Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 14

The Supreme Court of the United States in Washington, D.C., August 29, 2020. (Andrew Kelly/Reuters)

1969—Mired in scandal, Supreme Court justice Abe Fortas announces his resignation from the Court. Fortas’s resignation comes less than a year after President Lyndon B. Johnson’s unsuccessful effort to have Fortas succeed Earl Warren as chief justice.

1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.

2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.

But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.

2020—Dividing along ideological lines, the en banc Fourth Circuit rules (in District of Columbia v. Trump) that President Trump was not entitled to have Emoluments Clause litigation against him dismissed. From Judge J. Harvie Wilkinson’s dissent:

It is clear and indisputable that this action should never be in federal court. The legal foundations for this lawsuit are non-existent. It is a fanciful construct that invites the courts to create rights and duties from thin air. It allows an action to proceed that seeks to enjoin the President directly for official actions while in office. It opens the door to litigation as a tool of harassment of a coordinate branch with notions of competitor standing so wide and injury-in-fact so loose that litigants can virtually haul the Presidency into court at their pleasure.…

Consider the insouciant spirit that guides this litigation. It’s all make-it-up-as-we- go-along. We are proceeding under constitutional emoluments provisions that confer no right, provide no remedy, and lack all guidance in precedent and history. In so proceeding, the majority ascribes to the courts a lawmaking function that has been committed to the legislative branch.

2020—Failing to abide by federal statutory restrictions, a divided Sixth Circuit panel (in Hines v. Mays) grants habeas relief to a Tennessee prisoner who claimed that his trial counsel provided ineffective assistance by failing to try to blame someone else for the murder he was convicted of. In summarily reversing the Sixth Circuit’s ruling in March 2021, the Supreme Court will document the “overwhelming evidence” of Anthony Hines’s guilt—evidence, it marvels, that the Sixth Circuit majority failed even to consider—and it will point out that the state court “reasonably rejected the ‘farfetched’ possibility that [the supposed alternative suspect] committed and self-reported a gruesome murder, in the presence of a witness, at a place where he was well known to the staff.”


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