This Day in Liberal Judicial Activism—April 25


1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

1938—In his famous footnote 4 in United States v. Carolene Products Co., Justice Harlan F. Stone lays the foundation for courts, in addressing substantive due process claims, to exercise “more exacting judicial scrutiny” of certain disfavored classes of statutes.

1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark all the way across the country to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”

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Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.

2018—A Ninth Circuit panel rules (in Richey v. Dahne) that a prison official is liable to a prisoner under the First Amendment for not processing a grievance that, even after the prison official’s initial objection, “included rude comments about [a] guard’s weight” and stated that “[i]t is no wonder why guards are slapped and strangled by some prisoners.”

A year later, in dissenting from the Supreme Court’s denial of review, Justice Alito, joined by Justice Thomas and Justice Kavanaugh, will question the proposition that “a prison must accept grievances containing personal insults of guards” and will marvel at the proposition that the First Amendment “require[s] a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard.” The Ninth Circuit’s decision, they observe, appears to “def[y] both our precedents and common sense.”

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