Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 20

(Shutterstock)

1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples.

2013—On the bench for barely a year, federal district judge Robert James Shelby refuses even to stay pending appeal his ruling that Utah’s marriage laws violate the federal Constitution. Shelby’s effort to sow chaos and thus alter the terrain while the appeal of his ruling is underway succeeds until the Supreme Court, more than two weeks later, finally blocks his ruling pending the completion of the appeals process.

2017—Ninth Circuit judge Kim McLane Wardlaw endures yet another summary reversal by the Supreme Court. Barely a month earlier (in In re United States), Wardlaw had co-authored a ruling that would have required the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (DACA) policy. Without a recorded dissent, the Supreme Court vacates that order and instead directs a series of steps for the lower courts to follow to limit the scope of the government’s disclosure.

Most Popular

Education

Husband of Sen. Dianne Feinstein Admits to Helping Well-Connected Applicants Gain Admission to University of California: ‘No One Ever Told Me It Was Wrong’

The husband of Senator Dianne Feinstein (D., Calif.) admitted on Thursday to sending an inappropriate letter identified in a state audit that appeared to help an applicant to the University of California, Berkeley, get accepted to the school. The California State Auditor issued a scathing report on Tuesday ... Read More
Education

Husband of Sen. Dianne Feinstein Admits to Helping Well-Connected Applicants Gain Admission to University of California: ‘No One Ever Told Me It Was Wrong’

The husband of Senator Dianne Feinstein (D., Calif.) admitted on Thursday to sending an inappropriate letter identified in a state audit that appeared to help an applicant to the University of California, Berkeley, get accepted to the school. The California State Auditor issued a scathing report on Tuesday ... Read More

The Arson Party

About that peaceful transfer of power . . . I do not have access to my friend Mario Loyola’s Donald J. Trump super-secret decoder ring, but I am inclined to accept Loyola’s explanation that what President Trump was trying to say, but couldn’t quite manage to say, was the usual witless Trump trolling -- ... Read More

The Arson Party

About that peaceful transfer of power . . . I do not have access to my friend Mario Loyola’s Donald J. Trump super-secret decoder ring, but I am inclined to accept Loyola’s explanation that what President Trump was trying to say, but couldn’t quite manage to say, was the usual witless Trump trolling -- ... Read More
Law & the Courts

No, the Democrats Won’t Pack the Court

For many progressive opinion-makers, the only way to save the Supreme Court is to destroy it.   They believe the best response to the Republican-held Senate confirming a Trump nominee to fill Ruth Bader Ginsburg's seat on the Supreme Court is to pack the Court if Democrats win in November. Holding out the ... Read More
Law & the Courts

No, the Democrats Won’t Pack the Court

For many progressive opinion-makers, the only way to save the Supreme Court is to destroy it.   They believe the best response to the Republican-held Senate confirming a Trump nominee to fill Ruth Bader Ginsburg's seat on the Supreme Court is to pack the Court if Democrats win in November. Holding out the ... Read More
Politics & Policy

Do You Want 51 or 52 States Next Year?

“The prospects of statehood for Puerto Rico and Washington, D.C., have never been greater, but many significant obstacles loom,” The Hill declares. The Constitution declares, “new States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction ... Read More
Politics & Policy

Do You Want 51 or 52 States Next Year?

“The prospects of statehood for Puerto Rico and Washington, D.C., have never been greater, but many significant obstacles loom,” The Hill declares. The Constitution declares, “new States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction ... Read More