Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—July 18

Supreme Court Justice Elena Kagan attends a ceremonial swearing in Washington March 6, 2015. (Yuri Gripas/Reuters )

2014—In State v. Gleason, the Kansas supreme court expressly acknowledges that the U.S. Supreme Court “has explained that its Eighth Amendment jurisprudence on capital sentencing should not be interpreted as creating any constitutional requirements as to how or whether a capital jury should be instructed on the burden of proof for mitigating circumstances.” But the court nonetheless proceeds to rule that sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.”

A year and a half later (in Kansas v. Carr), the Supreme Court will reverse the Kansas supreme court by a vote of 8 to 1.

2019—For liberal justices, stare decisis (respect for precedent) is sacrosanct and absolute for liberal precedents but has little or no force for precedents they oppose. At a law-school event, Justice Kagan emphatically declares that she will “never accept” the Supreme Court’s decision weeks earlier in Rucho v. Common Cause, in which the Court ruled by a 5-4 vote that claims of excessive partisan gerrymandering present nonjusticiable “political questions.”

Kagan is surely correct on the higher principle that some rulings are so “tragically wrong” that no justice should ever be obligated to acquiesce in them. But that principle applies all the more plainly to Roe v. Wade, which Kagan and her liberal colleagues seek to protect by their selective and opportunistic paeans to stare decisis.

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