If there is such a thing as a good, grey Republican who purports to be a centrist Judge sticking to precedent but also embracing an occasional incremental changes in the law in the best common-law tradition, that would have been Justice Lewis Powell. He made a name for himself before ascending the woolsack when still in private practice. He wrote a famous – or infamous, if you are of the leftist persuasion — memorandum, outlining what had increasingly gone wrong with the way America was drifting.
Since he viewed the work of “activist” judges as a part of that drift, he devoted a part of his “Powell memorandum” to their work: “American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” It would therefore seem only natural that upon being appointed to the US Supreme Court, Justice Powell would emerge as a voice advancing the court’s conservative positions. Right? Wrong!
The way things turned out, Justice Lewis Powell’s contributions to SCOTUS’ jurisprudence became the mighty pillars of liberal/activist jurisprudence that still support what has become the foundations of modern judicial radicalism.
If you don’t believe me, let’s try a concise stroll through some of those cases. In no particular order:
Agins v. City of Tiburon. Everybody who is into the takings/ripeness mess knows that one; if nothing else this case (though at first affirmed on other grounds) turned out to be so badly decided by the California Supreme Court that SCOTUS eventually had overrule it in First English etc. Church v. County of Los Angeles. Why? Because the California Supreme Court had wrongly decided the core issue presented by Agins – Is the “just compensation” specified in the Fifth Amendment’s Taking Clause payable in regulatory as well as physical takings of private property? The Califrnia courts said “no,” but the correct answer was “yes.” And as if that were not enough, later SCOTUS had to overrule its own Agins holding again in Lingle v. Chevron because its own Agins opinion had been decided on an entirely wrong doctrinal basis – though a taking case, SCOTUS had analyzed it as if it were a substantive due process case. And so Agins had to be overruled not once but twice.
Now, the takings/ripeness mess is before the Court again (in the wretched Knick case that so far has been argued twice, with no indication that their Lordships are on top of the issues created by their own earlier decisions and by Justice Powell’s original “ripeness” excursion).
Bakke v. Regents. That one, as you surely must recall, was the seed from which grew the “affirmative cation” litigational mess that is still a mess and still with us. Why? Though its black letter ruling held that reverse discrimination on the basis of race is unconstitutional, colleges – said the court — could consider race as a “plus” factor in deciding whether to admit a member of a minority race in preference to a white applicant. Needless to say, with a gigantic loophole like that, universities were able to cheat and admit minority applicants in preference to better qualified white ones, leading later to several more racial preference cases with diverse results. And even as I write, Harvard is being sued by a group of Asian applicants who rightly complain that black candidates are given preference in admissions.
If you want to read what I believe is the best commentary on Bakke, do read William Kai-Sheng Wang, The Devil Visits Justice Powell, Los Angeles Lawyer, July 1979, at p. 34. It’s short, insightful and witty – what more could you want?
Then there is good ol’ Roe v. Wade which legalized abortion and thereby launched the equivalent of a low-level civil war that still remains unresolved and – whether you agree with it or not — has poisoned American politics so that no candidates for public office in America can avoid entanglement in vicious controversies over whether they are “pro-life” or “pro-choice,” even though such controversies tend to obscure debate over grave topics like national defense, the economy, foreign policy, and other important aspects of sovereign governance. The New York Times, for example, is still going on about it — see: https://www.nytimes.com/2019/01/21/opinion/roe-wade-abortion.html?em_pos=small&emc=edit_ty_20190122&nl=opinion-today&nl_art=1&nlid=59608749emc%3Dedit_ty_20190122&ref=headline&te=1
So who wrote those opinions that have so destabilized America and have led to the prevailing poisonous public discourse that has driven most good people out of politics? It was Justice Lewis Powell (except for Roe in which he concurred, thus providing the crucial fifth vote to it).
Now tell me about how good centrist-conservative folks like Justice Powell are good for America. Ha! With conservatives like that, who needs radicals?