Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 20

(Wikimedia Commons)

1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional.

Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

“It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.”

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”

Most Popular

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More
Media

The Biden Protection Racket

Joe Biden is the most cosseted presidential candidate in memory. He’s run a minimalist campaign that’s avoided the press as much as possible, while the press hasn’t been braying for more access and answers, but eager to avoid anything that could be discomfiting to the campaign. Never before have the ... Read More
Media

The Biden Protection Racket

Joe Biden is the most cosseted presidential candidate in memory. He’s run a minimalist campaign that’s avoided the press as much as possible, while the press hasn’t been braying for more access and answers, but eager to avoid anything that could be discomfiting to the campaign. Never before have the ... Read More

A Few Cracks in the Progressive Wall

The contemporary progressive agenda — of, say, an Alexandria Ocasio-Cortez, Kamala Harris, Bernie Sanders, or Elizabeth Warren — has rarely appealed to 51 percent of the American electorate. Most polls show opposition to Court packing and the abolition of the Electoral College. Voters don’t seem to like ... Read More

A Few Cracks in the Progressive Wall

The contemporary progressive agenda — of, say, an Alexandria Ocasio-Cortez, Kamala Harris, Bernie Sanders, or Elizabeth Warren — has rarely appealed to 51 percent of the American electorate. Most polls show opposition to Court packing and the abolition of the Electoral College. Voters don’t seem to like ... Read More

Trump: Yes

Editor’s Note: The following is one of three essays, each from a different perspective, in the latest edition of National Review on the question of whether to vote for President Trump. The views below reflect those of the individual author, not of the NR editorial board as a whole. The other two essays can be ... Read More

Trump: Yes

Editor’s Note: The following is one of three essays, each from a different perspective, in the latest edition of National Review on the question of whether to vote for President Trump. The views below reflect those of the individual author, not of the NR editorial board as a whole. The other two essays can be ... Read More
Media

Jeffrey Toobin and Our Public-Hate Ritual

Oh, Jeffrey Toobin — let him among us with a free hand cast the first stone. Toobin, a writer for The New Yorker and fixture on CNN, was participating in a role-playing exercise on a Zoom call with his magazine colleagues, wargaming election-night scenarios. Toobin was standing in for the courts when he ... Read More
Media

Jeffrey Toobin and Our Public-Hate Ritual

Oh, Jeffrey Toobin — let him among us with a free hand cast the first stone. Toobin, a writer for The New Yorker and fixture on CNN, was participating in a role-playing exercise on a Zoom call with his magazine colleagues, wargaming election-night scenarios. Toobin was standing in for the courts when he ... Read More

Trump: No

Editor’s Note: The following is one of three essays, each from a different perspective, in the latest edition of National Review on the question of whether to vote for President Trump. The views below reflect those of the individual author, not of the NR editorial board as a whole. The other two essays can be ... Read More

Trump: No

Editor’s Note: The following is one of three essays, each from a different perspective, in the latest edition of National Review on the question of whether to vote for President Trump. The views below reflect those of the individual author, not of the NR editorial board as a whole. The other two essays can be ... Read More
Elections

How Trump Might Be Winning

I’m far too dumb to be able to shed any light on polls, but I do know something about celebrity and I think I can guarantee this: If President Trump wins re-election, Robert Cahaly is going to become very famous very quickly. Who is Robert Cahaly? The chief pollster for the Trafalgar Group, the only major ... Read More
Elections

How Trump Might Be Winning

I’m far too dumb to be able to shed any light on polls, but I do know something about celebrity and I think I can guarantee this: If President Trump wins re-election, Robert Cahaly is going to become very famous very quickly. Who is Robert Cahaly? The chief pollster for the Trafalgar Group, the only major ... Read More