Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 28

Arthur Goldberg, 1965. (Wikimedia commons)

1962— President Kennedy’s appointment of Arthur Goldberg to replace the retiring Felix Frankfurter creates a clear liberal activist majority on the Supreme Court. As Seth Stern and Stephen Wermiel write in Justice Brennan:

Goldberg’s arrival meant that Brennan did not need to accommodate [Byron] White’s concerns [of judicial restraint]: the bloc had its fifth vote without him. After the very first Friday of the term, Brennan came back to his chambers with a look of triumph on his face—a look he would keep all term.

2018—Federal district judge Emmet G. Sullivan rules (in Blumenthal v. Trump) that individual members of the United States Senate and House of Representatives have standing to pursue their claim that President Trump has violated the Foreign Emoluments Clause of the Constitution.

In February 2020, an ideologically diverse D.C. Circuit panel will reject Sullivan’s ruling on the ground that it conflicts directly with Supreme Court (as well as circuit) precedent.


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