Bench Memos

This Week in Liberal Judicial Activism—Week of April 16

Apr. 18      1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment.  Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Week for April 7, 1969).  And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.   

 

Apr. 19      1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.”  The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”  Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties.  “The river as plaintiff speaks for the ecological unit of life that is part of it.”  The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.”  “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing.  Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.

 

Apr. 20      2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech.  The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event.  The school ordered Harper not to wear the T-shirt.  Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.”  As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.”  But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.

 

                  Harper’s complaint was rendered moot after he graduated from high school.  In March 2007, the Supreme Court granted Harper’s petition for certiorari and vacated (i.e., wiped from existence) the Ninth Circuit’s ruling.

 

For an explanation of this recurring feature, see here.

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