Bench Memos

This Day in Liberal Judicial Activism—July 14

1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity.  Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.”  Ten years later, President Clinton appoints Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).  Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums.  The rational connection between caps on noneconomic damages and lower premiums ought to be obvious.  Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”