Lyle Denniston, a reporter at SCOTUS Blog, posted an extremely insightful review yesterday of this past Supreme Court term. In essence, he argues that the Roberts court took a much more activist position in 2010-11, disregarding the so-called “Ashwander rules.” Just to give you some context, in Ashwander v. Tennessee Valley Authority back in 1936, Justice Brandeis cautioned against deciding a constitutional issue when not necessary to resolve a case. The type of judicial restraint that Justice Brandeis favored was rarely on display, according to Denniston, last term.
Denniston takes aim at “conservative” justices and “liberal” justices alike. Defining “activist” as “decid[ing] a case on a broader legal basis than is necessary,” Denniston commented at length about:
– Justice Kennedy’s overly broad ruling in a chemical poisoning prosecution case, in which Kennedy “chose not to confine the ruling to a simple declaration that a person facing a criminal trial may sue to challenge the constitutionality of the law he allegedly violated, but chose instead to decide a quite abstract question of whether the Constitution’s protection of ‘federalism’ is a guarantor of the civil rights of citizens of the states”
– Justice Sotomayor’s creation of “a virtually open-ended “public emergency” exception to the Sixth Amendment’s Confrontation Clause.”
– Justice Kagan’s decision in a case regarding police authority to interview a child about a sex abuse case, to create — “in what for all the world seemed like an advisory opinion – a completely unprecedented right of public officials to appeal lower court rulings on their legal immunity, even though they had won such a case below.”
– Justice Alito’s approach to the exclusionary rule, which “pressed close to the point of ruling that the rule could only be enforced in the most outrageous cases of stubbornly deviant police misconduct”
– Chief Justice Roberts’ “broad constitutional ruling in the course of deciding what had seemed like a minimalist dispute over the bankruptcy law rights of the estate of the former topless performer Anna Nicole Smith”
– Justice Clarence Thomas’ decision in a drug manufacturer case, which was so broad that he “lost his majority for the part of the opinion in which he borrowed the rather odd musings of a law review article to broaden the scope of the Constitution’s Supremacy Clause”
Read the full post HERE.
