Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 22

1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings. In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion. Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.

1996—Federal district judge Harold Baer rules (in United States v. Bayless) that New York City police officers did not have reasonable suspicion that criminal activity was afoot when they observed a car with a Michigan license plate moving slowly in the pre-dawn hours in a neighborhood known for drug trafficking, saw the car double-park, observed four males cross the street in single file and, without speaking with the driver, deposit duffle bags in the trunk of the car, and saw the men scatter when they noticed that the officers were observing them.

Dismissing this last fact, Baer opines that publicity about the prosecution of a corrupt police officer in that neighborhood eliminated any inference that the men were engaged in evasive conduct. Indeed, “had the men not run when the cops began to stare at them, it would have been unusual.” Finding that the investigatory stop by the police violated the Fourth Amendment, Baer orders suppression of the evidence of the 34 kilograms of cocaine and two kilograms of heroin found in the duffle bags in the trunk.

Amidst the ensuing public outcry over Baer’s ruling—including comments by President Clinton that he might try to get his own appointee to resign—Baer reverses himself two months later and laments the “hyperbole (dicta) in my initial decision [that] regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.”

Most Popular

White House

For Democrats, the Party’s Over

If the Democrats are really tempted by impeachment, bring it on. Since the day after the 2016 election they have been threatening this, placing their chips on the Russian-collusion fantasy and then on the phantasmagoric charade of obstruction of justice. The attorney general accurately gave the ingredients of the ... Read More
Politics & Policy

The Worst Cover-Up of All Time

President Donald Trump may be guilty of many things, but a cover-up in the Mueller probe isn’t one of them. House Speaker Nancy Pelosi, attempting to appease forces in the Democratic party eager for impeachment, is accusing him of one, with all the familiar Watergate connotations. The charge is strange, ... Read More
PC Culture

TV Before PC

Affixing one’s glance to the rear-view mirror is usually as ill-advised as staring at one’s own reflection. Still, what a delight it was on Wednesday to see a fresh rendition of “Those Were the Days,” from All in the Family, a show I haven’t watched for nearly 40 years. This time it was Woody Harrelson ... Read More
Politics & Policy

The Democrats’ Other Class War

There is a class war going on inside the Democratic party. Consider these two cris de couer: Writing in the New York Times under the headline “America’s Cities Are Unlivable — Blame Wealthy Liberals,” Farhad Manjoo argues that rich progressives have, through their political domination of cities such as ... Read More
Culture

The Deepfake of Nancy Pelosi

You’ve almost made it to a three-day weekend! Making the click-through worthwhile: A quick note about how National Review needs your help, concerns about “deepfakes” of Nancy Pelosi, one of the most cringe-inducing radio interviews of all time, some news about where to find me and the book in the near ... Read More