Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 31

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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.”

1979—Give Harry Pregerson credit for candor. At the Senate Judiciary Committee hearing on his nomination to a Ninth Circuit seat, Pregerson testifies that if what the law required ran against his conscience, “I would try and find a way to follow my conscience and do what I perceived to be right and just.” (No, he isn’t talking about recusing.)

Over the ensuing four decades up to, and even beyond, his death in November 2017, Pregerson, though less flamboyantly outspoken than his colleague (and fellow Carter appointee) Stephen Reinhardt, will prove himself nearly Reinhardt’s match in his feats of lawless judicial activism.

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