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This Day in Liberal Judicial Activism—January 12



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

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

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This Day in Liberal Judicial Activism—January 11



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

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This Day in Liberal Judicial Activism—January 10



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2006— Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.

Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu  evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now. 

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This Day in Liberal Judicial Activism—January 9



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

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

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This Day in Liberal Judicial Activism—January 7



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

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This Day in Liberal Judicial Activism—January 4



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2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials in the district.”

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This Day in Liberal Judicial Activism—December 31



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2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business days. Why the rush? Walker is presiding over the challenge to California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage (in reaction against a lawless state supreme court ruling). His New Year’s Eve surprise is a critical step in his effort to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s supporters. Broadcasting the upcoming trial would generate much greater publicity for ringmaster Walker’s circus and would also surely heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation and abuse.

Two weeks later, the Supreme Court blocks Walker’s kangaroo-court procedures. The per curiam majority opinion issues a stinging rebuke of Walker’s shenanigans:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

2009—By a vote of 4 to 3, the Montana supreme court rules (in Baxter v. Montana) that a physician who assists a patient in committing suicide cannot be prosecuted for the crime of aiding a person to commit suicide because the patient’s consent to the physician’s assistance provides a complete defense. The majority invokes a general statute that establishes consent as a defense to criminal charges and holds that the exception under that statute for conduct against public policy doesn’t apply. But, as the dissent argues, Montana law has expressly prohibited assisting suicide for over a century, so assisted suicide is plainly against public policy and the defense of consent is therefore not available.

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This Day in Liberal Judicial Activism—December 30



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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 Consuelo 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.

2008—Poor Stephen Reinhardt.  The Ninth Circuit arch-activist who has made a career of defying the Supreme Court—“They can’t catch them all,” he boasts of his wayward rulings—purports to take offense that a dissent from the denial of rehearing en banc in Belmontes v. Ayers (see This Day for June 13, 2008) implies that his rulings in that case have “flouted the will of the Supreme Court.”  Some eleven months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses Reinhardt—the third time in this same case that the Court has reversed or vacated one of his rulings.  Further, the Court states that it finds his reasoning incomprehensible and fanciful, and it notes his manipulative recharacterization of the evidence.  (See This Day for November 16, 2009.)

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This Day in Liberal Judicial Activism—December 28



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2005—“Allah” yes, “Christ” no.  Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers.  Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”

In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).

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This Day in Liberal Judicial Activism—December 27



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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.”

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This Day in Liberal Judicial Activism—December 25



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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.

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This Day in Liberal Judicial Activism—December 20



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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.

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This Day in Liberal Judicial Activism—December 19



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2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to ban same-sex marriage.  Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the supreme court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California:  one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

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This Day in Liberal Judicial Activism—December 18



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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.

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This Day in Liberal Judicial Activism—December 14



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

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

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This Day in Liberal Judicial Activism—December 13



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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 Day 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.”

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This Day in Liberal Judicial Activism—December 11



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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.

2009—Federal district judge Nina Gershon rules that a provision of federal appropriations law that restricts funding of the scandal-plagued ACORN organization is an unconstitutional bill of attainder. In holding that the deprivation of the opportunity to apply for discretionary federal funds “falls within the historical meaning of legislative punishment,” Gershon finds “particularly instructive” the Supreme Court’s 1946 ruling in United States v. Lovett. But Lovett involved a permanent proscription on further employment in the federal government by three federal employees, not a temporary bar on applications for federal funding by an organization. Somehow Gershon doesn’t see fit to explore carefully whether these obvious differences matter.

In August 2010, a unanimous Second Circuit panel will reverse Gershon’s ruling.

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This Day in Liberal Judicial Activism—December 9



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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.

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This Day in Liberal Judicial Activism—December 8



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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.”

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This Day in Liberal Judicial Activism—December 5



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

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

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

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

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

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

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

2008—Montana trial judge Dorothy McCarter rules (in Baxter v. Montana) that the provisions of the Montana constitution that state that the “dignity of the human being is inviolable” and that set forth a “right of individual privacy” confer a constitutional right to physician-assisted suicide. Never mind the longtime prohibition in Montana law, and Anglo-American law more generally, on assisted suicide.

One year later, the Montana supreme court will decline to ratify McCarter’s constitutional frolic, as a narrow majority instead misconstrues Montana statutory law to protect a physician from prosecution for aiding a person to commit suicide.

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