Bench Memos

Law & the Courts

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

Religion

Understanding the Mind of Modern Atheists

‘Heaven and earth will pass away, but my words will not pass away” (Matthew 24:35). Anthony DeStefano uses this Bible quote toward the end of his new book Inside the Atheist Mind: Unmasking the Religion of Those Who Say There Is No God, pointing to the resiliency and truth of Christianity. “You can hide it, ... Read More
Economy & Business

How the Constitution Limits State Taxes

Must a company have a physical presence in a state for that state to require it to collect taxes? The Supreme Court is considering that question, which has grown more important as online sales have taken off. The Competitive Enterprise Institute has submitted an excellent brief arguing that the answer is yes, at ... Read More
Politics & Policy

Pompeo Deserves Confirmation

Mike Pompeo is qualified to be secretary of state. There is no doubt about that. He is competent — as director of the CIA, he has managed a complex organization deftly, winning the respect of intelligence professionals otherwise not favorably inclined to President Trump. He is experienced — in an ... Read More