Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 17

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparateimpact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition.

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple:

“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.”

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