Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 7

(Brendan McDermid/Reuters)

1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material. Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment. Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Yep, that carefully captures what viewing obscenity is all about. (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)

1969—In majority opinions by Justice Brennan in Kirkpatrick v. Preisler and Wells v. Rockefeller, the Supreme Court, building on its 1964 ruling in Wesberry v. Sanders (see This Day for February 17), rules that the states, in crafting their congressional redistricting plans, must aim to “achieve precise mathematical equality” in the populations of congressional districts. It rejects the argument that there is any “fixed numerical or percentage population variance small enough to be considered de minimis.”

In dissent, Justice Harlan laments that the Court “transforms a political slogan [‘one man, one vote’] into a constitutional absolute”:

Strait indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history, and economics, so as to achieve the magic formula: one man, one vote….

[I]nsistence on mathematical perfection does not make sense even on its own terms. Census figures themselves are inexact; our mobile population rapidly renders them obsolete; large groups of ineligible voters are unevenly distributed throughout the State.

Harlan also presciently observes that “the Court’s exclusive concentration upon arithmetic blinds it to the realities of the political process…. The fact of the matter is that the rule of absolute equality is perfectly compatible with ‘gerrymandering’ of the worst sort.”

Recommended

The Latest