Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—August 6

1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the unanimous Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.

Most Popular

National Security & Defense

Leave McMaster Be

About every two months, there are rumors that Gen. H. R. McMaster might be let go as Trump’s national-security adviser (along with many other stellar appointees). The world, however, is a much more logical and predictable place than it was 14 months ago. We’ve restored ties to the Gulf monarchies; Israel ... Read More
Economy & Business

What Kudlow Got Right in 2007

Lawrence Kudlow’s appointment to be director of the National Economic Council has brought out the critics, who have combed through his copious writings to find every wrong call he has made over the decades. One passage that has come in for some ridicule, though, doesn’t deserve it. Here’s Kudlow, writing ... Read More
Film & TV

Love, Simon Outs Hollywood’s Youth Exploitation

Simon (Nick Robinson), the 17-year-old white gay high-school student in Love, Simon, appears to be a comic version of the protagonist in Moonlight. Rather than blatantly copy that Oscar-winning black-gay-victim film, Love, Simon remakes the pathetic Moonlight in the more marketable guise of a sitcom about a ... Read More

Don’t Bork Gina Haspel

President Donald Trump’s pick for CIA director is about to experience a good Borking. No one doubts her professionalism, and she’s been endorsed by Obama intelligence officials. Yet Gina Haspel’s long career at the agency, including extensive work undercover in the field, is getting blotted out by her ... Read More

On the Virtues of Agreeing to Disagree

In the Washington Post, Chuck Lane makes a thoughtful case for reframing the aims of public discourse: “National unity may be beyond our reach; national cohesion is not.” To achieve this cohesion, Lane suggests that we should lower the stakes of contemporary political debates by trying to find compromise ... Read More