The hysteria of such as E.J. Dionne, Linda Greenhouse, and Laurence Tribe about an assertedly partisan and conservative Supreme Court is amusing to observe. I recall the mid-'60s, where each Monday saw the Court play nine-pins with established precedents, culminating in Reynolds v. Sims, which Chief Justice Warren considered his greatest achievement (notwithstanding the devastating dissent of Justice Harlan) with its demonstration that the 14th Amendment had nothing to do with voting rights and that partisan gerrymandering and polarized legislatures would be the result.
There is a tendency to forget that, apart from promotion to the Chief Justiceship of a liberal Republican, Justice Stone, all of Franklin Roosevelt’s nine appointments were of Democrats. After the retirement of Justice Owen Roberts in 1949, there was a two-month hiatus when there were no Republicans on the Supreme Court.
The notion seems to be that presidents properly own Supreme Court nominations. But the requirement of Senate confirmation was provided to prevent nomination of cronies and servile judges. Over the course of history some 30 nominees failed of confirmation and eight or nine besides Merrick Garland were spared hearings, a not abnormal consequence of divided control of the branches of government, as presidents beginning with John Tyler could testify. The Messrs. Dionne and Tribe, though they were around at the time, were not heard to bemoan the suffering of the well-qualified and honest Clement Haynsworth.
The present anguish reflects the fall of the last bastion of the nation’s political centralizers in an age in which there is increasing demand for decentralization. The Supreme Court, the late Philip Kurland observed, “essentially is a moon, rather than a sun. It reflects, if at times it distorts, changes already imminent in the society. Its function is more to justify than to initiate, to choose among preferred contending social values rather than to initiate them.”
For 70 years, there has been disillusionment throughout the Western world with the consequences of the centralizing ideologies fostered by the Depression and the necessary mobilization for war. The emphasis in Western Europe has been on the de-nationalization of industries, free trade, and the devolution of government finance, most dramatically in West Germany in 1968 but also in connection with the Mitterand reforms in France and similar devolution in Spain, Italy, and Great Britain.
Because of the unique heritage of chattel slavery and subsequent disenfranchisement of black Americans, the United States has been a partial exception to this rule, but not as to free trade and economic deregulation. The excuse for centralization here has now worn thin. The Washington partisans' control of such things as abortion, law enforcement, firearms, K-12 education, elections, and the political system have recently become almost deranged, recalling Russian historian and socialist Peter Kropotkin’s description of 15th century advocates: “Lawyers versed in the study of Roman law flocked into cities…The very forms of the village community, unknown to their code, the very principles of federalism were repulsive to them as ‘barbarian’ inheritances. Caesarism, supported by the fiction of popular consent and by the force of arms, was their ideal and they worked hard for those who promised to realize it.”
The critics of the Supreme Court now view with alarm state legislation to protect the secret ballot, court decisions that limit federal criminal jurisdiction, erosion of the educationist monopoly that excludes 90 percent of college graduates from the teaching force and imposes political indoctrination on students, return of control of contested moral issues to the States, and an end to the proclamation of situation ethics as a rule of constitutional law. The Supreme Court is not imposing its views, but removing constraints on lower governments, churches, and families. These are not unhealthy tendencies. States’ rights at the inception of the nation were a libertarian cause giving rise to the Bill of Rights. It is startling that in a country that professes to be democratic that the last resort of a diminishing faction is the proposed packing of the highest court.
George Liebmann is the president of the Library Company of the Baltimore Bar and is the author of numerous works on law and history, most recently Vox Clamantis In Deserto: An Iconoclast Views Four Failed Administrations.
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