:: By David A. Strauss

:: Illustrations by Steve Brodner

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Supreme swings

Standing on the sidelines or jumping into the fray, the Supreme Court has swayed with the times. What’s next on the judicial roller coaster?

The story I want to tell about the United States Supreme Court is a story in three parts, and it begins almost exactly a century ago. It is virtually impossible to understand the dynamics on the Supreme Court now, or the controversy that might surround any justice nominated in the near future, without tracing how lines of thought and trends have developed in the court over the past century.

The story begins at an extraordinary time in American history, as the country was making the transition from an agrarian, rural society to an increasingly urbanized one. It was also a time when immigration to the United States peaked: in the first decade of the 20th century, the rate of immigration relative to the nation’s population was higher than it had ever been before or has been since. The response by state legislatures and, to some degree, Congress was a wave of laws on child labor, maximum hours, minimum wages, and working conditions—laws passed to deal with the newly industrialized society. But for three decades, until the mid-1930s, the Supreme Court set its face against these laws, declaring many of them unconstitutional.

It is not clear exactly why the Supreme Court did this. The more negative view is that the justices were very conservative, establishmentarian people facing an upsurge in new ways of thinking, from the Russian revolution of 1917 to the increasingly popularity of socialism in intellectual circles. Well-established members of the bar, the justices—so the argument goes—were afraid that socialism was coming to the United States and, by golly, they weren’t going to allow it.

There are other, more favorable explanations. One is that the justices thought the new legislation was not so much about the public interest as it was about interest groups, and so should be struck down. Some argue that the justices—men in their 60s, deciding the first of these cases less than 40 years after Appomattox, when the Civil War was in living memory—believed that they were enforcing the free-labor legacy of the Civil War: you were entitled to work on the terms on which you wanted to work. The new laws, in this view, prevented people from enjoying that freedom: people couldn’t work in sweatshops for more than ten hours a day, even if they wanted to. That may sound ridiculous today, but there certainly were immigrants who wanted to work longer hours than the laws allowed. Whatever the reason for the court’s stance, it became increasingly controversial as more and more people concluded that social-welfare and regulatory legislation, of the kind that the Supreme Court was striking down, was needed to deal with the new society that the United States was becoming.

That was the court in the first third of the 20th century, and in important ways those events have conditioned everything that has come since, right down to the current controversies.

That court reached its Waterloo in the 1930s, when it struck down laws Congress enacted as part of Franklin D. Roosevelt’s New Deal. In response Roosevelt openly declared war on the court. He criticized it, and he tried to pack it, asking Congress to pass a law that would allow him to appoint additional justices so that he could reverse the majority on what was then a closely divided court.

Roosevelt did not succeed, even though he was at the height of his popularity and the court was immensely unpopular. The perception was that the court was preventing Roosevelt and Congress from responding to the Depression. Even under those circumstances, Congress wouldn’t go along with packing the court. But somehow the justices found a way to reverse course. Did they do it because Roosevelt had intimidated them? Did they just change their minds? There is even an argument, advanced by some historians, that the justices didn’t reverse themselves but merely followed the natural evolution of their constitutional principles. Whatever the reason, the court in the late-1930s stopped invalidating social-welfare and regulatory legislation.

As justices left the court, Roosevelt was able to appoint almost an entirely new court, and he deliberately went about selecting people who would not repeat the mistakes of the old court. That was an explicit and overt strategy; he did not use stealth nominees. He said he thought it was an abuse for the Supreme Court to strike down social-welfare legislation, and he would make sure that he would appoint justices who did not. That was his agenda, and he succeeded completely.

What Roosevelt’s success gave rise to, and here we can see precursors of today’s debates, was the view that the proper role of the courts in a democracy is to do very little. The country should be run by elected officials, and the courts have no business interfering with the major issues of the day. Those are left to Congress, the Executive Branch, and the states to decide. From the mid-1930s to the 1960s, to be a judicial conservative meant that you thought the court should keep its nose out of important issues. Instead, its role was to deal with relatively technical legal subjects. If there was a question about how a law passed by Congress should be interpreted, the court would decide. If a law was irrational, the court could declare it un-constitutional. But when it came to the momentous, society-dividing issues, it should stay out of the picture.

That was the definition of judicial conservatism in the aftermath of the New Deal, and that was the kind of judge Roosevelt wanted—at least so far as his legislative program was concerned. But beginning in the late 1940s and through the 1950s, new issues emerged. When that happened, the justices Roosevelt appointed—who were all in agreement about the New Deal—divided, at least to somedegree, in their views on these new issues.

One such issue, in response to the McCarthy period, was civil liberties; the other, overwhelming issue was race. In various forms the issue of racial segregation and discrimination against African Americans was the dominant item on the Supreme Court’s agenda beginning in the late 1940s and continuing through the 1960s.

On civil liberties, the Roosevelt appointees split. Some justices thought the question was whether the government was doing the right things to try to root out the Communist threat, and they argued it was the sort of big issue that judges should stay out of. That, they said, was precisely the lesson that the court learned from the unhappy events of the first third of the century. But other Roosevelt appointees said that the lesson was something different: to stay out of issues when—but only when—those issues are best dealt with by the political process. According to this view, questions of civil liberties and the right to dissent are different from the issues that the pre–New Deal Court wrongly decided. Civil-liberties issues aren’t issues of who gets what slice of the pie or how you regulate the workplace. They’re issues about the repression of minorities and dissenters. And, these justices said, you can’t trust the majority to decide whether the minority gets to speak. You can’t trust the democratic process to decide if people get to criticize the government because that’s putting people in charge of whether they themselves can be criticized. That, according to these justices, was why the courts exist. Eventually, the latter group—the group that urged the court to get involved—prevailed over those who said the court should stay out.

On race the story was somewhat the same, but there was much less disagreement. By the mid-1950s the Supreme Court was, after some difficult negotiations, united in saying that the system of racial segregation in the South was unconstitutional and had to be uprooted. The logic was the same: this was an issue on which the majority was oppressing a minority, and legislatures or executives elected by a majority cannot be trusted to solve such a problem.

So by the late 1950s, the dominant approach on the Supreme Court had changed from what it was in the immediate wake of the New Deal. It was no longer that courts should stay away from important issues. Instead, the dominant view was that courts should stay away unless there was reason to think that the usual democratic processes couldn’t handle the issue. This thinking underlay the court’s activism from the 1950s through the 1960s, when the court, led by Chief Justice Earl Warren, made a number of decisions that aroused a great deal of controversy in the areas of racial segregation, free speech, and criminal procedure.

The Warren Court’s expansion of criminal suspects’ rights was, in many ways, part of the court’s campaign against racial discrimination. Many of the abuses of the criminal-justice system that the court acted against, in decisions that eventually gave rise to things like the famous Miranda warning (“You have the right to remain silent...”), came out of the South, and the justices saw that the criminal-justice system was being used as a system of racial oppression. The court did not confine its rulings to the South, but the problems were especially virulent there, and they led the justices to conclude that they should change the way the police did their job throughout the nation. And they did.

This new approach to the role of the court—that its job was to stand aside when the democratic process was functioning well, but to step in when the issue was one that the democratic process could not be trusted to handle, for example because it involved the rights of minorities—led to intensely controversial decisions on matters of racial discrimination, criminal suspects’ rights, and freedom of speech. It also led to the Warren Court’s ruling, enormously controversial at the time, that states could not mandate prayer in public schools. Condemnation of the Supreme Court was never as widespread during the Warren era as it had been during the New Deal, but parts of the country were very unhappy with the court.

The final part of the story begins with the election of 1968, won by Richard Nixon. Nixon ran against the Warren Court, mostly on criminal-justice issues but also on race issues. In his campaign he promised to appoint judges who would stay out of controversial issues and let the “peace forces,” as he called them, restore law and order, and judges who would not go so far so fast on desegregation. Nixon didn’t have long to wait to make good on his promise: in the first term of his presidency he had four appointments, enough to turn around the court in a few years. One of his appointments was William Rehnquist, who joined the court in 1971 and who is, of course, still on the court and still very influential.

When these Nixon appointees joined the court, their official position was the post–New Deal conservative position: society should be run by the people who are elected, not the judges. The Warren Court has been doing too much running of society, they said, and it was time to get the court back on the sidelines. Over time, however, two things happened. One was that the Warren Court’s projects turned out to be pretty successful. No one today thinks schools should be segregated. Almost everyone thinks that Brown v. Board of Education, the 1954 decision ordering school desegregation, was a high point in the history of the court and American law. Things like the Miranda warnings have become part of the culture. Indeed the Supreme Court, including Nixon appointees—even in an opinion written by now Chief Justice Rehnquist—has said just that: Miranda has been accepted, police have incorporated it into their practices, it’s a settled part of constitutional law. No justices think that prayer should be required in the schools. And other once-controversial Warren Court initiatives have come to be seen as sensible and successful.

The second thing that happened was that as people of a more conservative persuasion were appointed to the court, the idea that courts should stay out of things became less attractive, and judicial activism became more attractive. The combination of the Warren Court’s successes and the court’s moral capital as the only branch of government that would take on racial segregation gave the court an aura of legitimacy that today’s justices, consciously or unconsciously, are capitalizing on, using the power and legitimacy of the Supreme Court in the service of quite different ends.

The most controversial decision of the post-Warren era was, of course, Roe v. Wade, which was almost an accidental decision on the part of the court. A few years earlier the court had struck down a Connecticut law that—believe it or not—made it a crime for anyone in that state, married or unmarried, to use contraceptives. The Supreme Court essentially said that the law cannot tell married people they can’t use contraceptives; that’s unconstitutional as well as ridiculous. Interestingly enough, although it sounds as if such a law should be unconstitutional, it’s not easy to find a provision in the Constitution that makes it so; the court did some pretty creative work with the language of the Constitution to reach that conclusion.

Overturning the Connecticut statute was not particularly controversial in the country as a whole, and when Roe came along a few years later, Supreme Court justices saw abortion as a natural follow-up to the Connecticut birth-control decision. Having already taken the big step—as the court saw it—of deciding that matters of family planning and reproduction are constitutionally protected, to say that abortion is included in that set of issues seemed the natural next step. That’s the way they saw it, obtusely, not realizing how much higher the stakes were.

In the face of the enormous controversy that followed, what the court has done since then is to back down on abortion without overruling Roe. Medicaid can’t be used for abortion, and the court has upheld a variety of laws that restrict abortion. Yet at the same time that Roe was being attacked, women were assuming a new role in American society, moving into the workplace in larger numbers than ever before. That enormous change in American demographics may have been a factor in causing the justices to stop short of overruling Roe.

Aside from Roe, what has occurred in the last third of the 20th century and continues today is a disappearance of the old conservative view that the court should stay out of things. No one on the Supreme Court endorses that view—except in speeches. When you look at their actual decisions, you see that none of the justices is interested in staying consistently on the sidelines. They have rights they want to enforce—First Amendment rights, property rights, rights against affirmative action, the rights of tobacco companies to advertise, the rights of large corporations to escape federal regulation, or the right of a president to take office even though he might not have actually won the election. No one subscribes to the old view that the court should stay away from controversial issues.

Where does that leave us? The big question about the coming round of vacancies—if it is indeed a round and not only Justice Sandra Day O’Connor who leaves the court—is whether we are getting an old-fashioned, New Deal–type conservative who wants the court to stay out of the picture or are getting someone who wants to enforce some category of rights—and if so, what rights?

In terms of specific issues, there are two areas where there may be significant movement, toward and away from an active judicial role. It is unlikely, for example, that the beginnings of a move toward establishing rights for gays and lesbians, hinted at in Lawrence v. Texas—the 2003 decision that struck down a Texas sodomy law—will continue. Lawrence was a first step in seeing gay and lesbian rights as a civil-rights issue comparable to the rights of African Americans in the 1950s. With the new appointments, I don’t think the court will go backward, but I will be surprised if it takes another step. This issue probably will be resolved politically rather than judicially.

On the other hand, the court may very well be more aggressive in another area—limiting the power of Congress to regulate the economy. Here we come full circle. The very question that apparently was disposed of during the New Deal is back: are decisions about workplace safety, environmental regulation, consumer protection, and so on going to be made by Congress or by the courts? In the New Deal the matter was settled in favor of Congress, but it’s not out of the question that it may now be unsettled, at least so far as regulation by the federal government is concerned. All of the justices are relatively comfortable exercising their power, they have the moral capital accrued by the Warren Court, and the new agenda could be, “Wait a second—the framers of the Constitution never contemplated that Congress would be regulating these things.”

So my guess would be that we are in for an era of conservative activism, the rejection of the principle that the court should stay on the sidelines and let the elected branches of the government run the show. That principle will not be found on the current court. The new appointees may embrace it rhetorically, but they won’t in practice. They will have things they want to do, rights they want to enforce, rights that will be in some ways the mirror image of—or the conservative counterpart to—rights that the Warren Court enforced a generation ago.

David A. Strauss, the Harry N. Wyatt professor of law, joined the Law School faculty in 1985. Special counsel to the Senate Judiciary Committee in connection with the nomination of David Souter to the Supreme Court, Strauss has argued 18 cases before the United States Supreme Court and, with Chicago colleagues Geoffrey Stone, JD’71, and Dennis Hutchinson, edits the Supreme Court Review.