If it's one thing political conservatives seem to hate the most, it's a Supreme Court justice appointed by a Republican president who disappoints by voting anywhere to the left of the hard-right conservative line. These views are so far to the right that it must be nearly impossible to hang onto the curve.
President Dwight D. Eisenhower, our victorious WWII general, the George Washington of the post-war age, was courted by both political parties. In fact he hadn't declared for Democrat or Republican when he mustered out and was appointed president of Columbia University in N.Y. to polish him up for a presidential bid. Whichever party got him as their standard bearer was going to win. He won the War, for goodness sake. Who else would you want for president? Adlai Stevenson? It was not to be.
The GOP got Ike and he appointed Earl Warren as Chief Justice, because warren brought California into the Ike column in the 1952 election. The deal was that Ike would appoint Earl to the next Supreme Court vacancy. When the Chief Justice died, Warren figured he'd earned it. But Ike had in mind one of the eight associate justice seats, not the Chiefdom. But Warren hadn't been a hard-charging prosecutor (in Oakland) and governor for nothing (he supported the Japanese internments as governor). He knew how to count to nine. When Ike's attorney-general, Herbert Brownell, journeyed West to talk Warren out of the Chief Justice slot, Warren told him a deal's a deal.
So he got the top job.
And what was his first big case?
Brown v. Board (1952, 1953, and 1954). It took a little longer to decide this one because it was going to turn the country upside down and Warren needed to do a little jawboning to get everyone on board.
In an earlier case, called D.C. v. Thompson, involving desegregating a Washington restaurant, Justice Stanley Reed, a southerner who, with his wife dined out, remarked, Why--why this means that a nigra can walk into the restaurant at the Mayflower Hotel (where they lived) and sit down to eat at the table right next to Mrs. Reed!" Simple Justice, by Richard Kluger (Vintage Books/Random House, p. 295)
Alas, that's what eventually was allowed to happen, but fortunately the fellow justice didn't live long enough to put up with the indignity of it all, and he and his wife lived out their days Negro-free.
Warren finally turned Reed, the last holdout in Brown, and got his vote to make a unanimous court.
Eisenhower called Warren his worst mistake as far as Supreme Court appointments went.
Justice Souter, until recently, was the conservatives' next worst nightmare, until Justice Kennedy came along.
Not only did Kennedy uphold a woman's right to have an abortion on demand, in Casey, a big conservative no-no, but he also upheld the right of gays to commit sodomy or other non-conservative , non-procreative practices. I hesitate to say the two categories of practices run neck-and-neck...
Here's what conservative law professor David M. Wagner writes in the Weekly Standard about where Justice Kennedy gets off deciding the way he does, that is, not in strict accordance with conservative ideology. He's just not conservative enough, in other words.
The reference is to Ropers v. Simmons, the anti-Juvenile Death Penalty case decided last week.
Conservatives are pro-life before birth but pro-death afterward, for people who don't measure up to their high standard, such as private murderers:
Stevens and Ginsburg give us no citation here [in Ropers], so it's impossible to tell which of the Great Chief Justice's classically misunderstood dicta they are referring to, but we can guess.
It would probably be the one from Marbury v. Madison, about how "it is emphatically the province and duty of the judicial department to say what the law is." Of course: When two or more rules of law could apply to a case, the judge must determine which one prevails. That's what "saying what the law is" would have meant to a Blackstonian judge--and nearly all the lawyers of our founding generation learned from Blackstone's Commentaries. The "say what the law is" dictum does not mean "figure out what we personally think about some controversy and then declare that to be the
law."
Or Stevens may have had in mind Marshall's dicta from McCulloch v. Maryland, about how "it is a constitution we are expounding," not a civil code, and a Constitution "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." But it was the extent of Congress's powers, not the Court's own, that were at issue in McCulloch. These dicta are Marshall's explanation for construing Congress's powers broadly, allowing Congress some freedom to decide among various means of carrying out the powers assigned to it by the Constitution. Yet we constantly see these passages cited as though they announced a judicial power to change the Constitution--even though a Constitution laboring under such a rule would be ill suited to "endure for ages to come," since its meaning could change overnight by a poll of nine judges, as we saw last week in Roper.
Then comes the money line: "If great lawyers of his day--Alexander Hamilton, for example" (Justice Scalia quotes Hamilton at the opening of his dissent, you see)--"were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court." How nice. What next--carve Kennedy's visage on the Court's wall after they get rid of Moses?
Historically, the most successful conservative appointees to the high court have been jurists who had previous Washington experience, and who, despite that demoralizing experience, have a proven record--during or post-Washington--of defending their principles in the crucible of debate. Others, whose experience has been entirely in (say) Arizona or New Hampshire or California, find the plaudits of the media and the Georgetown A-list to be a bargain if all they cost is a retreat from certain conservative principles that one was, on second thought, not all that attached to anyway.
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The line that drew my attention, for it says something about the study and practice of Constitutional Law, was this:
Of course: When two or more rules of law could apply to a case, the judge must determine which one prevails.
That's what "saying what the law is" would have meant to a Blackstonian judge--and nearly all the lawyers of our founding generation learned from Blackstone's Commentaries.
The "say what the law is" dictum does not mean "figure out what we personally think about some controversy and then declare that to be the law."
That's the conservative view when conservatives are not in the driver's seat. When they are in the driver's seat, we call it "the Lochner Era," where judicial activism with a vengeance is fine and dandy, for they're upholding dog-eat-dog capitalism. If you weren't born rich, that's your fault and deserve your fate. Which is why it's worth fighting over every seat on the path to the top court.
In every Constitutional case, there are at least two possible outcomes involving the choice among several legal rules. Legal rules, of course, are like pickup sticks. You remember the game, where you drop about 50 long toothpicks into a pile and take turns removing sticks without dislodging the pile. That's Con-Law. A pile of pickup sticks. First the liberals' turn, and then the conservatives.' The other side must not dislodge the pile, otherwise squawks and moans and lose-your-turn.
Prof. Wagner does a service by pointing out how this works.
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