Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—November 28

The First Thanksgiving at Plymouth, by Jennie A. Brownscombe (1914) (Wikimedia Commons)

2019—Happy Thanksgiving! Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast. In the words of Washington:

Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness”:

Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.

1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas. Not long before his death at the end of 2006, Ford rashly states that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause. But Ford’s actions belie his words, for (as this essay of mine explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law.

2016—In what Fourth Amendment expert Orin Kerr will critique as yet another “very unpersuasive” opinion, magistrate judge James Orenstein rejects the government’s application for a search warrant on the spurious ground that the target of the search had consented to the search. Orenstein, Kerr observes, is “a leader in the Magistrate’s Revolt, a small group of federal magistrate judges who have often come up with unexpected theories to reject court-order applications in computer search and surveillance cases.”

Most Popular

Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
Law & the Courts

The FBI’s Corrupt Cops

White-collar criminals should hope for one thing this Christmas: that they get to live under the Horowitz rules. Michael Horowitz has testified that he found no evidence of political bias on the part of the decision makers who, under the Obama administration, relied on hilariously implausible “evidence” ... Read More
Law & the Courts

The FBI’s Corrupt Cops

White-collar criminals should hope for one thing this Christmas: that they get to live under the Horowitz rules. Michael Horowitz has testified that he found no evidence of political bias on the part of the decision makers who, under the Obama administration, relied on hilariously implausible “evidence” ... Read More
White House

Is Trump the Only Adult in the Room?

Donald Trump certainly is mercurial at times. He can be uncouth. But then again, no president in modern memory has been on the receiving end of such overwhelmingly negative media coverage and a three-year effort to abort his presidency, beginning the day after his election. Do we remember the effort to ... Read More
White House

Is Trump the Only Adult in the Room?

Donald Trump certainly is mercurial at times. He can be uncouth. But then again, no president in modern memory has been on the receiving end of such overwhelmingly negative media coverage and a three-year effort to abort his presidency, beginning the day after his election. Do we remember the effort to ... Read More