This Day in Liberal Judicial Activism—October 21

by Ed Whelan

1949 — President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”

Never Again

by Ed Whelan

I’ll be making my second visit to Israel next week and will once again visit Yad Vashem, Israel’s unforgettable memorial to the victims of the Holocaust.

I gather that I might be testing the patience of some readers with my repeated references to Scalia Speaks, but forgive me that I can’t help but recall that one of the most powerful speeches in the collection is Justice Scalia’s reflection at the Days of Remembrance commemoration for victims of the Holocaust, held in the Rotunda of the U.S. Capitol in 1997. Here are some extensive excerpts:

I was profoundly honored to have been invited to speak at this annual ceremony in remembrance of those consumed in the Holocaust. But it is not, I must tell you, an easy assignment for a non-Jew to undertake. I am an outsider speaking to an ancient people about a tragedy of unimaginable proportions that is intensely personal to them….

More difficult still, I am not only not a Jew, but I am a Christian, and I know that the antisemitism of many of my uncomprehending co-religionists, over many centuries, helped set the stage for the mad tragedy that the National Socialists produced. I say uncomprehending co-religionists, not only because my religion teaches that it is wrong to hate anyone, but because it is particularly absurd for a Christian to hate the people of Israel. That is to hate one’s spiritual parents, and to sever one’s roots.…

The one message I want to convey today is that you will have missed the most frightening aspect of it all, if you do not appreciate that it happened in one of the most educated, most progressive, most cultured countries in the world.

The Germany of the late 1920s and early 1930s was a world leader in most fields of art, science and intellect. Berlin was a center of theater; with the assistance of the famous producer Max Reinhardt, playwrights and composers of the caliber of Bertolt Brecht and Kurt Weill flourished. Berlin had three opera houses, and Germany as a whole no less than eighty. Every middle-sized city had its own orchestra. German poets and writers included Hermann Hesse, Stefan George, Leonhard Frank, Franz Kafka and Thomas Mann, who won the Nobel Prize for Literature in 1929. In architecture, Germany was the cutting edge, with Gropius and the Bauhaus school. It boasted painters like Paul Klee and Oskar Schlemmer. Musical composers like Anton Webern, Alban Berg, Arnold Schoenberg, and Paul Hindemith. Conductors like Otto Klemperer, Bruno Walter, Erich Kleiber and Wilhelm Furtwängler. And in science, of course, the Germans were preeminent….

It is the purpose of these annual Holocaust remembrances—as it is the purpose of the nearby Holocaust museum—not only to honor the memory of the six million Jews and three or four million other poor souls caught up in this 20th-century terror, but also, by keeping the memory of their tragedy painfully alive, to prevent its happening again. The latter can be achieved only by acknowledging, and passing on to our children, the existence of absolute, uncompromisable standards of human conduct. Mankind has traditionally derived such standards from religion; and the West has derived them from and through the Jews. Those absolute and uncompromisable standards of human conduct will not endure without an effort to make them endure, and it is to that enterprise that we rededicate ourselves today. They are in the Decalogue, and they are in the question put and answered by Micah: “What doth the Lord require of thee, but to do justly, to love mercy, and to walk humbly with thy God.”

For those six million Jews to whom it was not done justly, who were shown no mercy, and for whom God and his laws were abandoned: may we remember their sufferings, and may they rest in peace.


The Establishment Clause Ghoul Stalks Maryland

by Ed Whelan

Two days ago, a divided panel of the Fourth Circuit ruled (in American Humanist Ass’n v. Maryland-National Capital Park Comm’n) that Maryland officials violated the Establishment Clause by displaying and maintaining on public property—indeed, “in the center of one of the busiest intersections” in the county—“a 40-foot tall Latin cross, established in memory of soldiers who died in World War I.”

In reaching their conflicting conclusions, both the majority and the dissenting judge undertook to apply the infamous Lemon test (from the 1971 decision in Lemon v. Kurtzman). They parted ways on the so-called “second prong” of Lemon—namely, as the majority puts it, whether “a reasonable observer would fairly understand the [monument] to have the primary effect of endorsing religion.”

This supposed “prong” in fact has no actual point, as it is full of weasel words that make it a font of subjectivity. The only sensible response of any “reasonable observer” to the question, “Does this monument have the primary effect of endorsing religion?” would be to say, “What the heck does that question even mean?”

I’m reminded of one of the most colorful passages Justice Scalia ever wrote, in Lamb’s Chapel v. Center Moriches Union Free School District (1993) (citations omitted):

As to the Court’s invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts.” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

All three judges on the Fourth Circuit panel, for what it’s worth, are very liberal judges. I’ll further note that the dissenting judge in this case, chief judge Roger Gregory, wrote the Fourth Circuit’s recent en banc decision that ruled that President Trump’s travel restrictions flunked the Lemon test.

It’s time for the Supreme Court to kill the Lemon ghoul once and for all.

Judicial Nominations Update

by Carrie Severino

As we enter the last full week of October, the number of federal judicial nominees awaiting a Senate floor vote has ballooned to fourteen. The last federal judge confirmed by the Senate was Ralph Erickson (U.S. Court of Appeals for the Eighth Circuit) on September 28, 2017.

Meanwhile, the number of judicial vacancies continues to rise, reaching a total of 167 current and known future vacancies. Recognizing the growing logjam of nominees awaiting confirmation—with more likely to hit the Senate floor next week—yesterday eleven senators sent a letter to Senate Majority Leader Mitch McConnell expressing their support to work “24/7” to overcome “unprecedented obstruction” by the Democratic minority.

Here is this week’s update on federal judicial nominations.

Number of total current and known future vacancies: 167

Courts of Appeals: 27

District/Specialty Court*: 140

Number of pending nominees for current and known future vacancies: 54

Courts of Appeals: 14

District/Specialty Courts: 40

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes

Courts of Appeals: 2

District/Specialty Courts: 12

Nominees Confirmed by the Senate

Courts of Appeals: 4

District/Specialty Courts: 2

This Day in Liberal Judicial Activism—October 20

by Ed Whelan

2006 — Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to — or even to await — the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.

Don’t Turn Greg Katsas’ Nomination Into a Democratic Grievance Free-For-All

by Carrie Severino

The Senate Judiciary Committee is now holding its nomination hearing for Greg Katsas, President Trump’s nominee to the D.C. Circuit. Because he has served this year as Deputy White House Counsel, it appears committee ranking member Dianne Feinstein (D-CA) and her Democratic colleagues are using this as an opportunity to turn the hearing into an inquisition regarding virtually every aspect of the Trump administration they oppose. Such a strategy could operate as a subterfuge to overlook the nominee’s impeccable character and rich experience to serve as an appellate judge.

Hopefully this nomination will remain about the nominee’s qualifications and not become a free-for-all regarding the administration. There are prudential reasons for this concern even apart from the importance of filling vacancies in our woefully understaffed federal judiciary. Our constitutional separation of powers offers the president the right to receive candid and confidential advice, a consideration that should not be dismissed casually. The Supreme Court recognized as much in its landmark Watergate-era decision on executive privilege in United States v. Nixon (1974) even while it held that a “generalized assertion of privilege” without more would give way to a “demonstrated, specific need for evidence in a pending criminal trial.”

Whether or not the term “executive privilege” is used (it usually is not), the president’s interest in confidentiality has been asserted as early as the administration of George Washington, when the first chief executive was confronted with congressional demands for documents relating to military misfortunes and treaty negotiations. It remains consistent practice for senior executive branch officials to regard information regarding internal deliberations prior to reaching important decisions on policy and other key matters, including law enforcement investigations, as confidential.

In interbranch conflicts where presidents resist demands for testimony or documents from Congress, courts over the years following Watergate have been reluctant to intervene, preferring that the two branches negotiate their own resolution. In other contexts, however, we have instructive holdings from none other than the D.C. Circuit. In In re Sealed Case (1997), that court recognized that a “presidential communications privilege” applies “to communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.” As a member of such a staff, Katsas in his current position would be covered by that privilege. Unlike a narrower “deliberative process privilege” that applies to executive branch officials beyond an immediate White House adviser’s staff, the presidential communications privilege “applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.”

Consistent with the Nixon precedent, this privilege is not absolute, but it is “more difficult to surmount” than that based strictly on deliberative process. To overcome it, a party “must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials.” In other words, before demanding testimony or documents from a White House adviser’s staff, show why you need the information from that source and why you cannot get it elsewhere.

When Brett Kavanaugh had his nomination hearing for the D.C. Circuit in 2006, he was asked about issues on which he had given advice as Staff Secretary to President Bush. He refrained from giving more than a general idea of the subject matter he encountered in that position and would not discuss any specific advice he offered. The Senate confirmed him 2½ weeks later.

In this case, Katsas should fare no worse. He enjoys a reputation for integrity and is not facing allegations of involvement in, or even knowledge of, government misconduct. His name has not come up in connection with arguably the Democrats’ top investigative priority this year—one initiated by the Judiciary Committee’s Republican chairman: the probe of Russian interference in the 2016 election and the firing of James Comey. If Katsas had information critical to that investigation, you can bet it would have come up there.

Still, given their track record, don’t be surprised at the spectacle of the Democrats ignoring other venues for investigation and behaving as if they are participating in a kitchen-sink executive branch oversight hearing instead of a judicial nomination hearing.

Update: During the hearing, Katsas testified that he had not worked on any matter relating to the dismissal of James Comey or to Paul Manafort, including his June 9, 2016, meeting with a Russian attorney, and that he lacked knowledge of any underlying facts on the question of Russian interference in the 2016 election. His only work that even related to Special Counsel Robert Mueller’s probe was confined to “a few discrete legal questions arising out of the investigation.” Accordingly, he also testified that the special counsel has not asked to interview him in connection with his investigation. For that matter, he added that he only learned of Comey’s dismissal when he saw mention of it on television. Based on this, the Committee could not make a serious argument overcoming the presumption of executive privilege.


This Day in Liberal Judicial Activism—October 16

by Ed Whelan

1898 — William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.

This Day in Liberal Judicial Activism—October 15

by Ed Whelan

1956 — So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.

2014 — By a vote of 9 to 2, a limited en banc panel of the Ninth Circuit rules (in Lopez-Valenzuela v. Arpaio) that an Arizona law that bars pretrial release of an illegal alien charged with a serious felony offense violates substantive due process.

Dissenting months later from the Supreme Court’s refusal to review the ruling, Justice Thomas, joined by Justice Scalia, will lament that the Court fails to exercise its certiorari discretion “with a strong dose of respect for state laws” and that “indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds.”

This Day in Liberal Judicial Activism—October 14

by Ed Whelan

1983 — When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.

UVA Law Event on Scalia Speaks

by Ed Whelan

Next Tuesday, October 17, at 11:30, I’ll be at the University of Virginia law school to discuss Scalia Speaks, the bestselling collection of Justice Scalia’s speeches that I’ve co-edited. I’m very pleased that UVA law professors (and fellow former Scalia clerks) John Duffy and Aditya Bamzai will also take part.

The event, which is jointly sponsored by the law school’s Federalist Society chapter and by its St. Thomas More Society, will take place in Caplin Pavilion and will include a free lunch. And, yes, copies of Scalia Speaks will be available for purchase.

Scalia Speaks Hits NYT Best Sellers List

by Ed Whelan

I’m delighted to report that after its first week of sales Scalia Speaks (which I co-edited) is already a “Best Seller”: #15 on the New York Times Best Sellers list for hardcover nonfiction.

While I’m at it, I’ll highlight some more rave reviews (on top of previous ones I’ve highlighted):

In the new (Oct. 30) issue of National Review, James Rosen praises Scalia Speaks as “engrossing and invaluable, a treasure for lawyers and non-lawyers alike, a milestone in the literature of this profoundly influential American and in the annals of the Supreme Court.”

In her nationally syndicated column, my Ethics and Public Policy Center colleague Mona Charen finds “many reasons to rejoice at [this] new collection of Scalia’s speeches”: his “vivid prose,” his “characteristic drollery,” “an almost intimate picture of one of the giants of our age.” Further:

There is much to learn in these speeches about the Constitution, Western civilization, the intersection of faith and public policy, American history and, of course, the law. But the thread that connects all is Scalia’s bone-deep appreciation for the primacy of character.

Scalia Speaks is available everywhere, including at Costco. Buy it now, for yourself and for your family and friends. You’ll be very glad that you did.

This Day in Liberal Judicial Activism—October 12

by Ed Whelan

1985 — In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.

Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:

When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.

But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.

Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

Speaking of ‘Sociological Gobbledygook’

by Ed Whelan

In a grandstanding letter to Chief Justice Roberts, Eduardo Bonilla-Silva, president of the American Sociological Association, takes umbrage at the Chief’s reference to “sociological gobbledygook” at oral argument in the redistricting case of Gill v. Whitford. But Silva does so only by grossly misrepresenting Roberts’s point.

Silva gets on his high horse by pretending that the Chief was dismissing all of sociology as “gobbledygook.” But the Chief was instead characterizing the sorts of standards that were being advanced as measures of an unconstitutional gerrymander. Here’s the set-up for his remark (pp. 37-38 (emphasis added)):

Mr. Smith, I’m going to follow an example of one of my colleagues and lay out for you as concisely as I can what — what is the main problem for me and give you an opportunity to address it….

[I]f you’re the intelligent man on the street and the Court issues a decision, and let’s say, okay, the Democrats win, and that person will say: “Well, why did the Democrats win?” And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans.

It’s stuff like this that the Chief is plainly referring to when, replying to Paul Smith’s response, he says (p. 40) that “the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but [what] I can only describe as sociological gobbledygook.” [Addendum in response to one reader's confusion: If Bonilla-Silva had undertaken to defend the standards that the Chief was criticizing, rather than to misread the Chief as dismissing all of sociology, I would not enter into the debate.]

Pro tip to Bonilla-Silva: If you’d like to convince someone that your field “is rigorous and empirical,” it would help if you displayed some intellectual rigor and attention to actual facts.

What’s even funnier about Bonilla-Silva’s letter is that he offers “just a few examples of the contributions of sociological research to American society that our members offered in response to your comment.” But he doesn’t offer any citations in support of his laundry list (which includes things like “Modern public opinion polling”). It seems as if he’s just sent out an email soliciting such examples and copied and pasted in whatever responses he received.

Bonilla-Silva even has the gall to offer this invitation to the Chief: “Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff.”

If the Chief does happen to have the preconception that many sociologists are pretentious buffoons, Bonilla-Silva’s letter will reinforce that preconception.

Addendum: A reader also points out that Bonilla-Silva dated his letter “October 9, 2018.” Yes, the sort of mistake anyone can make. But reflective of the top-to-bottom sloppiness of his letter. (Update (12:10 p.m.): The ASA has now changed both the online version and the PDF, so it now presents a false version of the letter that it sent to the Chief. Now that’s some display of intellectual integrity!)

This Day in Liberal Judicial Activism—October 11

by Ed Whelan

1990 — More from Florida justices Rosemary Barkett and Gerald Kogan. In Stall v. State, the Florida Supreme Court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional. In a brief dissent, Barkett, joined by Kogan, asserts: “A basic legal problem with the criminalization of obscenity is that it cannot be defined.… Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.” Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”

Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections. Nor does she recognize that there are any number of criminal laws — criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide — whose definition or application is not more objectively “obvious to all” than for obscenity.

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

Judicial Nominations Update

by Carrie Severino

At its markup last Thursday, the Senate Judiciary Committee voted on, among others, the nominations of Amy Coney Barrett and Joan Larsen, advancing them to the Senate floor.  This brings the number of judicial nominees awaiting confirmation votes to a total of ten.  The Senate is currently in the midst of a one-week recess and returns next Monday, October 16th.

Number of total current and known future vacancies: 166

Courts of Appeals: 27

District/Specialty Court*: 139

Number of pending nominees for current and known future vacancies: 54

Courts of Appeals: 14

District/Specialty Courts: 40

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes

Courts of Appeals: 2

District/Specialty Courts: 8

Nominees Confirmed by the Senate

Courts of Appeals: 4

District/Specialty Courts: 2

This Day in Liberal Judicial Activism—October 10

by Ed Whelan

2008 — By a vote of 4 to 3 — with the decisive vote provided by a lower-court judge who, as a result of two curious recusals, was sitting in for the chief justice — the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, invents a right to same-sex marriage under the state constitution.

Richmond and William & Mary Events on Scalia Speaks

by Ed Whelan

This Wednesday evening at 6:00, I’ll be at the University of Richmond law school to discuss Scalia SpeaksThe event is jointly sponsored by the law school’s Law Library and its Federalist Society chapter as well as by the St. Thomas More Society of Richmond. Richmond law professor (and fellow member of the Scalia law family) Kevin C. Walsh will also take part.

On Thursday, I’ll be at William & Mary law school for a lunchtime discussion of Scalia Speaks. This event is jointly sponsored by the law school’s Institute of Bill of Rights Law and its Federalist Society chapter. Also kindly taking part will be W&M law professors Neil C. Devins, director of the Institute of Bill of Rights Law, and Alan J. Meese, a former Scalia clerk.

This Day in Liberal Judicial Activism—October 9

by Ed Whelan

1986 — In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams — well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”

This Day in Liberal Judicial Activism—October 8

by Ed Whelan

2006 — New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’ — not opinion — that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….  Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

This Day in Liberal Judicial Activism—October 6

by Ed Whelan

2000 — Liberal judicial activists eagerly seize opportunities to expand unsound or dubious precedents. In 1971, the Supreme Court had ruled in Bivens v. Six Unknown Federal Narcotics Agents that the Constitution confers a claim for damages against a federal agent for allegedly unconstitutional conduct. Writing for a Second Circuit panel in Malesko v. Correctional Services Corp., Judge Sonia Sotomayor rules that a Bivens claim may also be made against a private corporation acting under color of federal law.

One year later, the Supreme Court will reverse the Second Circuit ruling by a 5-4 vote.