Bench Memos

This Day in Liberal Judicial Activism—June 26

1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive. But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“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. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.

Most Popular

U.S.

Political Theatrics

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Including all you whippersnappers under the age of 50), I’m writing this from somewhere over the Atlantic. At least I hope that’s ... Read More
World

The Real Reasons American Evangelicals Support Israel

It never fails. Whenever a Republican president makes a controversial or contentious move to support Israel -- such as moving the American embassy to Jerusalem, or yesterday’s decision to recognize Israeli sovereignty over the Golan Heights -- you’ll see various “explainers” and other stories that purport ... Read More
White House

Mueller Report Delivered to Attorney General

Special Counsel Robert Mueller on Friday evening delivered a report to attorney general William Barr detailing his nearly two-year investigation into Russian interference in the 2016 election and possible collusion with the Trump campaign. Barr will now be tasked with deciding what information from the report ... Read More