Bench Memos

This Day in Liberal Judicial Activism—May 31

1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty. 

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

Most Popular

World

Trump and the North Korean Tipping Point

The world has been stunned by North Korean dictator Kim Jong Un’s announcement last week that he was suspending his country’s nuclear tests in preparation for the impending meeting with President Trump. Even critics have had to concede that Trump’s bellicose rhetoric since last summer regarding the North ... Read More
Politics & Policy

E Pluribus . . . Gridlock

A mantra we hear everywhere these days is that diversity is a good thing. And no doubt, it is. Diversity facilitates an exchange of ideas and opinions, and it promotes economic growth. Moreover, the alternative to diversity is to suppress the views and opinions of some subset of citizens, which is completely ... Read More
Economy & Business

Trade Misunderstandings

I was distracted by other policy topics last week but not enough not to notice Peter Navarro’s article in the Wall Street Journal, headlined “China’s Faux Comparative Advantage.” Considering Navarro’s position in the White House, it is unfortunate that it demonstrates some serious misunderstandings ... Read More