Today in Supreme Court History

Today in Supreme Court History: July 20, 1990

|The Volokh Conspiracy |

7/20/1990: Justice William Brennan resigns.

Justice William Brennan

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  1. One of the great coalition builders. Thanks to him the Court, which by 1990 was almost all conservatives, was still coming out with unexpectedly liberal decisions.

    1. Interesting confession, and I bet you are blind to your own hypocrisy. Let’s invert that and see what you think.

      One of the great coalition builders. Thanks to him the Court, which by 1990 was almost all progressives, was still coming out with unexpectedly conservative decisions.

      1. I don’t think in the post-WWII age, as the right and left have become defined this these times, we ever had a conservative court. The court of the 60’s and 70’s was certainly liberal. Most of the right-ward shift of the court in the 80’s and 90’s was more centrist. Even after that and up to this day, it is still a very centrist court.

        The left would sure like it to be an activist body like it was in the 70’s, but the court still does the dirty work for the left when it counts. (Bostock anyone…)

        1. Boy, are you going to hate America’s future (at least as much as you disdain the most recent five or six decades of American progress, and modern America in general).

          If Democrats enlarge the Court, should we expect your head to explode?

          1. If they really think that is going to be what this country needs, then I say let them make the case.

        2. Of the five most conservative justices since 1937, four are on the Court today.

          1. Those sorts of claims are based on some really questionable data science.

            E.g., the New Deal court decided Korematsu. They refused to extend the exclusionary rule to the states. They operated under the Brown v. Mississippi standard for coerced confessions which basically made it impossible to regulate police interrogations. They wouldn’t have dared rule that women are a semi-suspect class, let along gays and lesbians.

            And, of course, they were ridiculously underprotective of the First Amendment compared to modern justices.

            I am definitely not an Alito or Thomas fan. But there are still all sorts of ways in which they are more liberal than the justices of the 1930’s, as well as other ways they are more conservative. And this is why the qualitative judgments of lawyers are worth a lot more than data scientists’ counting of cases. Data science really has almost no place in analyzing the evolution of the common law.

            1. I don’t think you can apply the labels “conservative” or “liberal” to any decision of the Supreme Court prior to 1946. Even then you might get well into the 60’s before those were clearly defined.

              Incorporation of the Bill of Rights was rejected by many a member of the Court until the 1960’s. Now it is almost universally accepted among the left and right. The court has even expanded incorporation in the last 10 years.

              Even in the heat of the 1960’s the majority of the Court were hardly free speech absolutists. That is why it took until the 1970’s until the jurisprudence started to actually make sense especially in areas such as obscenity. Now free speech absolutism (or the closest you will get to the legal reality) is a universal among jurists.

              The exclusionary rule is an outlier. Really a judicially created remedy to combat what was, at the time, abhorrent police practices at mostly the state level. Letting the criminal go because the constable bungled was always a tough sell to the public and I don’t even think when Mapp crafted the rule it was meant to be anything but “temporary” in nature. I am sort of amazed that you can still find courts readily applying it in 2020. Constitutional law is a horrible way to change public practice, but the court, for some time, thought it had the moral impetus to do so. And it did move the needle somewhat. Just now we are dealing with the aftermath (or hangover) of that.

              1. I disagree a bit about the exclusionary rule, but you are right about the rest of it- that it is very difficult to compare ideologies of different eras. And that’s why some statistics buff coming in and saying “I proved it, 4 of the most conservative justices of the last 80 years are on the Court now” is just a really silly exercise.

                1. It wasn’t “a statistics buff” coming to that conclusion, it was Judge Posner. His paper is at
                  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1126403

                  1. In many ways, Posner doing it makes it worse, both because he knows better (is he liberal or conservative?) and because he isn’t actually a data scientist.

                    I will flatly state- there’s no way to measure whether justices 80 years ago were more liberal or more conservative than modern justices. The issues are completely different and the common law has evolved.

                    1. Justices can be measured against the prevailing sensibilities of the American public. Before 1937 they were to the right of it. For a while in the 1950’s and 1960’s, they were a little to the left. Since then, they’ve been very much to the right. There’s no doubt that the current crop is more conservative than the American people as a whole.

  2. Brennan resigned? Now we’re screwed.

  3. I remember when the old liberals were getting off the court in the 80’s and 90’s. The left was going apeshit because they thought “the revolution” was over. Reagan and Bush were going to stack the court with these Federalist Society judges who were going to ignore the constitution and overrule all the cases of the 60’s and 70’s. Too bad Republicans were largely incompetent to appoint judge who would have done just that. Instead we got Souter.

  4. I bet you are blind to your own hypocrisy. Let’s invert that and see what you think.Hindi-Shayari

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