Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 31

(Chip East/Reuters)

1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

2013—Through misuse of procedural rules, federal district judge Shira Scheindlin managed over the years to (in the words of a New York Times article) “exercise near exclusive jurisdiction in deciding whether the [New York City] Police Department’s [stop-and-frisk] policies adhere to Fourth Amendment restrictions.”

But Scheindlin’s shenanigans (on this matter, at least) finally come to an end, as a Second Circuit panel determines (in Ligon v. City of New York) that her actions and her “public statements purporting to respond publicly to criticism” warrant removing her from any further role in such cases. Among her objectionable actions: “suggesting that the plaintiffs bring a lawsuit, outlining the basis for the suit, intimating her view of its merit, stating how she would rule on the plaintiffs’ document request in that suit, and telling the plaintiffs that she would take it as a related case.”