Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 1

Justice Scalia on Capitol Hill (Kevin Lamarque/Reuters)

2016—As Sherlock Holmes once observed, “it is better to learn wisdom late than never to learn it at all.” But the late learner might have the decency to acknowledge her earlier folly.

In a New York Times piece on Bill Clinton and Kenneth Starr, Linda Greenhouse offers effusive—and appropriate—praise for Justice Scalia’s solo dissent in Morrison v. Olson, the 1988 case in which the Court rejected a separation-of-powers challenge to the independent-counsel statute:

“It was a dissenting opinion of which he was deservedly proud, even perhaps his best work. His words were prescient, his analysis airtight.” [Emphasis added.]

Although her readers wouldn’t know it, Greenhouse had a very different reaction to Scalia’s dissent back in 1988, when she complained of its supposedly “fevered tone” and quoted only a four-word “sarcastic reference” in it. Indeed, she regretted back then that the independent-counsel statute did not intrude more on presidential power. Only the use of the independent-counsel statute against President Clinton and others in his administration awakened Greenhouse to the separation-of-powers problems that were manifest to Scalia. (More here.)

2017—In its statement of opposition to President Trump’s nomination of Michigan supreme court justice Joan Larsen to a seat on the Sixth Circuit, People For the American Way complains that her campaign website for her recent judicial election stated that “judges should interpret the laws according to what they say, not according to what the judges wish they would say” and that judges “are supposed to interpret the laws; they are not supposed to make them.”

PFAW asserts that these elementary principles are “coded language used by ultra-conservative jurists and activists to signal a willingness to issue rulings that (among other things) do not recognize the constitutional right to abortion or the fundamental humanity and equality of LGBTQ people.”

Never mind that Justice Sotomayor used that same “coded language” when she testified at her confirmation hearing that “The task of a judge is not to make the law—it is to apply the law.” Ditto for statements by countless other Democratic judicial appointees over the years.


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