Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 15

Ultrasound of fetus at 20 weeks. (Letuve/Dreamstime)

1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2000—Declaring that a right to abortion “is inherent in the concept of ordered liberty,” the Tennessee supreme court (in Planned Parenthood v. Sundquist) rules that informed-consent provisions and various other state-law regulations of abortion violate the state constitution.

2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

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