The reader just has to wonder at Mr. Ganesh’s ignorance of American political/jurisprudential history ! Brown v. Board I & II denounced by the revered Learned Hand, as ‘second-guessing of legislative choices by the states’ was the grain of sand, that political/legal irritant, that was the ‘first cause’ of the Federalist Society? Learned Hand its political/rhetorical midwife?
It was not, he wrote, “a lawless act to import into the Constitution such a grant of power,” for “without some arbiter whose decision should be final the whole system would have collapsed.” But justices and other judges, he advised, should use this power only when that was essential—when a governmental act violated the clear “historical meaning” of the amendments in the Bill of Rights—or they would function as a super-legislature. “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians,” he said famously, “even if I knew how to choose them, which I assuredly do not.”
The lectures were an attack on judicial activism but also the Warren Court. In 1954, Warren had led the Court to the unanimous Brown v. Board of Education ruling. Every justice then on the Court, as the legal historian Michael Klarman noted, “had criticized untethered judicial activism as undemocratic.”4 But the justices recognized that America was a transformed nation in its views about race and that history compelled the Court to find segregation of public schools unconstitutional.5 In a short opinion, Warren stated that principle.
Among liberal and centrist legal thinkers, the question was how broad a principle of equality the Court had actually stated. In his lectures, however, Hand staked out a very conservative position. The Brown ruling was unacceptable because it was second-guessing of legislative choices by the states, even though that put Hand on the wrong side of history.
See also ‘The Partisan: The Life of William Rehnquist’ by John A. Jenkins a revelatory biography of this jurist, the first of his kind to occupy a Supreme Court chair. Here is Eric A. Posner’s caustic review of Mr. Jenkins book. Mr. Posner is a partisan of Rehnquist.
THE PARTISAN IS the first full biography of William Rehnquist, who was an associate justice of the Supreme Court from 1972 to 1986, and chief justice from 1986 to his death in 2005. Rehnquist was one of the more conservative members of the Court, and had many detractors. Jenkins too does not like Rehnquist’s performance on the Court, but his objection amounts to little more than the complaint that Rehnquist decided cases differently from the way Jenkins would have decided them, which leads to the forensic task of sifting through Rehnquist’s life for an explanation as to how he could have gone so far astray. This lack of generosity toward his subject undermines a biography that could have addressed some interesting questions, such as how someone who tended toward the extreme and frequently dissented managed to lead the institution so effectively.
Roe V. Wade takes the lead in Mr. Ganesh’s ‘History Made to Measure‘ that ends here, in the thicket of ‘Ganesh Speak’, or should it be ‘Ganesh Incantation‘?
The Supreme Court can launch a judicial revolution from the right, then, but at risk to itself and the party that enabled it. Don’t be surprised if even a 6-3 majority settles for gradual incursions into the left’s body of work. This would show a concern for tangible institutions over abstract projects and a willingness to let sleeping dogs lie. “Conservatism”, we might call it.
This Politico news story, report puts forward the fact that that Amy Coney Barrett, the most likely candidate to replace Ginsberg, is the product of the very careful grooming by the Textualist’/’Originalist’ clique. Note the melodrama of the last quoted paragraph!
Amy Coney Barrett was prepared for this moment.
Ruth Bader Ginsburg had been seated on the Supreme Court for only a year, in 1994, when a group of professors at the University of Notre Dame first recognized the potential of a first-year law student and began paving the way for her career as a conservative jurist: collaborating on scholarship, helping her land a Supreme Court clerkship and later recruiting her to the law school’s faculty.
The group was part of a growing legal movement opposed to the secularization of American society generally and to the Supreme Court’s Roe v. Wade ruling in particular. The 1973 abortion-rights decision not only struck many conservatives as an affront their religious values, but to the principle of judicial restraint. To wage what would be a decades-long fight to reverse the activist decisions of the court from 1950s to the 1970s, they needed young legal minds like Barrett’s.
“She was kind of the Manchurian candidate,” said one former colleague at Notre Dame Law School. “She’s been groomed for this moment all the way along.”
The slow but inexorable erosion on the Supreme Court’s authority, moral and political, began with the appointment of Rehnquist by Richard Nixon.