Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 19

(Chip East/Reuters)

2002—On remand from a U.S. Supreme Court decision holding that Erie’s ban on public nudity does not violate the First Amendment, the Pennsylvania supreme court rules (in Pap’s A.M. v. City of Erie) that the ban’s targeting of nude dancing violates the state constitution’s guarantee of freedom of expression (which provides that “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty”).

2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to restore the state’s definition of marriage as a male-female union.

Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the supreme court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California: one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

2013—The five justices of the New Mexico supreme court unanimously rule (in Griego v. Oliver) that the New Mexico constitution requires that “same-gender couples” be allowed to marry.

2017—By a 5-4 vote, the Oklahoma supreme court holds (in Hunsucker v. Fallin) that attorneys specializing in DUI cases have “public interest standing” to challenge the state’s recently enacted Impaired Driving Elimination Act; that the Act violates the state constitution’s single-subject rule; and that one provision of the Act that authorizes the seizure and immediate destruction of the driver’s license of a driver who fails a breath test (along with simultaneous issuance of a temporary license) violates substantive due process.

In dissent, Justice Patrick Wyrick objects that the majority’s “boundless” exception to the court’s ordinary standing rules fails to meet the state constitutional standard for justiciability. Further, its permissive standing rules combine with its amorphous and malleable single-subject decisions to create “a potent one-two punch that allows the Court to judicially veto virtually any of the Legislature’s and People’s laws so long as someone files the proper papers in the clerk’s office to initiate suit.”

The majority’s substantive due process holding is also wrong, Wyrick explains, “both as a matter of process and as a matter of substance”: among other things, the majority rules on a claim that no one even argued; it contradicts its own previous ruling; it reinstates a prior scheme that has the same supposedly defective feature; and, while purporting to exercise rational-basis review, it fails to conceive of, much less address, legitimate reasons for the challenged provision.

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