Monday, April 14, 2008

I Am So Surprised

I Am So Surprised

Orin Kerr over at Volokh Conspiracy quotes from a memoir of working for former Supreme Court Justice Goldberg that is astonishingly honest:
What was Justice Goldberg like?

He was a wonderful person. Very warm. He treated his law clerks like family. Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result, and you never really asked whether it was just or not. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice.
This explains a lot about Goldberg's historically ignorant concurring opinion in Griswold v. Connecticut (1965), in which Goldberg used the Ninth Amendment, incorporated through the Fourteenth Amendment, to strike down a very stupid law. The problem, of course, is that the Ninth Amendment was a limitation only on the federal government (not the states), and even the privileges and immunities clause was only supposed to impose the first eight amendments on the states.

If you think there's something really neat about a judge using his own personal view of "What is just?" to decide the outcome of a case--consider what would happen in an alternative universe where the Rev. Fred Phelps wasn't disbarred, and ended up on the bench.

It wasn't just that Griswold was wrongly decided (although I can't complain too much about the result in that case)--but that it opened the door to a series of other decisions that were considerably more destructive to constitutional law, such as Roe v. Wade (1973) and Lawrence v. Texas (2003).

No comments:

Post a Comment