Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 13

1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972.

In the meantime, the Court issues its ruling in Eisenstadt v. Bairdwhich extends a right to contraception to unmarried persons. (See This Day for March 22, 1972.) Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple of extraneous words: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

2013—“To put it simply, polygamy is now lawful in Utah.” That’s how the winning attorney for Cody Brown and his “Sister Wives” of reality-show fame celebrates federal district judge (and Bush 43 appointee) Clark Waddoups’s remarkably strange and rambling opinion in Brown v. Buhman.

Beyond relying extensively on leftist academic Edward Said’s theory of “orientalism,” Waddoups rejects the Utah Supreme Court’s authoritative reading of one part of Utah’s anti-bigamy statute, and he unpersuasively concludes that the cohabitation prong of the statute has been enforced in a discriminatory manner against those engaged in “religious cohabitation.”

In May 2016, the Tenth Circuit will rule that Waddoups should have dismissed the case as moot after prosecutors adopted a policy under which Brown and his wives would not face prosecution. The Tenth Circuit orders Waddoups to vacate his judgment.

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