Bench Memos

This Day in Liberal Judicial Activism—March 23

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.

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.

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