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This Week in Liberal Judicial Activism—Week of January 7



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Jan. 7        2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, the seldom-credible Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito.  (See here for more.)

 

Jan. 9        1947—Emerging ex utero in New York City, Linda Greenhouse has her first “little crying jag”.  Some four decades later, the oh-so-objective-and-reliable Supreme Court reporter for the New York Times will take part in a pro-abortion rally in the midst of continuing contention over the Court’s concoction of a constitutional right to abortion.  And in 2006, in a speech recounting another “little crying jag” at a recent Simon and Garfunkel concert, she will complain about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” 

 

                  1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion).  Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.  This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute.  

JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.” 

 

Jan. 11      1954— President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice.  Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953.  Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.”  Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition.  But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

 

Jan. 12      1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker.  Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no. 

Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton:  “Power tends to corrupt and absolute power corrupts absolutely.  Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.”  As Seventh Circuit judge Richard A. Posner has written (see This Week for April 4, 1939), Douglas was certainly a bad man:  “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice.…  Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge.” 

 

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism


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