Bench Memos

This Day in Liberal Judicial Activism—December 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.

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 of 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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