Bench Memos

This Day in Liberal Judicial Activism—April 21

1969—In his majority opinion in Shapiro v. Thompson, Justice Brennan rules that state and D.C. laws that deny welfare assistance to residents of less than a year violate a constitutional right to travel interstate. Brennan’s usual ally, Chief Justice Warren, dissents on the ground that Congress had authorized the one-year residency requirement. In a separate dissent, Justice Harlan objects that he “know[s] of nothing which entitles this Court to pick out particular human activities, characterize them as ‘fundamental,’ and give them added protection under an unusually stringent equal protection test.” More broadly, Harlan observes:

“Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises.”

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