This Week in Liberal Judicial Activism—Week of May 19

1996—What’s one way to deal with unhelpful precedent?  Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.  In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal.  A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing special protections upon those engaged in homosexual conduct.  Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause.  (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having  seriously eroded Bowers.)  Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

1991—Federal district judge H. Lee Sarokin delivers a This Week classic.  (Yes, faithful readers have encountered this case before, but Sarokin’s escapade deserves special attention.)  The backdrop:  Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.  The library then adopted written policies setting forth minimal standards of patron behavior.  After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression.  On appeal, the Third Circuit unanimously reverses Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace.  Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library.  (For a fuller discussion of this This Week classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton appointed Sarokin to the Third Circuit in 1994.

1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing.  After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials.  Mapp is convicted of possession of these materials.  The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court.  The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914.  In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation:  “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”