Bench Memos

This Day in Liberal Judicial Activism—May 13

1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.  

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