Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—March 17

On March 17 each year the whole world turns a little bit greener.

1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.”

2009—President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”!

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