In 1956 President Eisenhower was busily disassembling what had been gays’ growing DC outpost in the U.S. government. In Los Angeles, U.S. District Judge Thurmond Clarke pointed to a story in which a woman recalls an affair with her college roommate and decides to live with the woman rather than marry her high school boyfriend as “obviously calculated to stimulate the lust of the homosexual reader” of a magazine being barred from the U.S. mail. Clarke concluded:

“The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected” and upheld the Post Office’s decision that the magazine was “non-mailable.”

Enter the Supreme Court of the U.S. [SCOTUS] which expanded the First Amendment “Congress shall make no law … abridging the freedom of speech, or of the press” to include “ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion” (Roth vs. US, June 24, 1957). This change paved the way for all kinds of lifestyles to advertise and grow. Law professor David Cruz said that this decision “facilitated the flourishing of a gay and lesbian culture and a sense of community at a time when the federal government was purging its ranks” of homosexuals.

While no single judge made the decision, William O. Douglas, son of a Presbyterian minister, probably influenced the court’s opinion the most. His libertine personal life and contempt for Americans’ Christianized opinions strongly affected his decisions:

“I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field.”

As a powerful member of society’s elite, he first distanced himself from “theology” – in context, almost certainly Christianity. Religion is often central to how we organize our lives – and Douglas was annoyed by President Eisenhower’s crackdown on sex that Christianity condemned (which would include constant cheating on his wife). Douglas made his proclamation during the 1950’s – the high-water mark of U.S. Christianity. “Our people” were more invested in churches than at any time before, and Douglas belittled not only the beliefs and policies that define Christianity, but what Americans believed about “economics, politics, or any other field.” Although Americans had created the most productive and free country on the planet, Douglas decided he would provide the moral and intellectual compass for them!

Some of his SCOTUS colleagues hired women as secretaries or researchers with whom they were secretly having affairs. Douglas openly had numerous affairs while expounding his "virtue" of not being hypocritical (he ended up with four wives). He lied about his past (he was neither born in poverty nor second in his class at Yale) but served on SCOTUS longer than any other justice [1939-1975] and “wrote the most opinions, issued the most dissents, wrote more books, married more women, endured more divorces, and was threatened with impeachment more often than any other justice before or since” (Seattle Times 3/9/2003). Often cited as the most liberal justice in SCOTUS’ history, he:

• supported Red China (leading Gerald Ford to call for his impeachment); and

• argued that natural objects “about to be despoiled, defaced, or invaded by roads and bulldozers” should have the right to sue, extending "agency" to rocks and trees.

Douglas’ sex life had plenty of room for contraceptives (and possibly abortion). As is common among those who openly violate their marital vows, Douglas harbored egalitarian leanings and asserted the moral high ground by not being hypocritical. A dishonorable Judge, controlled by his zipper, he "discovered" the Constitution protected him from Christian moral standards and eagerly extended that protection to all. A brilliant writer, he persuaded his colleagues to protect adults with almost every sexual taste. In 1965, Douglas sensed “penumbras” which “emanated” from the Constitution, leading to Griswold v. Connecticut (marital sex was too private to have to abide by state contraception laws). This marital "right to privacy" led to Eisenstadt v. Baird (sexual activities of the unmarried are as private and therefore as Constitutionally protected from contraception laws), Roe v. Wade (abortion is a private decision by the mother-to-be, and thus her fundamental right), Douglas wanted to give natural objects the right to sue, extending "agency" to rocks and trees. Yet, the fierceness of his rejection of Christianity was displayed by his denial of any fetal rights if they were about to be killed by abortifacients or surgical tools. Rocks and fetuses are unable to speak for themselves, but the fetuses, being alive, would seem to have more of a case.

He did not raise this possibility in Rove v Wade, however; Lawrence v. Texas (homosexual sex, even in a public toilet, is as much a private decision as normal sexual choices), and Obergefell v Hodges (homosexual partners have a right to marriage and its benefits since they want them). He was politically powerful (as a poker-playing friend of FDR who, in his declining health, recommended Douglas or Truman as be his next VP to Democrat leaders). As he was a member of SCOTUS, an institution arrogating "the final word" to itself, society is indeed fortunate that he did not fancy sex with children, use illegal drugs, or worship rocks.

A judge can either apply the strict text of the Constitution or his interpretation of the "essence" of the Constitution. Douglas liberally relied on his own interpretations, and evangelized SCOTUS to de-Christianize sexual laws. SCOTUS responded by diminishing the ideal of confining sex to marriage and blessing homosexual expression. Douglas popularized prioritizing "essences, penumbras, and emanations" for succeeding SCOTUS judges. Some sense of the "essence" of the Constitution is necessary when applied to an issue upon which the Constitution is silent, but the temptation to "find" your opinions about what should be in the document is strong – especially if you hold SCOTUS as superior to the Constitution’s political players.

Common opinion holds that those who flaunt their adultery are less trustworthy. We know that adultery often occurs, but appreciate the value of people maintaining presumed fidelity by staying married, thus buttressing the standard that marriage should be forever. None of Douglas’ biographers mention his involvement in homosexuality, so while he was among the first to support gay rights, it seems likely this came from his generally libertine leanings (although many who go wild with women, give homosexuality a tumble – just in case they have missed something). Douglas’ influence over the U.S. as a member of SCOTUS far exceeded what he could have likely accomplished with legislation through Congress.

No one is perfect. But leaders in open rebellion against conservative (or Christianized) sexual customs or laws are dangerous, because they willingly offer a devious model for others to follow. While politicians often violate sexual propriety, they risk being rejected by the voters if they do so openly (although voters sometimes choose to overlook their failures to defeat the opposition). Because leaders are often imitated, Douglas knowingly harmed society by extolling his actions. Of course, those who follow the customs un-hypocritically are the most virtuous. But as we all sin, it is better to hide departures from the ideal, so others will not be led astray (e.g., hypocrisy is the tribute vice pays to virtue).

As it turned out, two womanizers – a young lawyer from Los Angeles and Justice Douglas, both multiply married and knowing little about the effects of homosexuality on society, had much to do with freeing homosexuality from illegality and making it "respectable."

How can we make knaves on SCOTUS less powerful?

Currently, the power of SCOTUS is either absolute (e.g., as Justice Jackson said in Trump v CASA; and Chief Justice Roberts has seemingly claimed several times this year) or somewhat less than absolute (e.g., as Justice Barrett and five other Justices said in Trump v CASA). Lawyers are already claiming to know how to use class-action suits to circumvent the ruling.

Libertines are scattered throughout society. Their influence might be moderated by politicizing their governmental roles – in this case judicial. While politicians may be far from the Christian (or perhaps any other) ideal, they must play to the electorate. If voted into SCOTUS, the electorate gains responsibility for those they put on (or take off) the court, and has less reason to complain about being dictated to by a majority of nine lawyers. Americans already believe SCOTUS is politicized (e.g., the June 15 Reuters poll revealed 20% of Americans consider SCOTUS politically neutral, while 58% said it is not – that is, respondents by a 3:1 margin already consider SCOTUS political). Trump v CASA is a big deal because it takes a step toward limiting the power of the judicial branch (at least the district court judges). While it does not explicitly outline the limits of SCOTUS’ power, the press indicates it grants even more power to the president. But on July 10, however, District Judge Laplante allowed a class action lawsuit to halt Trump’s deportations, so Trump v CASA may not prove as powerful as depicted by the media.

Justice Barrett made the news with:

“JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary,” “She offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.” Barrett further asserted that Jackson’s view—that a single district judge’s interpretation of the law should bind the entire executive branch—has “no grounding in doctrine or constitutional history.”

As pointed out in the last column, both Jefferson and Lincoln chaffed under SCOTUS which they seemed to think considered itself their superior. Whether you like her politics or not, Jackson is an accomplished person, smart, edited the Harvard Law Review, etc. She wrote:

“The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law. …what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law…In a constitutional Republic such as ours, a federal court has the power to order the Executive to follow the law—and it must. … Indeed, it is precisely because the law constrains the Government in our system that the Judiciary’s assignment is so broad, per the Constitution. … But the Court now requires judges to look the other way after finding that the Executive is violating the law, shamefully permitting unlawful conduct to continue unabated.”

The Constitution, according to Jackson and many others, has an "essence" that requires what she says above. Are the lawyers claiming they can "break" Trump with class action suits, correct? Is the majority that issued Trump v CASA, correct? The Constitution is short – can you find either Jackson’s or Barrett’s claims there?

Why should a society that claims to respect the will of the people allow SCOTUS to do whatever it wants? Let SCOTUS be subject to votes of the people as now happens with Senators. Before the 17th Amendment was ratified in 1913, Senators had been chosen by their state legislatures. The 17th Amendment seems to have reduced the amount of corruption when only state legislatures were involved. Representative government is far from perfect, but every voter can at least have a say. Set the term of service for 8, 10, or 12 years – who knows what is best? Allow SCOTUS judges to stand for re-election. What Barrett (another smart, accomplished person) said about Jackson could be true, but cannot be proven (ask Jackson). Since Americans already consider it partisan, it probably cannot be made worse if it must consider the electorate when it makes decisions. Put SCOTUS under the electoral gun.