Bench Memos

This Day in Liberal Judicial Activism—November 30

1979—President Carter nominates This Day Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit.

1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. Ginsburg’s decision not to proceed with his intended nomination, President Reagan nominates Ninth Circuit judge Anthony M. Kennedy to fill the seat vacated by retired Justice Lewis F. Powell Jr.

1989—By a vote of 4 to 3, the Florida supreme court concocts a categorical rule that police violate the Fourth Amendment when they conduct drug searches by boarding intercity buses and questioning passengers. In her melodramatic majority opinion (in Bostick v. State), Justice Rosemary Barkett posits that the “intrusion upon privacy rights caused by the [practice] is too great for democracy to sustain,” and she equates the police conduct with methods employed by Nazi Germany.

On review, the Supreme Court (in Florida v. Bostick) rejects Barkett’s rule by a 6 to 3 vote (with Marshall, Stevens, and Blackmun in dissent). Justice O’Connor’s majority opinion determines that the same totality-of-the-circumstances inquiry that governs whether “encounters that take place on a city street or an airport lobby” constitute a seizure “applies equally to encounters on a bus.”

On remand, Barkett again concludes that an unlawful seizure occurred. This time, though, she is in dissent.

Most Popular


Donald Trump’s Real Porn-Star Problem

It’s happening again. As first an Apprentice contestant, then a porn star, and now a Playboy playmate sue Donald Trump, the lawsplainers are springing up. This is how Trump will go down. Was the payment to Stormy Daniels an illegal campaign contribution? Will Trump lie under oath in a civil deposition? Will the ... Read More
PC Culture

Britain’s Joke War: The Pug and Count Dankula

In 1941, a German vice consul in Nazi-friendly Finland reported a suspicious act: a dog had reportedly mocked the Führer. A Finn named Tor Borg was called in for questioning: Was it true that his dog had, upon hearing the word “Hitler,” made a mockery of the chancellor by performing a Nazi salute? After a ... Read More
Politics & Policy

Top Trump Attorney Resigns

John Dowd, the lead attorney representing President Donald Trump in the special-counsel investigation, resigned Thursday, two sources briefed on the matter told the New York Times. [jwplayer PCWBu1GF-wKJ9CRQU] Dowd, who began leading Trump's legal team last summer, has repeatedly floated the idea of ... Read More

Thursday Links

It's William Shatner's birthday: Here he is in 1978 'singing' Rocket Man, plus a Star Trek/Monty Python mashup. Sold: Isaac Newton’s Notes on the Philosopher’s Stone. It was a long time before anyone admitted that he was interested in alchemy. High-tech forgery: Computer-generated 'Rembrandt' ... Read More
Economy & Business

Two Conservative Causes, in Conflict

Conservatives have argued for decades that the capital-gains tax should be indexed to inflation. When George H. W. Bush was president, some conservatives argued that he could interpret the tax laws in a way that let him adopt this policy without a vote of Congress. Now that Larry Kudlow is director of the ... Read More