The virtues of an “activist judge,” or the defects, tend to be in the eye of the beholder. A case in point is Jack B. Weinstein, the longtime federal jurist and onetime chief judge of the U.S. District Court for the Eastern District of New York, who died last week at his home on Long Island. He was 99.
By any measure, Weinstein was a force of nature. Appointed to the court in 1967 by President Lyndon B. Johnson, he graduated to senior status as long ago as 1993, but only stopped hearing cases last year. In a 2014 interview, he declared that “every morning, when I get up, I can hardly wait to get into the courthouse,” and it could hardly be doubted. Weinstein carried a heavy caseload, wrote and spoke unceasingly, was the author of authoritative texts on the rules of evidence and civil procedure, and was a mentor to two generations of lawyers, constitutional scholars, and judges, including Ruth Bader Ginsburg, his onetime law student.
His energy and activism, however, were not always disinterested. Born in Wichita, Kansas, the son of a salesman-father and actress-mother, Weinstein’s family moved to Brooklyn when he was five, and he worked his way through Brooklyn College as a part-time dockworker. After wartime service as a naval officer in the Pacific, he graduated from Columbia Law School in 1948, clerked for a federal appellate judge, and, after two years in private practice, returned to Columbia to teach. He was the Nassau County attorney, lecturing part-time at Columbia, when LBJ appointed him, at 46, to the federal bench.
During the next half-century and more, Weinstein acquired a national reputation (in the approving words of the New York Times) for “bold jurisprudence and [an] outsize personality.” The personality was forgivably memorable — he was hard on lawyers and impatient with protocol — but the jurisprudence often had a political, not to say partisan, character.
In some respects, the personality reflected a compassionate common sense: Weinstein preferred to hear cases in a business suit rather than in judicial robes and pushed back against the arbitrary nature of mandatory-minimum sentences, especially for drug crimes. He was mindful of the routine abuse of defendants’ rights and prolonged detention. When sentencing criminals to prison, he customarily addressed them from across a table rather than down from the bench.
The jurisprudence, however, owed more to his instincts as an advocate than a jurist. Starting in the consumer revolution of the 1970s and ’80s, he presided over innumerable product-liability cases and, by combining hundreds and sometimes thousands of claims against manufacturers, “not only engineered mechanisms to distribute damages” (in the words of the New York Times) “but also sometimes fashioned the lawsuits himself … finding novel — some said extralegal — mechanisms for compensation.” In effect, Weinstein acted as prosecutor and jury, as well as judge, and in many instances avoided reversal on appeal by obliging defendants to settle out of court, “even going so far as to establish de facto agencies to administer his rulings.”
The judge depended, to some degree, on public opinion to support his conduct of mass-tort tribunals. This was best illustrated by the Agent Orange cases that emerged in the early 1980s and were consolidated in Weinstein’s courtroom. Agent Orange, a chemical defoliant used in the Vietnam War, was blamed for a variety of ailments, including cancer and birth defects, afflicting thousands of veterans, and Weinstein, worried that the plaintiffs might not persuade a jury, held a series of public hearings in five cities designed to galvanize public sentiment and prompt chemical companies to settle some $180 million on plaintiffs.
The formula wasn’t always successful, however, and while Weinstein set the pattern for subsequent class-action lawsuits, including establishing compensation funds for victims, their reach sometimes exceeded their grasp. A 1999 case that sought to hold gun manufacturers liable for individual crimes was reversed on appeal, as was a 2002 consolidation of hundreds of lawsuits against tobacco companies into a single case to assess punitive damages.
Philip Terzian is the author of Architects of Power: Roosevelt, Eisenhower, and the American Century.
