Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 15

Justice William Brennan in 1972 (Library of Congress)

1956—So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.

2014—By a vote of 9 to 2, a limited en banc panel of the Ninth Circuit rules (in Lopez-Valenzuela v. Arpaio) that an Arizona law that bars pretrial release of an illegal alien charged with a serious felony offense violates substantive due process.

Dissenting months later from the Supreme Court’s refusal to review the ruling, Justice Thomas, joined by Justice Scalia, will lament that the Court fails to exercise its certiorari discretion “with a strong dose of respect for state laws” and that “indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds.”

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