When at Times the Mob Is Swayed

by Burt Neuborne

  In the long run, therefore, the Constitution is not above politics. It is shaped by politics. The meaning of crucial provisions of the Constitution in our time will be decided not in some apolitical legal world by idealized Platonic guardians responding to legal arguments but by whether our presidential and senatorial elections turn the Supreme Court red or blue.

  Though that may sound frightening, I believe that’s just the way it should be in a legal and political system genuinely committed to government by the people. When an American judge is confronted with a constitutional case where the text is ambiguous, the precedent weak, and the values point in different directions, the judge has four options: (1) refuse to decide the case, claiming a lack of judicial standards for decision; (2) use criteria unconnected with the merits, such as the race of the litigant, partisan politics, friendship with one of the lawyers, or self-interest; (3) use random criteria such as flipping a coin; or (4) consult his or her—or the society’s—values to determine what is, in the judge’s view, the best way to read the ambiguous text.

  The first response—deciding not to decide—is plausible. An entire branch of constitutional law called the “political question doctrine” is devoted to deciding when a judge should decline to exercise judicial review because of a lack of “manageable judicial standards.” It’s how the Supreme Court has ducked dealing with partisan gerrymandering for two generations. If, however, the option of judicial silence is widely invoked whenever the constitutional text can be read in more than one way, most judge-made constitutional law would cease to exist.

  We could, like Great Britain, adopt such a minimalist version of judicial review, but only at the cost of reversing Marbury v. Madison and radically altering the American Constitution.

  Since the second and third options are clearly unacceptable, that leaves the judge’s values as the only game in town. As we’ve seen, for most of our history, we have lived under a Republican Constitution that privileges autonomy over equality. For one thirty-five-year burst, from 1937 to 1972, we lived under a Democratic Constitution that injected equality into American law as a serious rival to autonomy.

  We have lived since 1972 under a Republican Constitution restoring autonomy and security as primary tiebreakers in hard cases, but have continued to enjoy the fruits of the once and future Democratic Constitution in the form of respect for equality-enhancing precedent, and an occasional lurch forward propelled by an alliance between a maverick Republican justice’s principled commitment to autonomy and the four Democratic justices’ sympathy for legal doctrine protective of equality. That’s what brought us constitutional protection of gay marriage.

  We are, I believe, about to enter a period of even more intense protection of autonomy and a corresponding weakening of protection for equality. But that won’t last forever. The truth is that the federal judiciary, including the Supreme Court, is constantly being remade by an infusion of newly appointed judges. That infusion reflects the sustained political choices of the people who elect both the appointing and confirming authorities. Over time, therefore, the constitutional balance between autonomy and equality will be decided in the voting booth.

  5

  The Fortas Fiasco

  How Not to Maintain the Brakes

  My candidate for the worst political fiasco of the twentieth century is President Lyndon Johnson’s almost inexplicable failure in 1968 to name a Democratic successor to Chief Justice Earl Warren. Johnson’s blunder cost the Democrats control of the Supreme Court for the next fifty years and changed the course of constitutional history.

  There was no obvious political excuse for the failure. In 1968, Democrats enjoyed a comfortable 6–3 Supreme Court majority, with Earl Warren, a Republican in name only who had been cross-endorsed by the Democrats when he ran for Governor of California, counted as a Republican. Democrats also enjoyed an overwhelming 66–34 majority in the Senate, even after losing three seats in the 1966 election. LBJ, who had been elected president in a landslide in 1964, was a master legislative tactician who had successfully shepherded more than a hundred administration-supported bills through Congress, including Title VII, barring race and gender discrimination in employment; Title VIII, banning housing discrimination; and the Voting Rights Act of 1965, barring racial discrimination in access to the ballot.

  By 1968, though, President Johnson had been weakened politically: his lame-duck status, liberal opposition to the Vietnam War, southern opposition to the 1960s civil rights statutes, and intense Republican-led opposition to the Warren Court’s equality-friendly rulings—triggering a backlash that presaged the ultimate collapse of the Democratic Party in the states of the old Confederacy.

  On the other hand, back in 1968, the Supreme Court nomination process had not yet degenerated into its current toxic, hyperpartisan state. The consensus belief in 1968 was that presidents were entitled to appoint Supreme Court nominees of their choice as long as the Senate reviewed and certified the nominee’s ethical and intellectual qualifications. As recently as 1956, President Dwight Eisenhower had used a recess appointment, without the objection of a single senator, to place Justice William Brennan Jr. on the Court.

  Although Supreme Court confirmation controversies had broken out regularly in the eighteenth and nineteenth centuries, the first formal Senate committee hearing on a Supreme Court nominee did not take place until 1916, driven by opposition to Justice Louis Brandeis’s nomination to be the first Jewish justice. Even then, Brandeis was not called to testify. In fact, prior to 1968, no Supreme Court nominee had been called to testify before the Senate.

  To make things easier for LBJ, Earl Warren, who despised Richard Nixon, tried to ease the transition by giving the president a year’s notice of his intention to resign, and by making his resignation conditional, effective only on the confirmation of a successor. A bulletproof successor was waiting in the wings: Arthur Goldberg, appointed to the Court by President Kennedy in 1962, Goldberg had resigned in 1965 at LBJ’s request to represent the United States at the United Nations. Goldberg would have been a shoo-in the second time around. But LBJ was reportedly reluctant to place a second Jew (and a Kennedy loyalist at that) on the Court.

  Instead, he sought to elevate his crony and longtime legal advisor, Associate Justice Abe Fortas, to the chief justiceship. Not only would elevating Fortas reward a political ally, but it would also open a second vacancy, allowing Johnson to appoint another close political ally, Homer Thornberry, formerly a Texas congressman, who was then serving on the Fifth Circuit Court of Appeals.

  Then the wheels fell off. Fortas, who prior to Johnson’s nomination as vice president had successfully defended LBJ in litigation arising out of highly plausible allegations of corruption in Texas House and Senate primary elections, had raised eyebrows by continuing to provide informal legal advice to the White House, even after his confirmation in 1965 as an associate justice.

  LBJ then alienated the leader of the southern bloc, Senator Richard Russell of Georgia, by stalling on approving Russell’s allegedly racist choice for a Georgia district court nomination. When Fortas was finally forced to testify under oath before the Senate Judiciary Committee, he revealed his ethically doubtful post-appointment legal ties with the White House. Fortas also disclosed a questionable financial relationship with American University under which he received a substantial payment, equal to almost 40 percent of his Supreme Court salary, for teaching a single course at the law school.

  The twin admissions allowed senators to claim to be opposing Fortas’s nomination on grounds of ethics and judgment, not because of his legal views. Although a majority of the Senate Judiciary Committee recommended confirmation, the Fortas nomination was in trouble from day one on the Senate floor, where Republicans launched the first filibuster in the Senate’s history against a Supreme Court nomination. In those days, it took as many as sixty-seven votes to break a filibuster. The Fortas nomination never had a chance. President Johnson stubbornly forced a floor vote on breaking the filibu
ster, hoping to save face by securing a comfortable majority, but the final vote was a bare 45–43 for advancing the Fortas nomination, far less than the two-thirds present and voting needed to break the 1968 version of the filibuster.

  It’s ironic that under today’s fiercely politicized rules, a simple 45–43 majority would have been enough to confirm Abe Fortas as chief justice, changing the course of twentieth-century constitutional history. Brett Kavanaugh was confirmed by a vote of 50–48.

  In 1968, though, the Fortas nomination, needing a supermajority, was dead in the water. Fortas withdrew his candidacy that afternoon. Since Earl Warren’s resignation was conditional on the confirmation of a successor, Warren remained on the Court as chief justice, along with Fortas. The Court’s 6–3 Democratic majority remained intact through the 1968 presidential election, in which Richard Nixon successfully campaigned against the Warren Court, especially in the South.

  Things got much worse in the new year. In February 1969, shortly after Nixon’s inauguration, Fortas admitted to receiving post-appointment legal payments of $20,000 per year (more than $120,000 in today’s dollars) from a shady Wall Street financier, Louis Wolfson, in return for undefined legal advice. When Earl Warren learned of this outrageously unethical arrangement, he demanded Fortas’s resignation to head off impeachment. Fortas resigned in disgrace in May 1969, closely followed by Warren in late June for health reasons at the close of the Supreme Court’s term.

  The resignations of Fortas and Warren handed Richard Nixon two unexpected Court vacancies during his first term, which he filled with two Republicans—Warren Burger and, after two failed nomination attempts, Harry Blackmun. When the illness of Justice Hugo Black (a Democrat) and the resignation of Justice John Marshall Harlan II (a Republican) opened two additional vacancies, Nixon filled them with two more Republicans, Lewis Powell and William Rehnquist—shifting the political makeup of the Supreme Court to 5–4 Republican from the 1968 lineup of 6–3 Democratic, with Earl Warren being counted as a Republican.

  Had the Warren succession not been bungled, Democrats would almost certainly have maintained no worse than a 5–4 Supreme Court majority, and the constitutional landscape would look very different today. Once they lost their Supreme Court majority on January 7, 1972, the Democrats never regained control of the Supreme Court. Instead, the new Republican Supreme Court majority flipped the switch from equality to autonomy and, with the anomalous exception of Roe v. Wade’s autonomy blip in 1973, stopped the progressive legal movement toward racial, gender, and economic equity dead in its tracks.

  It’s hard enough to score in the game of Supreme Court deferred democracy. It’s heartbreaking to have won the game in 1968, only to be undone by the greed and arrogance of a single Democratic nominee and the overweening pride and ambition of a Democratic president. It’s almost as bad as having won the game in 2016, only to have President Obama’s nomination of Merrick Garland unconstitutionally sabotaged by a malapportioned Republican Senate.

  Here’s just a sample of the cost of Abe Fortas’s greed, arrogance, and ethical insensitivity, providing a tangible measure of how important it is for progressives to use deferred democracy to regain control of the Supreme Court.

  EDUCATIONAL EQUITY

  The Warren Court began in 1954 with the Supreme Court’s unanimous rejection of “separate but equal” racially segregated public education, followed by a ferocious, largely successful assault on government-imposed racial apartheid. The Warren Court ended in 1973 with the newly minted Republican Supreme Court’s 5–4 decision in San Antonio v. Rodriguez, upholding separate but unequal, racially polarized public education.

  Invoking the right to equal protection of the laws guaranteed by the Fourteenth Amendment, advocates for Hispanic children attending poorly funded public schools in San Antonio, Texas, attacked the constitutionality of Texas’s decision to fund its public education system almost exclusively through local property taxes, resulting in very significant, wholly predictable differences in per capita educational spending depending on whether a child lived in a wealthy white neighborhood with lots of valuable real estate to tax or in a poor black or Latino neighborhood with a minimal tax base. Under the Texas school financing plan, rich white suburbs such as Plano (a wealthy suburb of Dallas) boasted fine, well-funded public schools, while public schools in poor black or Latino neighborhoods in San Antonio were woefully underfunded.

  The Supreme Court’s five Republican justices rejected the argument that the Constitution’s promise of the equal protection of the laws forbade Texas from knowingly adopting a school funding program that would spend far more government money per capita on rich white children than on poor black or Latino children. The four Democratic justices dissented, stressing the fundamental nature of education and the social consequences of funding rich white schools more generously than poor black ones.

  Viewed from a purely legal perspective, the constitutional arguments in Rodriguez were in rough equipoise. The challengers’ invocation of the Fourteenth Amendment to forbid predictable but unintentional racial discrimination in per capita educational funding was certainly plausible. In 1973, when I directed the ACLU’s Supreme Court docket, I found it overwhelming. It built on Brown and on the Democratic Supreme Court’s refusal to countenance unequal allocation of the right to vote in the absence of a showing of overwhelming need.

  But Texas’s counterargument that, in the absence of intentional discrimination, the Fourteenth Amendment required not strict equality in educational spending but merely enough spending to reach a minimal baseline of adequacy was not without legal force, especially since no intent to discriminate on the basis of race was alleged or proven.

  I believe that the legal tie in Rodriguez was broken not by the intrinsic merits of the evenly balanced legal arguments but by the degree to which the five Republican justices subordinated the equality claims of the black and Latino challengers to the autonomy claims of white local residents of Texas to fund and control the education of their children as they saw fit.

  I am not saying that the Republican justices were hostile to the claims of the black and Latino children. Rather, I assert merely that the Republican justices’ intuitive ranking of the relative importance of the values of autonomy and equality caused them to perceive Texas’s autonomy-advancing legal arguments as more persuasive than equally valid equality-enhancing ones advanced by the challengers. The four Democratic justices disagreed about the legal merits, not because they were smarter or morally superior but because the challengers’ equality-enhancing legal arguments reinforced the Democratic justices’ intuitive sense of the appropriate balance between autonomy and equality. In Rodriguez, when it was impossible to find a legal argument that advanced both autonomy and equality, Republican justices chose the legal argument that advanced autonomy; Democratic justices chose the legal argument that advanced equality. And that has made all the difference.

  If LBJ and Abe Fortas had not run the Democratic Supreme Court off the cliff, Rodriguez would have been decided in favor of the poor Hispanic students, dramatically changing the face of public education in America. When someone tells you that voting doesn’t really matter, think about the America that might have been in the last half of the twentieth century if there had been equal funding of public schools in both impoverished inner cities and affluent gated communities.

  RACIAL EQUITY

  Three years later, in 1976, the same five members of the Republican Supreme Court majority, this time joined by Democratic Justice Byron White (John F. Kennedy’s only serving nominee to the Supreme Court), seriously weakened progressive efforts to use the Fourteenth Amendment’s promise of equal protection of the laws to advance racial equity by holding in Washington v. Davis that the Fourteenth Amendment’s equal protection clause provides protection against intentional racial discrimination but no protection at all against the knowing, reckless, negligent, or careless adoption of government policies that disproportionately harm minorities for no good r
eason. Three Democratic justices dissented.

  The challengers in Washington v. Davis, black applicants for jobs in Washington, DC, argued that the city’s civil service exams were full of questions that unfairly disadvantaged poorly educated black applicants but had little or nothing to do with how well an applicant could perform a particular job. Perfectly competent janitors and bus drivers, the argument went, do not have to know how to multiply and divide complex fractions.

  The Democratic Warren Court had already accepted the argument—sometimes called a ban on unjustified “disparate impact”—in connection with the Title VII ban on employment discrimination. Under the Title VII test, once the racially disparate impact of a criterion for employment policy was demonstrated, an employer was obliged to either prove that the criterion was job-related or cease to use it.

  In 1976, though, the District of Columbia wasn’t covered by Title VII, which at that time applied only to private employers, so the challengers relied on the due process clause of the Fifth Amendment, with its long-recognized implied protection of equality.

  In Washington v. Davis, five Republican justices, plus Justice White, refused to import the disparate-impact test into the Fourteenth Amendment. Instead, they insisted on a “discriminatory purpose” test that prohibits intentional or purposeful racial discrimination but has nothing at all to do with unintentional discrimination caused by knowing disregard, carelessness, negligence, or lack of concern.