The Mythical Age of Liberalism in the Courts

Turn on any random right-wing talking head, and you're bound to soon hear complaints about "activist" courts and "liberal" judges. I've discussed how claims of "judicial activism" are nonsensical. And they are. But there are liberal judges to rail against, right? Judges who are "soft on crime" and so forth? Well, that's the thing. I really don't think there are. Not anymore. And it did not hit me just how true that is until I came across a case while researching another issue. It was a Michigan Supreme Court Case from 1971.

After reading the decision, my jaw dropped. I could not believe I was reading it. It was the sort of thing you'd expect right-wingnuts to rail against. Except that it was real, rather than imagined. It was an actual reversal of a conviction, something rarer than rare today. And it wasn't just the reversal that was remarkable, but the reasons for it. I still have trouble believing that it was a real case decided by real judges. While there are nominally two (soon to be three next week) progressive justices on the Michigan Supreme Court, I have difficulty imagining even one of them writing such an opinion as a minority dissent.

What did the decision do? Well, for starters, it found one of Michigan's anti-marijuana laws on the books at the time unconstitutional. And the reason it was found so was because the law classified Marijuana as a narcotic when it clearly is not. In other words, the court refused to let politicians alter reality to put someone in prison. Contrast this to today's court, which not only allows Marijana to be classified as schedule I, despite all scientific evidence that shows that it simply cannot qualify as such under the criteria used to qualify for schedule I, but they added a harmless, non-mind-altering metabolic byproduct of THC as a schedule I drug, something not even the draconian Feds have done.

The 1971 court did not stop with finding that one law unconstitutional. Another issue was entrapment. The sale of drugs to undercover police in this case was clearly entrapment - they badgered the defendant into selling his personal stash. The prosecutor argued that the conviction was still good for possession because even if the sale was caused by entrapment, the defendant's prior possession was done all on his own. Today's court would buy that easily. But in 1971, the court killed that by noting that the police never would have had evidence of possession if not for the entrapment, and threw out those charges as well.

Anyone who listens to right-wing talk radio might think this is an everyday occurence - and maybe in 1971 it wasn't so rare, but today? It simply does not happen. Not ever. Because the liberal judges the right rails about have not been in office for 30 years. They are railing against an almost mythical past. It doesn't exist. Not today. It isn't just that there are more conservatives on the court, it is that there really are no liberals anymore. The range goes from center-left (at most) to extreme right, with the "middle" somewhere well to the right.

Truly I wish the right-wingnuts were right, that there really were such judges out there - that would give me some hope for sane court rulings. But at least in Michigan, such judges exist in an almost-mythical past. For a brief moment, I got to visit that time, reading that opinion. It still doesn't seem real to me. (If anyone is interested, I can dig up the citation for the case - I'm not sure it is available online without a paid subscription since it is older than the cases Michigan has online for free).

What gives me some small hope is that the left has FINALLY started to build a counter to the right-wing machine that has been feeding judges into the system now for over 30 years, transforming the judiciary completely into a right-wing stronghold. The left pretty much sat back and did nothing to counter this. Clinton certainly did nothing to help transform the courts back in the other direction - he made mostly moderate appointments, which simply cannot counter the far-right appointments of the GOP. The GOP founded the Federalist Society for this. The left has now, as of 2001, founded the Amercian Constitution Society. It remains to be seen if it will be even 1/10th as effective as the Federalist Society, but it is a start. (Thanks to Ed for apprising me of the ACS - maybe I should have known about it already, as I am a lawyer, but I guess it just shows that the left has a long way to go if even a lawyer like me has never heard of the ACS until now). It may be a good sign that the ACS is plugged in to the Obama administration. Now we just have to see what happens over the next 4 (or hopefully 8 or more) years.