This Day in Liberal Judicial Activism—December 11

By ED WHELAN

December 11, 2021 8:00 AM

2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years earlier—when it first ruled that Ohio’s existing system of financing its public-school system somehow violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.” The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.

Some six months later, the court will finally end the litigation. Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.

2009—Federal district judge Nina Gershon rules that a provision of federal appropriations law that restricts funding of the scandal-plagued ACORN organization is an unconstitutional bill of attainder. In holding that the deprivation of the opportunity to apply for discretionary federal funds “falls within the historical meaning of legislative punishment,” Gershon finds “particularly instructive” the Supreme Court’s 1946 ruling in United States v. Lovett. But Lovett involved a permanent proscription on further employment in the federal government of three federal employees, not a temporary bar on applications for federal funding by an organization. Somehow Gershon doesn’t see fit to explore carefully whether these obvious differences matter.

In August 2010, a unanimous Second Circuit panel will reverse Gershon’s ruling.

2015—By a tie vote of 6-6, the Second Circuit denies rehearing en banc of the divided panel decision in Turkmen v. Hasty, which, in the words of the six dissenters (including two appointees of Democratic presidents), makes the Second Circuit “the first in the nation to imply a Bivens damages action against senior Executive Branch officials—including the former Attorney General of the United States and the Director of the FBI—for actions taken to safeguard our country in the immediate aftermath of the 9/11 attacks.”

In June 2017, the Supreme Court will rule by a 4-2 vote (with three justices recused) in Ziglar v. Abbasi that the Bivens theory of an implied cause of action for damages should not be extended to cover the detention-policy claims brought against the government officials.

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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