Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—August 26

(Unsplash)

2009—In what Fourth Amendment expert Orin Kerr describes as the “most free-wheeling, ‘look ma no hands’ legal decision I’ve read in a long time,” a limited en banc panel of the Ninth Circuit, in a majority opinion by Chief Judge Alex Kozinski (in United States v. Comprehensive Drug Testing, Inc.), announces a set of new rules governing searches and seizures of electronic records. Among the rules:  “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

In his partial dissent, Judge Carlos Bea complains that the majority’s “bright-line diktats” effect a “dramatic doctrinal shift” in a “rapidly developing area” and that the majority should instead have limited its decision “as precisely as possible to the case at hand.” Kerr observes that the court’s “laundry list of brand-new rules, introduced with no citations to any authority,” reminds him of the Warren Court’s inventions in Miranda v. Arizona.

One year later, in response to the Department of Justice’s petition for full en banc rehearing, the en banc panel will quietly amend its opinion to eliminate the set of new rules.

Most Popular

Culture

New England Journal of Medicine Pushes Reparations

Reparations would grant African Americans government benefits not paid to other Americans to rectify the awful sin of slavery and the "peculiar institution's" residual harm. It is a favored policy of hard progressives, so of course, the New England Journal of Medicine -- which regularly promotes left-wing causes ... Read More
Culture

New England Journal of Medicine Pushes Reparations

Reparations would grant African Americans government benefits not paid to other Americans to rectify the awful sin of slavery and the "peculiar institution's" residual harm. It is a favored policy of hard progressives, so of course, the New England Journal of Medicine -- which regularly promotes left-wing causes ... Read More
Books

Three Cheers for the Quiet Ones

People often dismiss shy, quiet characters in literature. Readers prefer to identify with Jo March, Elizabeth Bennett, or Anne Shirley -- those delightful, bold, and charming characters who made a deep impression on us when we first encountered them. While there’s nothing wrong with emulating or admiring these ... Read More
Books

Three Cheers for the Quiet Ones

People often dismiss shy, quiet characters in literature. Readers prefer to identify with Jo March, Elizabeth Bennett, or Anne Shirley -- those delightful, bold, and charming characters who made a deep impression on us when we first encountered them. While there’s nothing wrong with emulating or admiring these ... Read More
Media

Wajahat Ali, Ctd.

I gather he didn’t like my comment on his New York Times op-ed on the folly of reaching out to Trump supporters. He snipes, “I await The National Review’s piece on reaching out to Biden voters and reading about their ‘elegy’ and understanding their ‘economic anxiety.’” After the 2016 election, ... Read More
Media

Wajahat Ali, Ctd.

I gather he didn’t like my comment on his New York Times op-ed on the folly of reaching out to Trump supporters. He snipes, “I await The National Review’s piece on reaching out to Biden voters and reading about their ‘elegy’ and understanding their ‘economic anxiety.’” After the 2016 election, ... Read More