Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 29


1971—Two years before Roe v. Wade, a divided three-judge district panel rules in Doe v. Scott that the longstanding Illinois abortion statute is invalid in two respects. The majority holds, first, that the statute is unconstitutionally vague because its exception for abortions “necessary for the preservation of the woman’s life” is supposedly not sufficiently intelligible. Second, it determines that the Supreme Court’s ruling in Griswold v. Connecticut on a marital right to contraception compels the conclusion that the statute unconstitutionally invades a woman’s privacy interests. The court enjoins state officials from enforcing the statute against licensed physicians performing abortions during the first trimester in a licensed medical facility.

In an excellent dissent, senior district judge William Joseph Campbell faults the judges in the majority for “impos[ing] upon the people of Illinois their own views on this most important and controversial issue concerning public health and morals.” Judge Campbell points out that “we are presented with no actual circumstance where the vagueness question is in issue,” and he cites “numerous examples of statutes which have been held constitutional and which are not as clear and definite as this one.” He also finds “incredible” the majority’s assertion that “there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life.”

2004—Having somehow given her permission to the NOW Legal Defense and Education Fund to dedicate a lecture series in her honor, Justice Ruth Bader Ginsburg presents opening remarks at the fourth annual Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Never mind that the highly ideological NOW Legal Defense and Education Fund regularly files briefs in the Supreme Court (and indeed had filed a brief in a case that was pending when Ginsburg agreed to give her remarks).

Somehow many of the same folks who squawk when a conservative justice merely speaks to a conservative group that doesn’t litigate in the Supreme Court are silent at the extraordinary spectacle of a justice’s permitting a repeat litigant to name a lecture series in her honor.

2018—In Ragbir v. Sessions, federal district judge Katherine B. Forrest orders that the federal government release from its custody an alien, Ravidath Ragbir, who had forfeited his status as a lawful permanent resident and had been ordered deported from this country in 2006 because of his conviction in 2001 on charges of wire fraud and conspiracy to commit wire fraud. Forrest explicitly “agrees [with the government] that the statutory scheme governing [Ragbir’s] status is properly read to allow for his removal without further right of contest”—that it “allows [the government] to do what was done here,” i.e., to have Ragbir “suddenly taken into custody” earlier this month. But without citing any precedent, Forrest, trying to wax poetic, declares:

“There is, and ought to be in this great country, the freedom to say goodbye …, the freedom to hug one’s spouse and children, the freedom to organize the myriad of human affairs that collect over time.”

One might well lament that bureaucratic practices often aren’t as sensitive to real-life considerations as they might be. But Forrest’s notion that the Constitution forbids whatever she regards as unfair is simply lawless. And it seems perverse that, rather than giving the federal government any credit for the four stays of removal that it granted Ragbir since 2011, she invokes those stays only as evidence of the supposed cruelty of the government’s recent detention of him.

Worse, Forrest’s opinion is disingenuous nearly to the point of unintelligibility. Forrest asserts that Ragbir has “lived without incident in this country for years.” Only the very attentive reader will learn, in her eleventh and final footnote in the last paragraph of the body of her opinion, of the reason for Ragbir’s deportation order, his conviction in 2001. Until then, that reader might well have been puzzled over how a lawful permanent resident who had “lived without incident in this country for years” would find himself detained. As a matter of elementary judicial craftsmanship, his conviction should have been part of the basic narrative of the opinion.


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