Justice William J. Brennan, Jr. led the Warren Court revolution and it for years thereafter. If a great man is one who leaves his mark upon the social order, Brennan, who retired from the Supreme Court last year, is a very great man indeed. But was he a great judge?
Our system contemplates that the power to govern shall be diffused and also limited both by law and by broad-based electoral accountability. This is manifest in federalism, the separation of powers, the rule of law, and the consent of the governed. Judicial activism is so alien to those principles and our folklore that no Supreme Court Justice has ever tried in public to justify it. Nor has any Justice ever proclaimed or admitted in public that he was an activist. On the contrary, judicial aggressors trumpet their innocence. For example, in Miranda v. Arizona (1966), Chief Justice Earl Warren announced: “We start . . . with the premise that our holding is not an innovation. . . .” Why the claim of innocence, if no offense was contemplated? Yet the upshot of Miranda was a new constitutional rule that a confession is not acceptable unless the confessor had been “warned,” i.e., advised of his rights and risks. Similarly, in Gideon v. Wainwright (1963), Justice Hugo Black pretended that Powell v. Alabama (1932) had long before established a general right to appointed counsel. And in Griswold v. Connecticut (1965), Justice William O. Douglas claimed that the use of contraceptives was sanctioned by “emanations” from an 18th-century Bill of Rights somehow made applicable to the states by a fair-trial provision in a Reconstruction amendment.
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