminal case, and the Florida supreme court:
  
Sept. 22003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review.  The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.  In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule.  She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit.  Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling.  By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure.

  
Sept. 41992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus (internal quotation marks omitted), the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Week all-star) H. Lee Sarokin has created such exceptional circumstances.  Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged 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 had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced.  Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case.  The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality. 

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy—the lead obstructer of President George W. Bush’s judicial nominees—displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

  
Sept. 52001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated.  An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.
  
Sept. 72000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.  Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball”.  You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court”, but the amendment “effectively strikes the state Clause from the constitutional scheme.”  (Huh??  The ballot title and summary provide a far more accurate description of the amendment than the majority does.)  And, the majority continues, the ballot summary supposedly failed to “mention[]—or even hint[] at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.”  (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)
  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of August 25



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Unintended consequences, and Ginsburg’s disparate hiring:
  
Aug. 30

1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.”  Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.” 

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it  rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees.  Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

“[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…   Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.”

Ah, the unintended consequences of liberal judicial activism:  According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.”  Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980.   

2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court.  Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association.  Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation.  In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary.  Out of 57 employees, zero blacks. 

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of August 18



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Liberal ethics and the unendangered species of judicial activists:
 
Aug. 19  2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights”.  In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.
  
Aug. 212007In an op-ed in the Washington Post, Nan Aron of the Alliance for Justice continues the Left’s scurrilous attack on the nomination of Judge Leslie Southwick to a seat on the U.S. Court of Appeals for the Fifth Circuit.  But with the critical support of California Democrat (and Senate Judiciary Committee member) Dianne Feinstein, Southwick is ultimately confirmed by a 59 to 38 vote. 
  
Aug. 232006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Week for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case.  Just as the supposed legal ethicists on the Left recklessly fling flimsy ethics charges against judicial conservatives, they race to dismiss more substantial charges against liberal judicial activists.

Consider, for example, law professor Stephen Gillers’s breezy assertion that “the fact that [Judge Taylor] sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping.”  This is the same Gillers who, in the midst of Chief Justice Roberts’s confirmation process, offered the badly flawed opinion that Roberts, as a D.C. Circuit judge, should have recused himself from the Hamdan case because “the public can never know” how the prospect of a Supreme Court nomination might have affected his thinking.  The same Gillers who recklessly opined that Justice Scalia’s participation in a legal seminar sponsored by a group that does not litigate raised serious ethical concerns.  The same Gillers who, in advice that other ethics gurus questioned, advised Justice Breyer that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.  Anyone notice a pattern?

  
Aug. 241995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA.  Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision.  Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning.  In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

  
For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

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