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This Day in Liberal Judicial Activism—April 18



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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 Day 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.

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This Day in Liberal Judicial Activism—April 17



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2009—Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama.  In a speech to the Black, Latino, Asian Pacific American Law Alumni Assocation—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:

“The power of working together was, this past November, resoundingly proven.” 

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.” 

“On November 4, we saw past our ethnic, religious and gender differences.” 

“What is our challenge today:  Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat.

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This Day in Liberal Judicial Activism—April 16



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2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange.  Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment.  But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment. 

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”:  “Purer expression cannot be found of the principle of rule by judicial fiat.”

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This Day in Liberal Judicial Activism—April 14



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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.”    

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This Day in Liberal Judicial Activism—April 13



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2001—Judge Rosemary 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”.

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This Day in Liberal Judicial Activism—April 12



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1990—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.  

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This Day in Liberal Judicial Activism—April 9



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2001—A Ninth Circuit panel, in an opinion by Stephen 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.

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This Day in Liberal Judicial Activism—April 8



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2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, 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.

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This Day in Liberal Judicial Activism—April 7



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1969—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.) 

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This Day in Liberal Judicial Activism—April 6



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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.)

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This Day in Liberal Judicial Activism—April 4



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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.

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This Day in Liberal Judicial Activism—April 3



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2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators.  Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.”  In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.”  Conrad’s nomination will expire months later without his ever receiving a hearing.

2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.” 

Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.”  An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998.  But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government.  Or, as the court puts it in activist gobbledygook:

The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change. 

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This Day in Liberal Judicial Activism—April 1



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2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place.

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This Day in Liberal Judicial Activism—March 31



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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. 

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This Day in Liberal Judicial Activism—March 30



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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 Day entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)

2001—After nearly six years in which his preliminary injunction has operated to prevent Indiana from implementing an informed-consent statute for abortion that is materially identical to the provisions that the Supreme Court held to be constitutionally permissible in 1992 in Planned Parenthood v. Casey, federal district judge David F. Hamilton enters a permanent injunction against the statute.  In doing so, Hamilton rests heavily on a statistical study, conducted by a sociologist at the Alan Guttmacher Institute, that related entirely to the effects of a waiting-period provision in Mississippi.  Never mind that the Seventh Circuit had already determined, in a 1999 case involving Wisconsin’s informed-consent law, that the Mississippi study should not be relied on.  A Seventh Circuit panel (with abortion radical Diane Wood in dissent) later reverses Hamilton’s injunction.

In 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to a federal appellate seat.

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This Day in Liberal Judicial Activism—March 29



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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.”

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This Day in Liberal Judicial Activism—March 27



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 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.”

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This Day in Liberal Judicial Activism—March 26



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 2009—In an academic paper titled “Bias and the Bar:  Evaluating the ABA Ratings of Federal Judicial Nominees,” political scientists Richard L. Vining, Jr., Amy Steigerwalt, and Susan Navarro Smelcer present their statistical findings that “suggest the presence of some systematic bias towards Democratic nominees in the ABA’s ratings.”  Among their findings:  “In sum, when we isolate the effect of ideology, we find that, all else being equal, liberal nominees are more likely to receive the highest possible rating than their conservative counterparts.”

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This Day in Liberal Judicial Activism—March 25



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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.

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This Day in Liberal Judicial Activism—March 24



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 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.)

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit.  Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice.

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