What A CONSERVATIVE Activist Court Might Do — The View From 1987

03/02/2017

In USA TODAY, law professor Glenn Reynolds (Instapundit) asks what decisions an activist conservative Justice might take, if he took the “emanations” and “penumbras” approach to Constitutional law that the Left does.[A 'living Constitution' on the right?, by Glenn Harlan Reynolds, March 2, 2017]

Examples are New Deal decisions increasing Federal power, the “one man, one vote” redistricting (Baker v. Carr and Reynolds v. Sims) and the various abortion decisions.

The one man, one vote thing has racial implications, because of the Great Migration that tends to make “urban” and “black” synonymous politically:

…the Warren Court’s “one man, one vote” rule for state legislative apportionment, in which states — unlike the federal government under the U.S. Constitution — were no longer allowed to have a house of their legislature apportioned by geography rather than population. The result has been that states like California or Illinois, which is red almost everywhere but in the Chicago metropolitan area, are totally dominated by the large populations of urban centers. Those states are also governed badly and suffer from considerable degrees of corruption and enormous debt. Perhaps experience turns out to show that the “one man one vote” approach was wrong, and that there was wisdom after all in the Framers’ approach of not apportioning everything according to population. A “living Constitution” changes with the times!
Lastly, what about the Warren Court’s decisions on reproductive rights in Griswold v. Connecticut (striking down laws against birth control for married people), Eisenstadt v. Baird (doing the same for singles), and Roe v. Wade (finding a constitutional right to abortion)? These decisions were written against a background of hysteria about a "population explosion,” but now the United States — like many other countries — faces not a population explosion but a baby bust, with birth rates too low to sustain population, or to produce enough workers to fund retirement programs for the elderly. These decisions were also followed by a breakdown in family structures that continues to get worse. I can imagine a “living Constitution” conservative concluding that, whatever the logic of these decisions is, experience has shown them to be too flawed to survive.

All of these would be catastrophic for the left, and I’m sure I could come up with many more examples given time and space.

The first one I personally would mention would be Brown vs. Board, normally considered beyond even discussion by law professors. (I don’t necessarily want to go back to de jure segregation, but we can stop courts from interfering in every public school in the country. )

Other candidates for real originalism would include Plyler vs. Doe (free schools for illegal children), Griggs Vs. Duke Power Company (disparate impact), various criminal friendly Fourth and Fifth Amendment decisions that really only protect the right of the guilty to be found not guilty — but not the arguably unconstitutional Sullivan vs. New York Times, granting the media a broad right to libel public figures — because I like that. (Under First Amendment law, I have the same protection against libel suits as the NYT.)

However, I can see where President Trump, one of the most comprehensively libelled public figures in modern history, might feel differently.

In 1987, I read a satirical article by Joe Sobran about a possible conservative future. It was not what Sobran wanted, but what a liberal would fear.

It’s called 2007/The Year in Review, by Joseph Sobran, The American Spectator, December 1987

Ann Coulter visits Joe McCarthy’s grave.

It starts out:

It was another bad year for liberals, as what had once been called "the New Right" consolidated its domination of American politics. The new tone was perhaps best typified on May 2, when President Patrick Buchanan laid a wreath on the tomb of Senator Joseph McCarthy on the fiftieth anniversary of the once-despised Wisconsin senator’s death. "We must rededicate

ourselves to his ideals," the President said, "and see to it that never again is a patriotic public servant hounded to an early grave."

Here are what was imagined for the Supreme Court in an alternate-universe 2007.

“Pornographer Hugh Hefner, 81, was electrocuted in California after the Supreme Court rejected a last-minute appeal for a stay of execution. ‘This had dragged on way too long,’ said Associate Justice Jerry Falwell. ‘Justice delayed is justice denied.’”

“In Albuquerque, a routine police raid uncovered a huge cache of illegal condoms, apparently smuggled in from Mexico.”

“Seven more states ratified a proposed constitutional amendment barring the teaching of the theory of evolution in publicly funded schools and universities.”

“The Supreme Court upheld the use of torture against criminal suspects, provided that all other methods of securing confessions had been exhausted. ‘Torture must never be an end in itself,’ wrote Justice Gilead Simms for the 8-to-l majority. ‘In the great majority of cases wiretaps, raids, informants, and threats should suffice to extract information leading to conviction. The excesses of the Miranda era cannot be invoked to justify excesses in the opposite direction.’”

“Citing health reasons, Justice Robert Bork, 80, announced his retirement from the Supreme Court. According to Washington insiders, the real reason for Justice Bork’s retirement was his discouragement at being the last remaining apostle of judicial restraint in an era of conservative activism.”

“The Supreme Court struck down as unconstitutional the drunk driving laws of all 50 states. Speaking for the five-man majority, Justice Grover Rees held that drunk driving was protected by a ‘penumbra’ of the Twenty-First Amendment.”

“The Supreme Court struck down all federal ‘social programs’ passed since 1933 as invalid under the Tenth Amendment.”

Of course, it turns out to have been a dream. A bad dream, by a Democrat:
Milton Grimsby bolted up in bed. His pajamas were soaked with sweat. He looked around the bedroom.It was still 1987. His wife was already dressed and ready to go to her law office. "Oh Megan," he said, "I've had the most awful dream — …
Milton swung stiffly off the bed and pulled on his robe. The world was starting to seem normal again, but he had to make sure. He hurried into the living room and opened the front door and looked down. Yes, the Washington Post was on the porch.

Read the whole thing, which is very funny. Oh, and Milton, if you’re out there? The Post isn’t on the porch anymore.

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