Legacy of illegitimacy
David Brooks got some significant attention in the New York Times the other day with his thought provoking column on Roe v Wade's lasting impact and the damage it has done to both our political system and our judiciary.
His basic premise, as highlighted in the introductory paragraphs is as follows:
Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.
When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that's always existed on this issue. These legislative compromises wouldn't have pleased everyone, but would have been regarded as legitimate.
While the damage Blackmun wrought through the Roe decision may be true, as David Bernstein points out today (though in not so many word), the individual who caused the most damage to our government in the 20th century was actually F.D.R.
FDR managed to appoint a group of Justices who lacked much intellectual independence, at least on New Deal issues, see, e.g., Wickard v. Filburn (unanimously upholding a law that would likely have been easily invalidated under the Commerce Clause a decade earlier)
Wickard v. Filburn, more than any other Supreme Court decision, dramatically change the course of this nation. It is the single greatest expansion of the commerce clause, and therefore the power of the federal government, that has yet to occur and represents the culmination of FDR’s threats to pack the court with his supporters. While he ultimately failed, he nevertheless frightened the judiciary enough into ultimately achieving his vision and single handedly reshaping the face of America (of course, being elected to four terms also helped).
I wonder what the liberals would say now if Bush proposed FDRs Court Packing Bill?
In any event, the monumental nature of Wickard v. Filburn - and its cosmic shift from the historic and precedential norms - acts in my opinion to undermine the credibility of nearly everything the federal government has accomplished since its decision. Indeed, I think for a federal program to really be considered legitimate one has to ask the question - how would the pre Wickard court decide the case.