1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime. Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.)
Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.” Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.” Asks Frankfurter rhetorically: “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”
2022—In a bombastic 288-page ruling (in League of Women Voters v. Lee) in which he declares that the right to vote is “under siege,” federal district judge Mark E. Walker permanently enjoins recently enacted provisions of Florida law that regulate the use of drop boxes for collecting ballots, govern third-party voter-registration efforts, and prohibit solicitation of voters near drop boxes and polling places.
Barely a month later, an Eleventh Circuit panel, in granting a stay of Walker’s ruling pending appeal, will fault Walker for failing to accord Florida legislators the presumption of legislative good faith that Supreme Court precedent requires and for tainting them with Florida’s “history beginning immediately after the Civil War” and into the “early and mid-1900s.”
In April 2023, a divided panel of the Eleventh Circuit will broadly reject Walker’s ruling.