Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 18

(Wikimedia Commons)

1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws.

Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.

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
Elections

The 24 Democrats

Every presidential primary ends with one winner and a lot of losers. Some might argue that one or two once-little-known candidates who overperform low expectations get to enjoy a form of moral victory. (Ben Carson and Rick Perry might be happy how the 2016 cycle ended, with both taking roles in Trump’s cabinet. ... Read More