‘The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom’

The Politically Incorrect Guides and allied groups have always been critical of an activist Supreme Court, preferring that the Constitution be viewed as a means of preserving the power of those groups whom pre-Communist Manifesto philosophy thought legitimate participants in politics. They frequently criticise the Supreme Court, especially during the final two-thirds of the twentieth century, for legislating from the bench rather than interpreting the law.

Robert A. Levy in 2008 produced a book titled The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. In strictly chronological order, the cases are:

1. Home Building and Loan Association v. Blaisdell (1934)
2. Helvering v. Davis (1937)
3. United States v. Carolene Products (1938)
4. United States v. Miller (1939)
5. Wickard v. Filburn (1942)
6. Korematsu v. United States (1944)
7. Penn Central Transport v. New York City (1978)
8. Bennis v. Michigan (1996)
9. Whitman v. American Trucking Association (2001)
10. McConnell v. Federal Election Commission (2003)
11. Grutter v. Bollinger (2003)
12. Kelo v. City of New London (2005)

It’s interesting that this list is not the stereotypical list of the PIGs, although it is even narrower in its focus, with a 50—50 split between New Deal cases and very modern ones. The Warren Court, criticised by the Republican Party of today for its judicial activism, is entirely absent, although Berman v. Parker from the same year as and overshadowed by Brown v. Board of Education, paved the way for case #12 by ruling that private property could be taken for public purposes.

Dissecting and Understanding ‘Citizens United and Conservative Judicial Activism’ – step by step

Ever since I read Stephen F. Hayward’s The Politically Incorrect Guide to the Presidents: From Wilson to Obama, the politics behind the United States Supreme Court has been of interest to me, because of that book’s focus on Court appointments.

My mother and brother have said that “originalist” judges praised by that name and word in The Politically Incorrect Guide to the Presidents are simply tools of the Catholic Church, the Republican Party, and super-rich businessmen and bankers. More scholarly writings I have read over the past four years suggest that this may be the case.

This morning, after waking up at 10:00, I read an article from the University of Illinois Law Review by Geoffrey R. Stone titled ‘Citizens United and Conservative Judicial Activism’ (in reference to the 2010 decision Citizens United v. Federal Election Commission, which struck down Bill Clinton’s Bipartisan Campaign Reform Act of 1999. Stone argues that the conservative majority in the Roberts and Rehnquist Courts is not motivated by originalism nor by judicial restraint, but by an ideology of unfettered capitalism identical or similar to that of the Politically Incorrect Guides.

Stone says that ever since the 1990 decision Austin v. Michigan State Chamber of Commerce, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy always viewed corporations, including for-profit corporations as possessing the same First Amendment rights as individuals. Stone argues that this led them and Bush junior appointees Roberts and Alito to:

“eschew the narrow grounds of decision available to them, even those suggested by Citizens United itself, and actually order the parties to file briefs on the much broader and more controversial question of whether Austin and McConnell [v. Federal Election Commission] should be overruled”

The Politically Incorrect Guides argue that the First Amendment provides equal rights for freedom of speech, assembly, or the press and that this cannot exclude corporations. Socialists argue that the First Amendment and Bill of Rights constituted efforts to restrain protest against a highly undemocratic Constitution.

However, Stone argues that:

“on such questions as the constitutionality of affirmative action, regulations of commercial advertising, gun control laws, and campaign finance regulation, judicial restraint would lead to politically “liberal” results, and judicial activism would produce politically “conservative” results.”

The trouble with Stone’s argument here is that it is easy to observe that, at face value, the Second Amendment forbids restrictions upon gun ownership in any form. If “the right to keep and bear arms shall never be infringed” is taken literally, that means minimally that restrictions on gun ownership cannot be constitutional, although other laws, such as compulsory registration of guns, certainly do remain constitutional under a restrained view of the Second Amendment. As for commercial advertising or campaign finance regulation, there is nothing in the Constitution mentioning them, so it is natural that from the perspective of the Politically Incorrect Guides, they are completely protected and judges can never strike them down per se. Affirmative action is an even more obvious error: Stone cannot see that it strikes down freedom of association almost by definition. It is true that laws allowing racially restrictive covenants, which the little-known Corrigan v. Buckley case from 1926 legitimised when done by private citizens or organisations, do contradict equality of rights from a judicially restrained perspective. Between 1880 and 1940, judges certainly did narrow the Fourteenth Amendment beyond what it says at face value. This is likely because it – and even more the Fifteenth Amendment and 1960s civil rights legislation – were (and still are) viewed by the great majority of white Americans as elitist reforms by Northeastern lawmakers and their allies. This is the topic of Heather Cox Richardson’s How the South Won the Civil War: Oligarchy, Democracy, and the Continuing Fight for the Soul of America.

What Stone does not understand when he says

“The Framers of our Constitution wrestled with the problem of how to cabin the dangers of overbearing and intolerant majorities.”

is that – like all philosophers before The Communist Manifesto – the Founders viewed the urban population who have constituted a majority since the 1920 Census as ipso facto overbearing. The Founders viewed large cities as necessarily opposed to liberty because they would take wealth from smaller tighly-knit communities to fund their expensive services, as discussed by Jonathan A. Rodden in his 2011 ‘The Long Shadow of the Industrial Revolution: Political Geography and the Representation of the Left’.

A limited suffrage that excludes urban populations who own negligible land, women and for some theorists people of color, was universally accepted when the Constitution was written, although in the highly rural United States this allowed a broad male suffrage. It is natural that the Republican Party, who represents almost precisely that section of the population who were enfranchised when the Constitution was written, desires laws restricting voting rights, abortion, taxation, limits to campaign funds, public welfare, gun control and so on. Stone is right that such decisions do not sit well with the majority, but he does not understand that the urban majority of today’s American population is precisely that section against whom the Founders desired antimajoritarian decisions. That rigid sundown laws have excluded blacks, and lack of economic opportunity other nonwhites, from almost all of rural America outside the plantation South where blacks were disenfranchised until the late 1960s, is an extremely problematic issue by any account, but what the solution would be under “judicial restraint” is not perfectly clear.

What the conservative Justices want to do is to cement Republican power, and the Constitution as understood by the Framers and according to the political values that prevailed at that time allows them to do such, for the simple reason that suffrage laws of the eighteenth century match so perfectly with modern voter demographics.

‘30 fascinating early bands from future music legends’

As I was opening a Firefox window this afternoon, I discovered that Rolling Stone had put out a list of “30 fascinating early bands from future music legends”:

1. Bruce Springsteen’s Sixties Garage Band The Castiles
2. Elton John’s Sixties R & B Group Bluesology
3. Madonna’s Post-Punk Band Emmy
4. Eddie Vedder’s Eighties Alt-Rock Band Bad Radio
5. Billy Joel’s Wild Heavy-Metal Duo Attila
6. Stevie Nicks and Lindsey Buckingham’s Psychedelic Rock Band Fritz
7. Simon and Garfunkel’s Teen Harmony Duo Tom and Jerry
8. Dave Grohl’s Adolescent Punk Band Dain Bramage
9. Robert Plant and John Bonham’s Psychedelic Sixties Outfit Band of Joy
10. Radiohead Members’ Sax-Driven Collective On a Friday
11. David Bowie’s Sixties Mod Group The Lower Third
12. Chester Bennington’s Nineties Alt-Rock Crew Grey Daze
13. Neil Young and Rick James’ Motown Pop Band The Mynah Birds
14. Steven Tyler’s Sixties Pop Group The Chain Reaction
15. Alice Cooper’s High-School Beatles Parody Act
16. Grace Slick’s Sly Stone–Produced Experimental Rock Band The Great Society
17. Michael Bolton’s Hard-Rocking Hair Band Black Jack
18. Iggy Pop’s High-School Garage Band The Iguanas
19. Duane and Gregg Allman’s Ill-Fated Psychedelic Soul Outfit The Hour Glass
20. Brian May and Roger Taylor’s Sixties Power Trio Smile
21. Future Doors Members’ Surf-Rock Band Rick and the Ravens
22. Debbie Harry’s Sixties Psych-Folk Group The Wind in the Willows
23. Ronnie James Dio’s Dreamy Fifties Pop Group The Vegas Kings
24. Dusty Springfield’s Early-Sixties “Family” Folk Trio The Springfields
25. Peter Frampton’s Teen-Idol Pop Group The Herd
26. Lemmy’s Costumed Sixties Band The Rocking Vickers
27. Bon Scott’s Australian Teen-Pop Band The Valentines
28. Carole King’s Progressive Folk Trio The City
29. Sammy Hagar’s Sunshine-Pop Duo Samson and Hagar
30. The Cars’ Ric Ocasek and Benjamin Orr’s Mellow Early-Seventies Trio Milkwood

I had heard of quite a few of these, though I have not listened to any. The ones completely new to me are:

• The Castiles (#1)
  
• Emmy (#3)
  
• Bad Radio (#4)
• Fritz (#6)
• Tom and Jerry (#7)
• Dain Bramage (#8)
• Band of Joy (#9)
• The Lower Third (#11)
• Grey Daze (#12, although I did not know the name and my main recollection of Linkin Park is hearing them called “stinking park” by a critic)
• The Mynah Birds (#13)
• The Chain Reactions (#14)
• The Hour Glass (#19)
• Smile (#20)
• The Vegas Kings (#23)
• The Springfield (#24)
• The Herd (#25)
• The Rocking Vickers (#26)
• The City (#28)
• Samson and Hagar (#29)

None of these seem of real interest to me, but that these musicians played in bands earlier than they did actually is.

“Tax grade”?

When I first read Stephen F. Hayward’s The Politically Incorrect Guide to the Presidents: From Wilson to Obama, I loved memorising the “constitutional grades” Hayward gave to each President. Although I could sniff out bias in them at a very early stage, I still was interested to see the rationale behind Hayward’s grade for each President.

Despite finding them interesting, I always saw anomalies even when the AABWCT (academia are biased, we’ll correct them) surface message was replaced by BACVR (be a Catholic, vote Republican) as the underlying morale of the Politically Incorrect Guides:

1. Why was Truman given a much higher grade than other Democrats except Kennedy?
2. Why was Coolidge given the highest grade if his Supreme Court appointment was so liberal?
3. Why was Ford given a relatively good ranking if his Supreme Court nomination was so liberal?

My brother said after a full digestion of the grades in conversation that the concern of Hayward is not with the Constitution at all. In my brother’s opinion, Hayward’s “constitutional grade” should be renamed “tax grade” – he believed and believes that the purpose of the PIGs is simply to encourage Americans to accept the complete elimination of income taxes on the super-rich – and that every grade offered by Hayward simply reflects partisanship and tax policy. The F grades given to every Democrat since Lyndon Johnson reflect the fact that the PIGs view civil rights as:

• illegitimate laws legislated by a liberal Northeastern elite with no popular white support
  
• contrary to natural law that differentiates between the races
• the source of social conflict between the races
  

President	Grade	Hayward’s interpretation	My brother’s interpretation
Woodrow Wilson	F	“The McReynolds appointment notwithstanding, between Wilson’s direct attack on the constitutional philosophy of the Framers and his appointment of Brandeis and Clarke, he deserves an F grade.”	“Wilson’s was a Democrat who used the Sixteenth Amendment to tax the very rich, and his rapid increase of this tax during World War I to over 70 percent, gives him a tax grade of F.”
Warren G. Harding	B+	“For the excellence of his Supreme Court nominations and the respect for the Constitution demonstrated by his conduct in office, Harding deserves a high grade as president. Countervailing factors – his lack of a deep constitutional philosophy, his proposal to amend the Constitution to create a six-year presidential term, the boost he gave Herbert Hoover’s career – knock his overall grade down to a B+.”	Harding lowered taxes for the rich from the high levels they had been at during World War I, so that the rich started to be able to get richer than possible under Wilson. He thus receives a B+ tax grade.
Calvin Coolidge	A+	“Despite this one disappointment [his only Supreme Court nomination, liberal Yankee Harlan Fiske Stone], Coolidge still deserves an A+ grade for his principled constitutionalism.”	“Coolidge consistently lowered taxes for the rich and kept them at the lowest level they have been at since the Sixteenth Amendment, so he receives an A+ tax grade”
Herbert Hoover	C-	“Between Hoover’s weak grasp of constitutional principles and his mixed record of Supreme Court appointments, his constitutional grade is a C-.”	“Hoover was an income tax-raising Republican [who raised taxes to attempt to combat the Depression], so his tax grade is C-”
Franklin D. Roosevelt	F	“Between FDR’s radical Progressive views about the principles of the American founding, his court packing scheme, and his left-leaning Supreme Court appointments, it is a shame that he can’t be awarded a constitutional grade lower than F. His counterproductive economic policies and hyper-partisanship are just extra credit.”	“FDR’s rapid increases in taxes on the very rich to fund public works and welfare for the lower classes, and his support of the Communist Russians against the Nazis who protected the wealth of the super-rich, means it is a pity that he cannot be granted a tax grade lower than F.”
Harry S. Truman	C+	“Truman’s Supreme Court appointments seemed to be driven mostly by old-fashioned considerations of political patronage. Neither his judicial appointments nor any of his writings or speeches give much evidence that Truman had any discernable constitutional philosophy. For these reasons he deserves as his constitutional grade a gentleman’s C+.”	“Although Truman was a Democrat, he lowered taxes on the very rich after World War II and was extremely vigorous in his opposition to Communism, so his tax grade is C+.”
Dwight D. Eisenhower	C+	“Eisenhower deserves high marks for general steady leadership in the uncertain postwar decade of the 1950s, for defending the nation ably (one of the most important constitutional responsibilities of the commander in chief), and for sensible modernizations of the office of the president. Above all, Eisenhower’s calm, steady leadership enabled America to settle in for the long haul of the Cold War. As the quiet and calm 1950s gave way to the tumultuous 1960s and demoralizing 1970s, Eisenhower’s presidency started to look pretty good in retrospect. But for his Supreme Court appointments – especially considering the harm Earl Warren and William Brennan did to constitutional government in America – his constitutional grade must be cut down to a C+.”	“Eisenhower was a Republican and hence our ally, and he helped fight Communism under Cold War conditions, but he maintained very high marginal tax rates on the very rich. His tax grade is a C+.
John F. Kennedy	C-	“John F. Kennedy probably put little serious thought into the judicial philosophies of either Goldberg or White, but his accidental pick of White mitigates some of his abuses of executive power, earning him a bump in his constitutional grade to a C-.”	“Although Kennedy was a Democrat, he was a Catholic and he cut taxes on the rich to a small degree, so his tax grade can be raised to a C-”
Lyndon B. Johnson	F	“Between his dreadful Court appointments [Abe Fortas and Thurgood Marshall], his heedless expansion of government bureaucracy and the welfare state, and his duplicity in passing a civil rights law that warped constitutional principles of equality under the law, Johnson’s constitutional grade is an F.”	“Johnson was a Democrat who did the unspeakable sin of providing civil rights for black people who do not deserve such rights. He also greatly increased government spending via the Great Society, thus encouraging inflation and higher taxes, so his tax grade is an F”
Richard Nixon	C+	“Between Nixon’s acquiescence in or even sponsorship of so many constitutionally doubtful expansions of the regulatory statutes – the Endangered Species Act, the creation of OSHA and the EPA – and his botched appointments to the Supreme Court [rejection of Carswell and Haynsworth, liberal nominees Blackmun and Powell], Nixon’s constitutional grade has to be marked down to a C+. If it were not for his abortive attempts to rein in the government in his second term and his vetoes of bad legislation such as the War Powers Act (his veto was overridden), his grade would be even lower.”	“Nixon’s sponsorship of regulation like the Environment Protection Authority and Endangered Species Act that restrict business, and his inability to contain the tax that is inflation, mean that his tax grade is a C+. If he had not tried to rein in spending in his second term, his tax grade would be even lower”
Gerald Ford	C+	“While Ford’s use of the veto against a runaway Congress and his general demeanor in conducting himself in office in the aftermath of the Watergate disaster count strongly in his favor, his appointment of [John Paul] Stevens knocks his constitutional grade down to a C+.”	“Ford was a Republican who failed to lower the tax of inflation, so his tax grade is a C+”
Jimmy Carter	F	“Jimmy Carter is the only president of the twentieth century who did not appoint a single justice to the Supreme Court, so he doesn’t have a legacy in the third branch of government comparable to those of other presidents. He deserves an F grade for his respect and defense of the Constitution, nonetheless, for an unusual reason: his unprecedented and outrageous behavior as an ex-president. Carter does not seem to understand that the nation has only one president at a time. He has consistently undermined his successors in ways both direct and indirect.”	“Carter was a post-Civil Rights Democrat who was always our enemy, so he gets an automatic F.”
Ronald Reagan	A-	“Because of Reagan’s overall record of understanding, articulating, and implementing principled constitutionalism, the two disappointing Supreme Court appointments [Sandra Day O‘Connor, Anthony Kennedy] only lower his constitutional grade to an A-.”	“Reagan was a Republican who was the first to lower taxes on the rich since Calvin Coolidge. He did not lower them nearly enough to maximise wealth to the highest possible extent, but his radical tax cuts give him a tax grade of A-”
George Bush senior	B	“President Bush 41 (as he is often called to distinguish him from his son) deserves credit for a steady hand in conducting foreign policy—which satisfies the president’s most important constitutional duty: defending the nation. His appointment of Clarence Thomas to the Supreme Court is also a very large factor weighing in Bush’s favor. But his major blunder with Souter and his acquiescence in expanding government regulation knock Bush’s constitutional grade down to a straight B.”	“Bush 41 lowered taxes to some extent, but also raised them when he should not have done so, so as he is our ally his tax grade is a straight B”
Bill Clinton	F	“Clinton clearly knew what he was doing when he chose as his Supreme Court nominees justices who would defend and expand the liberal agenda. If there were a lower constitutional grade than F, Clinton would deserve it.”	“Clinton is a Democrat and our enemy whom we tried to defeat in Congress and the Supreme Court for many years. He supported or compromised with civil rights and maintaining taxes on the rich, so his tax grade is an F”
George Bush junior	B+	“For his vigorous defense of the president’s constitutional power to defend the nation against the threat of terrorism and for his two solid Supreme Court appointments [Alito and Roberts], Bush deserves a top grade for presidential performance. But his regrettable signing of the McCain-Feingold bill after saying he thought it was unconstitutional knocks him down half a grade to a B+.”	“Bush junior continued to lower taxes and he is our ally as a Republican. However, his acceptance of the McCain-Feingold bill and his increase on spending in the Middle East knock his tax grade down to a B+”
Barack Obama	F	“Because of his radical constitutional views and aggressive politicization of the judiciary, even Obama’s defense of executive prerogative cannot save him from a constitutional grade of F.”	“Obama is black and a Democrat, so he is our enemy. He stands for those Americans who reject the traditional American values, so regardless of what he does with the economy his tax grade can only be an F”
Donald Trump	≅A		“Because Trump is the ally of true America, and he has cut taxes on the richest individuals dramatically, his tax grade is an A”

Trump was not discussed in the original or the updated Politically Incorrect Guide to the Presidents: From Wilson to Obama. My brother has constantly said that, although Trump does not understand the Constitution and never mentions it except rhetorically, he would receive a very high grade simply for cutting taxes on the very rich.

I would wish for more ability to discuss the issue more precisely, but my brother has never accepted the offer nor wished to do so, except to say that one reason why every post-Civil Rights Act Democrat gets an F is that the writers have memories of them as opponents, which they lack with Truman or even Kennedy.

In the case of Carter, who appointed no Justices to the Supreme Court, my brother was very critical of their argument. It is also strange that although the Politically Incorrect Guide notes Reagan’s record of conservative appointments to lower courts, it says not one word about Carter’s appointments thereto, although Carter made what was then a record number of appellate and district court appointments for a single term (this being due to many new seats being created). Many of Carter’s lower court appointees, notably the long-lived Ninth Circuit pair of Stephen Reinhardt and Harry Pregerson, were extremely liberal compared to lower court appointments of Clinton or Obama who had to deal with Republican Senates for substantial parts of their presidencies. Nor does the Politically Incorrect Guide to the Presidents say anything about lower court appointments of preceding or following presidents, although if they were discussed even briefly it could alter grades if Hayward be true to his word.