Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 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.”

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