Bench Memos

This Day in Liberal Judicial Activism—May 28

1963— Retired justice Felix Frankfurter, having witnessed the appointment of his replacement, Arthur Goldberg, create a majority bloc of liberal activists on the Supreme Court, writes to Justice Harlan to lament “the atmosphere of disregard for law and to a large extent of the legal profession that now dominates the present Court and the Court on which I sat.” (Source: Seth Stern & Stephen Wermiel, Justice Brennan.) Decades later, the situation will be transformed—but, alas, for the worse—as “a large extent of the legal profession,” having been indoctrinated by the disciples of the Warren Court, will display a similar “disregard for law.”

2013—In two 5-4 rulings (with Justice Kennedy joining the four liberals), the Supreme Court creates more confusion over federal habeas procedures.

In McQuiggin v. Perkins, the Court, in an opinion by Justice Ginsburg, creates an “actual innocence” exception to the statute of limitations on federal habeas petitions set forth in the Antiterrorism and Effective Death Penalty Act of 1996. Never mind, as Justice Scalia points out in dissent, that AEDPA provides its own actual-innocence exception (one that the petitioner failed to satisfy). Scalia’s lead item in what he calls the Court’s “statutory-construction blooper reel” is the Court’s “flagrant breach of the separation of power” in concocting an exception to AEDPA’s “clear statutory command.”

In Trevino v. Thaler, the Court, in an opinion by Justice Breyer, significantly broadens a purportedly “narrow exception” that it had created just the previous year. As Chief Justice Roberts (joined by Justice Alito) complains in his dissent, the Court in that earlier ruling (which they both joined) had been “unusually explicit about the narrowness of [its] decision” and had included “aggressively limiting language.” But today it “throws over the crisp limit [it] made so explicit just last Term” and instead adopts an “opaque and malleable” standard that will lead to “years of procedural wrangling [that] undermine the finality of sentences necessary to effective criminal justice.”

Justice Scalia’s brief dissent (joined by Justice Thomas) points out that he observed in his dissent in the earlier case that the Court’s “line lacks any principled basis, and will not last.” Scalia’s prophecies have often proved true, but it usually takes more than a year.

The broader lesson, which ought to be old news, is: Don’t be fooled by the liberal justices’ unprincipled and ad hoc limitations on their rulings, as those limitations will disappear at the first convenient opportunity.  

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