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This Week in Liberal Judicial Activism—Week of April 21



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Geographical and moral confusion:

 
Apr. 25

1906—William J. Brennan, Jr., is born in Newark, New Jersey.  (For more on Brennan, see This Week entries for March 19 and March 22.)

 

1996—More Newark:  The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego.  A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.” 

Six weeks later, This Week all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton.  In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign.  (How could anyone withstand Bob Dole’s withering criticisms?)  In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.  (Both letters are here.)

 
  

Apr. 26

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods.  There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter.  Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist.  Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors.  But after Brewington stabs Majors, Middlebrooks does so as well.  Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death.  On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence.  In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution.  (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.)  Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally:  “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.”  Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit.  Meanwhile, on remand, Middlebrooks is again sentenced to death.  In 1999—twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.   

  

For an explanation of this recurring feature, see here. 

 

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This Week in Liberal Judicial Activism—Week of April 14, 2008



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Pileated woodpeckers, lemmings and other wonders:
  

Apr. 14     

1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit.  Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’”  But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.”  Cook nicely summarizes the broader problem with judicial activism:  “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”  

  

Apr. 18     

1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment.  Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Week for April 7, 1969).  And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.   

  

Apr. 19     

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.”  The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”  Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties.  “The river as plaintiff speaks for the ecological unit of life that is part of it.”  The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.”  “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing.  Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem. 

  
Apr. 20

2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech.  The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event.  The school ordered Harper not to wear the T-shirt.  Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.”  As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.”  But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints. 

Harper’s complaint was rendered moot after he graduated from high school.  In March 2007, the Supreme Court granted Harper’s petition for certiorari and vacated (i.e., wiped from existence) the Ninth Circuit’s ruling. 

  

For an explanation of this recurring feature, see here. 

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of April 7



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Intellectual obscenity, two Reinhardts, and three Barketts

  
Apr. 71969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material.  Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment.  Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.”  Yep, that carefully captures what viewing obscenity is all about.  (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)
  
Apr. 82005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt (see This Week entry for Mar. 27), rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph.  In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) unanimously reverses the Ninth Circuit. 
  
Apr. 92001—More Reinhardt.  A Ninth Circuit panel, in an opinion by Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments.  The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public.  The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent).  The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive.  In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.

  
Apr. 121990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest.  After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip.  Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross.  Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause.  Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

  
Apr. 132001—Judge Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman.  The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.”  Barkett asserts that the district court injunction properly barred “public student prayer”.
  

For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of March 31



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Evolving standards, Douglas’s arrival, and Blackmun’s departure: 

Mar. 31     1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime.  Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.)    

Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.”  Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.”  Asks Frankfurter rhetorically:  “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”  Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes. 

Apr. 4        1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote.  On the Court from 1939 until 1975, Douglas is the longest-serving justice in history.

In his 2003 New Republic review of a biography of Douglas (Wild Bill:  The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas’s judicial career:  “For Douglas, law was merely politics.”  Here’s Posner’s colorful fuller assessment:  “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended.  Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.” 

As Posner acknowledges, one can, of course, “be a bad person and a good judge, just as one can be a good person and a bad judge.”  By the evidence, Douglas was both a terrible person and a terrible judge.

 

Apr. 6        1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court.  His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.  As one of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”  Also from Lazarus:  “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”  (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  

 

For an explanation of this recurring feature, see here. 

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This Week in Liberal Judicial Activism—Week of March 24



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Stevens, Reinhardt, Barkett, Sarokin, and more:

 

Mar. 24     1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system 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.”  The court orders the General Assembly to “create an entirely new school financing system.”  (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

 

Mar. 25     1993—In her plurality opinion in Wyche v. State, Florida chief justice (and, thanks to President Clinton, current Eleventh Circuit judge) Rosemary Barkett strikes down as facially unconstitutional an ordinance that prohibits loitering for the purpose of prostitution.  Barkett strains to misread the ordinance as not requiring, as an element of the crime, a specific intent to engage in prostitution.  Further, she asserts that even if specific intent were required, the ordinance would still be unconstitutional because of the hypothetical possibility that it could be applied in a manner that would chill First Amendment speech. Never mind that it’s difficult to see how the ordinance would reach any constitutionally protected activity, much less the substantial quantum needed for First Amendment overbreadth doctrine to apply to a facial challenge.

In two other cases that same day (E.L. v. State and Holliday v. City of Tampa), Barkett similarly strikes down as facially unconstitutional ordinances prohibiting loitering for the purpose of engaging in drug-related activity.  So much for the ability of crime-ridden communities to combat the scourges of prostitution and drugs.

 

Mar. 27     1931—Stephen Reinhardt is born in New York.  Appointed to the Ninth Circuit by Jimmy Carter in 1980, Judge Reinhardt has earned notoriety as the “liberal badboy of the federal judiciary.”  In his overtly political view of judging, “The judgments about the Constitution are value judgments.  Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.”  Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.”

 

Mar. 29     2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections.  Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general.  So what?  As Justice Scalia responds:  “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”

 

Mar. 30     1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.”  In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring”.  But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional.  (See This Week entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of March 17



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St. Patrick’s Day, misplaying the Irish card, and the curious generative power of contraception: 

Mar. 17     1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.” 

 

Mar. 19     1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Week item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

 

Mar. 22     1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (a contrived case involving a law that had never been enforced) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “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.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of March 3



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Dred Scott, substantive due process, and the liberal plantation:

Mar. 6       1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute.  In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts:  “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”  

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent.  As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles:  “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.”  Further:   “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

 

                  1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process.  The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg).  But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation.  Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit.  This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy.

 

Mar. 8       1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Week entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented.  As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of February 25



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The oldest, most biased newspaper?, confused reliance on “international opinion”, and more: 

Feb. 25      1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this thitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.

 

Feb. 27      1998—In Brause v. Bureau of Vital Statistics, Anchorage trial judge Peter A. Michalski rules that Alaska’s statutory definition of marriage as between “one man and one woman” violates the state constitution unless Alaska can show a “compelling state interest” in support of its definition. In November 1998, Alaska voters approve, by a 68% to 32% margin, a state constitutional amendment defining marriage as between a man and a woman.  

Feb. 28      2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.

In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.”  
 

Mar. 1       1954—The Senate, by voice vote, confirms President Eisenhower’s nomination of former California governor Earl Warren to serve as Chief Justice. Warren was already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. 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.)

2005—Relying on “international opinion,” the Supreme Court, by a vote of 5 to 4, overturns its own precedent and rules in Roper v. Simmons that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. Roper starkly illustrates how the same justices who bow to the views of foreigners are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country.

When he was 17, Christopher Simmons planned a brutal murder. He assured his friends they could ‘get away with it’ because they were minors. In the middle of the night, Simmons and a friend broke into a woman’s home, awakened her, covered her eyes and mouth with duct tape, bound her hands, put her in her minivan, drove to a state park, walked her to a railroad trestle spanning a river, tied her hands and feet together with electrical wire, wrapped her whole face in duct tape, and threw her from the bridge. Exactly as Simmons planned, his victim drowned an unspeakably cruel death in the waters below.

Simmons confessed to the murder. At the death-penalty phase of his trial, the judge instructed the jurors that they could consider Simmons’ age as a mitigating factor, and the defense relied heavily on that factor. The jury recommended, and the trial judge imposed, the death penalty.

In his majority opinion (joined by Justices Stevens, Souter, Ginsburg, and Breyer), Justice Kennedy aims to discern “the evolving standards of decency that mark the progress of a maturing society.” Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in total—reject the death penalty for 16- and 17-year-olds. In dissent, Scalia counters that it makes no sense to count states that have no death penalty: “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.”

Kennedy then finds “respected and significant confirmation” for his ruling in “the overwhelming weight of international opinion against the juvenile death penalty.” According to Kennedy, the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child—which contains an express prohibition on capital punishment for crimes committed by juveniles—supports his conclusion that the juvenile death penalty is unconstitutional. But as Justice Scalia observes in dissent, “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States,” the United States’ non-ratification of Article 37 undercuts the majority’s position. Scalia also points out that the justices in the majority would never aim to conform American law to the rest of the world on matters like the exclusionary rule, church-state relations, and abortion. 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of February 18



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Misimagined “contemporary standards”, anti-religious bigotry, Blackmun’s tinkering, and quota lies:

 

Feb. 18      1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty. 

 

Feb. 20      1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Week entry for February 10, 1947.)

 

Feb. 22      1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

 

Feb. 23      1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat, where she serves with distinction (of a sort) to this day. (For more on Barkett’s egregious record, see here—and stay tuned.)

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of February 11



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Valentine’s Day flutters the hearts of liberal judicial activists, including a mother-son duo:  

Feb. 13      2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court.  Never mind, as dissenting judge O’Scannlain points out, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin).  As O’Scannlain observes: 

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

 

Feb. 14      1992—The Third Circuit hears oral argument on Morristown, New Jersey’s appeal of a wonderfully wacky ruling by federal district judge H. Lee Sarokin that the Morristown public library’s policies governing behavior in the library are facially unconstitutional. Richard R. Kreimer, a homeless man, camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.  The library then adopted written policies. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin ruled that the library was a traditional public forum like a street or sidewalk, that the carefully crafted policies were overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression.  Five weeks after oral argument, the Third Circuit unanimously reverses Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin had deprived other citizens of the right to use a library in peace.  Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library.  (For a fuller discussion of this This Week classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

1997
—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military).  Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity.  Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.”  According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited.  (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)


For an explanation of this recurring feature,
see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of February 4



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Judicial mischief on same-sex marriage, an ideal Clinton nominee, and the mythical “wall of separation”: 

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

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

 

Feb. 6        1992Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case.  The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality.  Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994.  The ABA gives Sarokin its highest “well qualified” rating.  Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

 

Feb. 10      1947In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state.  As University of Chicago law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.”  The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.”  Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.
 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of January 28



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Kerry’s bluster, O’Connor’s departure, and Kennedy’s profundities: 

 

Jan. 30      2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails.  The Senate’s longstanding tradition of providing Supreme Court nominees an up-or-down vote on the Senate floor is respected.

 

Jan. 31      2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire from active service takes effect.  Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise.  Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency.  Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases.  Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations. 

 

Feb. 3        1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell.  Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

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

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  Planned Parenthood v. Casey (1992).  Translation:  We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

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

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy.  Lawrence v. Texas (2003).  Translation:  We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

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

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of January 21



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Roe v. Wade and other pro-killer intrusions on representative government, Souter’s emergence, Kerry’s Davos-led filibuster, and Ginsburg’s loneliness:

 

Jan. 22      1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings.  In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion.  Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

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

 

Jan. 23      1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene.  After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”

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

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

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

Jan. 24      1990—President George H.W. Bush nominates New Hampshire supreme court justice David Hackett Souter to a seat on the First Circuit.  In a tragic blunder, less than three months after Souter accepts his First Circuit appointment, President Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.  Deploying his full arsenal of clichés, Teddy Kennedy rails against Souter’s Supreme Court nomination.  His efforts, alas, prove unsuccessful.

 

Jan. 26      2006—From the ski slopes of Davos, Switzerland, aristocrat and billionaire-by-marriage John Kerry panders to the faux-populist sentiment of the Left by calling for a filibuster of Supreme Court nominee Samuel Alito, who, Kerry fears, might actually believe that the Constitution leaves some important issues to the people to decide through their elected representatives.                  

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


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

 

For an explanation of this recurring feature, see here.

    

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of January 14



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Jan. 14      1989—“Kreimer’s odor prevents staff member from completing copying task.”  So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.  

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression.  (See This Week for May 22, 1991.)  The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds. 

 

Jan. 16      2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake.  When various religious groups sponsored an advertising campaign offering “healing for homosexuals”, the San Francisco board of supervisors sprang into action.  It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard.  It also adopted two formal resolutions.  One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder.  The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads. 

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

 

Jan. 17      2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler.  One year later—and nearly 18 months after his Senate Judiciary Committee hearing—Keisler’s nomination remains bottled up in committee.

 

Jan. 19      1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution. 

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

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

 

Jan. 20      1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine.  To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy.

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of January 7



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Jan. 7        2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, the seldom-credible Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito.  (See here for more.)

 

Jan. 9        1947—Emerging ex utero in New York City, Linda Greenhouse has her first “little crying jag”.  Some four decades later, the oh-so-objective-and-reliable Supreme Court reporter for the New York Times will take part in a pro-abortion rally in the midst of continuing contention over the Court’s concoction of a constitutional right to abortion.  And in 2006, in a speech recounting another “little crying jag” at a recent Simon and Garfunkel concert, she will complain about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” 

 

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

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

 

Jan. 11      1954— President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice.  Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953.  Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.”  Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition.  But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

 

Jan. 12      1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker.  Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no. 

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

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 31



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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).   

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 24



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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.”

 

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.

 

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 17



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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. 

 

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.

 

For an explanation of this recurring feature, see here.

 

Tags: This Day in Liberal Activism

This Week in Liberal Judicial Activism—Week of December 10



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Dec. 10     1986—By a vote of 5 to 4, the Supreme Court, in a majority opinion by Justice Thurgood Marshall, rules (in Tashjian v. Republican Party of Connecticut) that a Connecticut statute that requires voters in any party primary to be registered members of that party violates the First Amendment rights of the party and its members.  In dissent, Justice Scalia observes:

“In my view, the Court’s opinion exaggerates the importance of the associational interest at issue, if indeed it does not see one where none exists. There is no question here of restricting the Republican Party’s ability to recruit and enroll Party members by offering them the ability to select Party candidates; [the statute] permits an independent voter to join the Party as late as the day before the primary.  Nor is there any question of restricting the ability of the Party’s members to select whatever candidate they desire.…

“[E]ven if … the majority of the Party’s members wanted its candidates to be determined by outsiders, there is no reason why the State is bound to honor that desire—any more that it would be bound to honor a party’s democratically expressed desire that its candidates henceforth be selected by convention rather than by primary, or by the party’s executive committee in a smoke-filled room. In other words, the validity of the state-imposed primary requirement itself, which we have hitherto considered ‘too plain for argument,’ presupposes that the State has the right ‘to protect the Party against the Party itself.’  It is beyond my understanding why the Republican Party’s delegation of its democratic choice to a Republican Convention can be proscribed, but its delegation of that choice to nonmembers of the Party cannot.”

 

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—the fifth and latest moniker of the pro-abortion organization that dare not keep its name—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 3



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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.

 

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.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

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