Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—June 17

(Zolnierek/Getty Images)

1963—In the course of ruling in School District of Abington Township v. Schempp that the Establishment Clause forbids a Pennsylvania law that requires that Bible verses be read at the opening of each day of public school, the Supreme Court imposes what religion-law scholar Steven D. Smith calls the “odd couple of principles—religious neutrality and governmental secularity”— that have “bedeviled religion-clause cases ever since.” (As Smith explains, “as soon as we acknowledge that some or even most religions have a public dimension, with implications for public policy, a determinedly secular government is no longer religiously neutral.”)

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.

Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)  

2018—In their challenge (in Whole Woman’s Health v. Smith) to a provision of Texas law that would require them to bury or cremate fetal remains, abortion providers enlist the assistance of federal district judge David Ezra in harassing the Texas Catholic Conference of Catholic Bishops, which is not even a party to the litigation. On Father’s Day, Ezra issues an order giving the Texas Catholic Conference a mere 24 hours to turn over to the abortion providers some 300 internal Conference communications among the bishops and their staff. That’s on top of thousands of pages of documents the Conference had already provided.

A Fifth Circuit panel, in blocking Ezra’s order, will find his assessment of the competing interests “hard to fathom.”


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