This Day in Liberal Judicial Activism—October 11

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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.”

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2019—In Preterm-Cleveland v. Himes, a divided panel of the Sixth Circuit bars the state of Ohio from enforcing its law that prohibits medical providers from performing an abortion if they have “knowledge that the pregnant woman is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome.

In her majority opinion, Judge Bernice B. Donald contends that the Supreme Court’s Roe/Casey regime confers a “categorical” right to abortion before viability. But as Judge Alice Batchelder points out in dissent, the Court’s rulingin Gonzales v. Carhart (2007) allowed the federal ban on partial-birth abortion to apply before viability.

In December 2019, the Sixth Circuit will grant en banc rehearing in the case. That proceeding is pending.

2019—Federal district courts in New York, California, and Washington state impose preliminary injunctions that prevent the Department of Homeland Security from enforcing its new rule defining the term “public charge” in federal immigration law. The New York and Washington injunctions apply universally, while the California injunction applies to California and four other jurisdictions.

In December 2019, a unanimous Ninth Circuit panel will grant DHS’s request for a stay of the California and Washington injunctions pending appeal, and in January 2020 the Supreme Court (by a vote of 5 to 4) will do the same for the New York injunction. In an opinion concurring in the Court’s grant of the stay, Justice Gorsuch, joined by Justice Thomas, will decry the “increasingly common practice” of “nationwide” or “universal” injunctions, in which trial courts “order[] relief that transcends the cases before them.”

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