Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 23

A member of the New York Police Department stands outside a Planned Parenthood clinic in N.Y., November 28, 2015. (Andrew Kelly/Reuters)

1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

2016—In Planned Parenthood of Greater Ohio v. Hodges, federal district judge Michael R. Barrett (a Bush 43 appointee) grants Planned Parenthood affiliates in Ohio a temporary restraining order against an Ohio law that directs the state department of health to “ensure” that funds it receives through six programs not be used to perform or promote nontherapeutic abortions or to contract with any entity that performs or promotes such abortions. Overlooking that the state law provides two separate and independent bases for the state department of health not to fund the Planned Parenthood affiliates, Barrett fails to respect longstanding Supreme Court precedents holding that there is no constitutional right to government funding of the performance of abortions.

In 2019, the en banc Sixth Circuit will rule that the Ohio law is constitutionally permissible.

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