1970—By a vote of 5 to 3, the Supreme Court, in an opinion by Justice Brennan, rules in Goldberg v. Kelly that the Constitution requires that the government provide an evidentiary hearing before terminating welfare payments to an individual whom it has determined is not eligible to receive such payments. Justice Black objects in dissent:
I would have little, if any, objection to the majority’s decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient.… [I]t is obvious that today’s result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.
1988—So much for the president’s duty to uphold the Constitution. Writing for a unanimous Ninth Circuit panel in Lear Siegler v. Lehman, Judge Betty Fletcher acknowledges that the federal government had “credible” grounds for believing that the federal Competition in Contracting Act of 1984 unconstitutionally required protests over the awards of certain contracts to be referred to a legislative-branch official (the Comptroller General). She further acknowledges that that legal question was not governed by clear judicial precedent. But, she rules, the government’s “position … that the President’s duty to uphold the Constitution and faithfully execute the laws empowers the President to interpret the Constitution and disregard laws he deems unconstitutional” (emphasis in original) is supposedly “utterly at odds with the texture and plain language of the Constitution, and with nearly two centuries of judicial precedent.”
2004—The Left is adept at what Abraham Lincoln labeled “lullaby arguments”—false claims designed to lull the listener into a sense of complacency. In testimony at a Senate hearing, law professor Cass Sunstein argues that a constitutional amendment on marriage is unnecessary because the prospect that the Supreme Court would invent a constitutional right to same-sex marriage is utterly fanciful:
It is possible that the Chicago White Sox and the Chicago Cubs will meet in the World Series and play to a seventh game tie. That is unlikely, but that scenario is more likely than it is that the Supreme Court of the United States, as currently constituted, will hold that there is a constitutional right to same-sex marriage. This is a reckless conception of what is on the horizon and it is indefensible by reference to anything any Supreme Court Justice has said, at least on the bench, and I believe even off the bench.
Sunstein was testifying less than one year after the Supreme Court’s 6-3 decision in Lawrence v. Texas. In his majority opinion for five justices in that case, Justice Kennedy combined his usual gauzy rhetoric with the specific assertions that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child reading, and education” (emphasis added) and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” So much for Sunstein’s claim that any concern that the Court might “hold that there is a constitutional right to same-sex marriage” was “a reckless conception of what is on the horizon” and “indefensible by reference to anything any Supreme Court Justice has said.”
2009—President Obama nominates radical transnationalist Harold Koh to be State Department legal adviser, a position that would give Koh a cornucopia of opportunities to advance his agenda of having American courts import international law to override the policies that American citizens adopt through the processes of representative government. (See here for more detail.) Three months later, the Senate confirms Koh by a 62-35 vote.