Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—February 28 and 29

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February 28, 2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.

In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.”

February 29, 1892—“It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers.” A unanimous Supreme Court declares this spirit-of-the-law canon of nontextualism in Church of the Holy Trinity v. United States, as it holds that a federal law barring anyone from assisting or encouraging the importation of an alien by entering into a contract in advance with the alien “to perform labor or service of any kind in the United States” did not apply to a contract by which a church in New York contracted with E. Walpole Warren, an alien residing in England, to become its pastor.

The Court acknowledges that the law, in spelling out specific exceptions for professional actors, artists, lecturers, singers, and domestic servants, “strengthens the idea that every other kind of labor and service was intended to be reached.” But its examination of legislative history leads it to assert that “the intent of Congress was simply to stay the influx of … cheap unskilled labor.”

1972—A divided three-judge district court rules (in YWCA v. Kugler) that New Jersey’s abortion statute is unconstitutionally vague and violates the constitutional privacy rights of physicians and of their patients seeking abortion.

In dissent, Judge Leonard I. Garth explains that the statute, as authoritatively interpreted by the New Jersey supreme court, is indistinguishable from the statute that the U.S. Supreme Court held to be “constitutionally definite” (i.e., not unduly vague) in its recent decision in United States v. Vuitch (1971). He further concludes that the “interests of family privacy or convenience … cannot be elevated over the right to live” and that it is therefore permissible for a state, in pursuit of its “compelling interest in the preservation of life, including fetal life,” to bar abortion.

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