Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 14

(Max van den Oetelaar/Unsplash)

1972By a vote of 4-1 (in Beecham v. Leahy), the Vermont supreme court declares invalid a state law that bars a person from performing an abortion except where necessary to save the life of the mother. The opinion dishonestly asserts that the legislature, by not applying the prohibition directly to the mother, had somehow given an “implicit recognition” to a woman’s right to an abortion. It then holds that “the legislature, having [purportedly] affirmed the right of a woman to abort, cannot simultaneously, by denying aid in all but cases where it is necessary to preserve her life, prohibit its exercise.”

1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds.

2019—In a very curious opinion in Pennsylvania v. Trump, federal district judge Wendy Beetlestone bars the Trump administration from enforcing its final rules that would exempt employers with religious or moral objections from complying with objected-to portions of the Obama administration’s contraceptive mandate.

In direct conflict with the Obama administation’s own actions, Beetlestone rules that the executive branch has no authority under Obamacare to exempt any employers from the Obama administration’s contraceptive mandate on religious or moral grounds. On the separate question whether the federal Religious Freedom Restoration Act authorizes or requires the religious exemption, Beetlestone adopts the astounding position that federal bureaucrats are not supposed to give any thought to what RFRA demands. She further rules that procedural defects that she previously found in the “interim” rules fatally taint the final rules. Never mind that the Obama administration used the same process, with the same supposed defects, to create the underlying contraceptive mandate in the first place, and the effect of her ruling is to re-impose that mandate on objectors.

In its 2020 decision in this case (styled Little Sisters of the Poor v. Pennsylvania), seven justices of the Supreme Court, including Justices Breyer and Kagan, will reject each of Beetlestone’s rulings.