What would Mr. Dooley make of the latest alarum from the New York Times about how America’s state courts are under “partisan attack”? Mr. Dooley is the fictional bartender who famously proclaimed that “the Supreme Court follows the election returns.”
The Times has been set off by what is happening in Wisconsin, Kansas, North Carolina, and Pennsylvania. Those are among the states where voters are so upset with judicial decisions that they’re taking to politics to curb the courts.
Across the country, the Times warns in an editorial, “state judges are under increasing fire from lawmakers and outside groups angered by their rulings, their power, their tenure or simply their independence.” It asks: “Are we the only ones sensing a pattern here?”
No, is the Sun’s answer, you’re not alone. We also see a pattern. Forgive our spectacles, though. By our lights the political rebellion against the state courts is a predictable response to state judges who have succumbed to the temptation to legislate from the bench.
The tip-off is in a report, cited by the Times, that legislators in “at least 16 states are considering at least 51 bills that would diminish the role or independence of the judicial branch, or simply make it harder for judges to do their job.” The report fears for checks and balances.
Wouldn’t you know that the report is from a center named for William Brennan. He was a member of the Supreme Court majority that decided, in Roe v. Wade, to usurp legislative powers and establish the right to abortion. Few decisions have so poisoned our politics.
It’s not just that the justices breached separated powers. They did so largely on the basis of a right to privacy that the court discovered in another case, known as Griswold v. Connecticut, that — with Brennan concurring — made birth control a constitutional right.
No such right is enumerated in the Constitution. The parchment has 8,000 words, and privacy isn’t among them. The Griswold court famously found the privacy right in the “penumbras” formed by “emanations” of the Bill of Rights.
The court failed to say there was proof of these emanations and penumbras, which are areas of partial illumination. It merely said that earlier cases “suggest” that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees.”
Among the articles of the Bill of Rights whose emanations cast these confounded penumbras, the court reckoned, was the Third Amendment. It prohibits during peacetime the quartering of troops in any house absent consent of the owner.
The idea that this could enshrine a constitutional right to use contraceptives astounded the two Griswold dissenters, Justices Potter Stewart and Hugo Black. “No soldier has been quartered in any house,” they exclaimed.
Griswold and Roe are among the most notable of the cases in which the court plunged into territory the Founding Fathers would have left to the legislature. The most consequential, Baker v. Carr, opened the way for the courts to dive into redistricting.
It was, incidentally, Brennan who wrote up Baker v. Carr. It’s not our purpose here to discuss the merits of Baker, Roe, or Griswold. If the Nine are going to get into this kind of thing, though, how can it be a surprise that the judges of the 50 states are doing the same?
Which brings us back to Mr. Dooley and the political campaigns about which the Times frets. We’re no happier than any other constitutional fundamentalist with the fictional Mr. Dooley’s famous formulation about how the Supreme Court follows the election returns. It’s hard to see, though, what’s wrong with the election returns following the court.