Bench Memos

This Day in Liberal Judicial Activism—June 3

1992—In Davis v. Davis, the Tennessee Supreme Court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail.…” Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe. (In 1993, President Clinton appoints Daughtrey to the Sixth Circuit.)

1991—By a vote of 6 to 3, the Supreme Court rules (in Edmonson v. Leesville Concrete Co.) that a private litigant in a civil case violates the equal-protection rights of a potential juror when the litigant excludes the juror on account of race. The Court further rules that the opposing party has standing to assert the excluded juror’s equal-protection claim.

In dissent (joined by Chief Justice Rehnquist and Justice Scalia), Justice O’Connor explains that “a peremptory strike by a private litigant is fundamentally a matter of private choice and not state action.” 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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