That the Court’s mood was changing became more apparent in 1937, before Roosevelt’s appointments but after his proposal to pack the Court, when, in West Coast Hotel Co. v. Parrish,16 a Washington law setting minimum wages for women was upheld despite the Adkins17 decision of 1923 striking down a similar District of Columbia law. It was well that Adkins was overruled, since there is nothing in the Constitution that prohibits minimum wage legislation, though such legislation is certainly unwise. But Chief Justice Hughes took a different line. He related in considerable detail the conditions and economic arguments that made the law desirable.
There are three things wrong with that approach. The first is that it throws the Court’s considerable prestige behind a political decision and endorses a line of economic argument, which in this case happened to be quite wrong. That tends to affect the balance of opposing contentions in the political marketplace. The second is that the concept of substantive due process was kept alive because the Court purported to examine the conditions that made the socalled liberty of contract inapplicable. Thus, an extraconstitutional idea was left to do damage in the future. Third, the performance lent itself to disingenuousness in the future. The Court purported to apply the constitutional doctrine of substantive due process to economic regulation, but in fact the Court abolished the doctrine, because from then on every such regulation of economic activity was upheld. The list of judicially fashionable human freedoms had changed.
The Discovery of “Discrete and Insular Minorities”
It quickly became apparent that Nebbia and West Coast Hotel were accurate weather vanes. In United States v. Carolene Products Co.,18 the Court sustained Congress’s prohibition of the interstate shipment of “filled milk,” milk mixed with any fat or oil other than milk fat. The Court rejected a due process attack by saying that the judicial inquiry must be limited to the question of whether any state of facts either known or which could be reasonably assumed provided any support for the statute. This was to become a deadly formula, for the Court proved quite ready to engage in the most extended and improbable conjectures about why legislatures might have thought economic regulations rational. The result was the appearance of judicial review without the reality.
But Carolene Products gave birth to an even more pernicious approach to questions of individual liberty and legislative power. In the famous footnote four to that opinion, Justice Stone said for the Court:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.19
That there should be any presumption of constitutionality for legislation that on its face is prohibited by a provision of the Constitution seems decidedly odd. That the presumption should be narrower than when no prohibition of the Constitution applies would seem indisputable. In the latter case, there should be a conclusive presumption of constitutionality. One might suspect that Justice Stone was preparing the way for something not so indisputable.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. [He cited cases invalidating restrictions on the right to vote on racial grounds, restraints on the dissemination of information and on interferences with political organizations, and the prohibition of peaceable assembly.]
Even the suggestion that legislation of the types cited might not be subjected to more exacting scrutiny seems almost disingenuous. The Court had already shown that it was prepared to enforce such constitutional values against state legislation.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious [citing Pierce], or national [citing Meyer], or racial minorities [citing cases on exclusions from primary elections on the basis of race].
These instances are again obvious cases for judicial holdings of unconstitutionality, but then came the apparent point of the footnote:
…whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
This is a very odd statement and has led to some highly questionable decisions. Recall that Stone was talking about reviewing statutes under the concept of due process. It is necessary to be clear about the distinction, already alluded to, between two forms of substantive due process. The first consists in applying the substance of various provisions of the Bill of Rights against state legislation on the theory that the fourteenth amendment’s due process clause “incorporates” those provisions. But for that incorporation, the Bill of Rights would restrain only the federal government. This theory has at least the merit of confining the courts to the enforcement of principles actually in the Constitution.
There is, however, a second form of substantive due process in which the courts create principles of freedom—freedom to own slaves, freedom to make contracts—that are nowhere to be found in the Constitution. It is proper that the Court recede from its highly interventionist stance under this second version, because it involves pure judicial legislation. But one hardly knows what to make of the tentativeness with which Stone suggests that the Court might be less deferential to the legislature if the legislation appears to be specifically prohibited by the Constitution. Of course, review should be more stringent if the Constitution reads on a subject than if it does not. That distinction should spell the difference between review and no review.
Perhaps the point of leading off with these puzzling suggestions is the last clause, which places on a par with all that has gone before a special protection to be given to “discrete and insular minorities.” Everything that has gone before in footnote four was referrable to actual provisions of the Constitution. The Constitution does protect religious, national, and racial minorities. They need not be classified as “discrete and insular” in order to get that protection. What minorities, then, could Stone be talking about? They are, apparently, minorities not protected by a constitutional provision who cannot win their point in the political process because of “prejudice.” Though it may be unpopular to point it out, the Constitution does not prohibit laws based on prejudice per se, though, of course, it prohibits those based on specified prejudices by protecting individuals who are members of particular groups from governmental discrimination based on that membership. It does not otherwise ban “prejudice.” In any event, how is the Court to know whether a particular minority lost in the legislature because of “prejudice,” as opposed to morality, prudence, or any other legitimate reason? One judge may as easily call a law that forbids certain types of sexual behavior a manifestation of the community’s morality as another may see in it a manifestation of the community’s bigotry. The Court, of course, can “know” whether prejudice or morality is in play only by deciding whether it thinks the reason for the legislative action is good, that is, whether the minority in question (which by definition is not one singled out by the Constitution for special protection) should not have lost in the legislature.
Stone’s formulation in footnote four means nothing more than that the Justices will read into the Constitution their own subjective sympathies and social preferences. The “discrete and insular minority” formula, like the others we have examined, allows just that. The new formula in the context of the Carolene Products decision had, however, an additional significance. The simultaneous abandonment of due process review of economic regulation, coupled with the suggestion that minorities, other than businessmen, would be given some form of special protection, signaled the decline of t
he free market as an ideal and of the business class as a dominant elite. These developments also adumbrated the rise not of the (asyet-unspecified) minorities, but of elites advocating the causes of minorities, whether in genuine sympathy or out of the expectation of power—or both.
Footnote four, then, adumbrated a constitutional revolution. In those few lines the doctrinal foundation of the Warren Court was laid. The Constitution being, as I have said, the trump card in our politics, the Court’s change of direction and its assumption of a power to be used for new ends meant a revolution in our society as well.
Laying the Foundation for Substantive Equal Protection
Due process protection of economic liberties has never returned. The Court upheld a statute fixing maximum employment agency fees in Olsen v. Nebraska.20 In retrospect, it is amusing to see that Justice Douglas had what, in light of his subsequent performances, can only be called the bravado to write that differences of opinion on the wisdom, need, or appropriateness of legislation should be left where they were left by the Constitution—to the states and to Congress. “Since [those notions of public policy embedded in the Court’s earlier decisions] do not find expression in the Constitution, we cannot give them continuing vitality as standards by which the constitutionality of the economic and social programs of the states is to be determined.” That amounted to a vow to be governed by the original understanding of the Constitution. But Douglas soon proved willing to put his own notions of public policy, which also do not find expression in the Constitution, into his constitutional decisions. The difference was only that his notions of public policy did not relate to economic freedoms.
Douglas demonstrated that thirteen months later, in the very next term of the Court. Oklahoma enacted a statute providing for the sterilization of habitual criminals. A “habitual criminal” was defined as a person who had committed two “felonies involving moral turpitude.” The act stated that “offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses” were not included.21 A certain Skinner had been convicted of felonies three times, once for stealing chickens and twice for robbery with firearms.
The problem in analyzing the case, Skinner v. Oklahoma,22 is that the statute strikes the modern sensibility as savage. There is a natural tendency to want to strike it down. But the Constitution is a legal document, one different in texture from almost all others, but still a legal document and not an expression of a mood or a general injunction to be “civilized.” To nullify the Oklahoma legislature’s policy on the grounds that it shocks the judge is to embed in the Constitution the judge’s notions of public policy, which, as the Douglas of Olsen v. Nebraska had just informed us, is entirely improper.
The approach Douglas disavowed was not merely improper on the occasion on which it was used; it led to more judicial lawlessness in the future. Judges, whose authority rests upon the public belief that they apply law and not emotion, are not usually content to say that a statute is unconstitutional because it is abominable. They try, therefore, to frame doctrine so that the intolerable law may be disposed of on what sound like legal grounds. But when the case is gone and the abomination erased, the doctrine remains. Lawyers and lower court judges will rely upon it, new cases will be decided in reliance upon it, and, since the doctrine was created in the first place to reach a result that existing doctrine did not permit, judicial power will have expanded to yet new territory. That is precisely what happened in Skinner v. Oklahoma.
Justice Douglas, perhaps having his recent animadversions on due process in mind, chose to use the equal protection clause of the same fourteenth amendment, and achieved precisely the same kind of result with the same kind of methodology that he had condemned in Olsen. This is a common tactic. People tend to suppose that the use of a different provision of the Constitution means that the flaw in substantive due process has disappeared. But the problem goes with the judge from clause to clause; the question always remains whether the provision in question gives him a relevant principle or whether, once more, he is embedding his own notions of policy in the Constitution.
The choice of the equal protection clause was interesting. In the Slaughter-House Cases,23 it will be recalled, that clause had, in accordance with its origins, been virtually confined to the prohibition of racial discrimination. So little regarded as a source of judicial authority was equal protection that, as Douglas mentioned, Justice Holmes, in Buck v. Bell, a nonracial case, had referred to the clause slightingly as “the usual last resort of constitutional arguments. …”24 Buck v. Bell, coincidentally, upheld a Virginia statute authorizing sterilization of mental defectives. Carrie Buck was feeble- minded, the daughter of a feebleminded woman held in the same institution, and the mother of a feebleminded illegitimate child, a circumstance that provoked Holmes to remark, “Three generations of imbeciles are enough.”25
But the Court in Skinner revived and remade the equal protection clause in such a way that it soon became not the last but the first resort of constitutional argument. Justice Douglas began by noting that under the sterilization statute stealing and embezzling identical amounts of money were treated differently. The three-time larcenist was subject to sterilization, the three-time embezzler was not. States were typically free, however, to make such distinctions in legislation as they wished. As Douglas recognized, “if we had here only a question as to a State’s classification of crimes, such as embezzlement or larceny, no substantial federal question would be raised.”26 But this legislation ran afoul of the equal protection clause, he said, because it affected “one of the basic civil rights of man.” It was clear, of course, that nothing in the Constitution made the state of being fertile a civil right. Douglas tried to avoid that difficulty in a very confused passage in which he first said that marriage and procreation are fundamental to the very existence and survival of the race. That observation was, of course, wholly irrelevant to the Oklahoma statute, which did not propose to sterilize the entire population. He next invoked the horrors of sterilization used for racial genocide, which also had nothing to do with the case or the Oklahoma statute, then pointed out that the injury was irreparable, and finally reneged on the statement that the Court had nothing to do with the state’s classification of offenses: “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”
Although the difficulty with the statute was said to be that a distinction had been made between embezzlers and larcenists, Douglas closed by suggesting that that might not be the problem at all: “It is by no means clear whether … this particular constitutional difficulty might be solved by enlarging on the one hand or contracting on the other … the class of criminals who might be sterilized.” If the decision really had been based on the equal protection clause, the statute could have been made constitutional by either providing for the sterilization of embezzlers or excluding larcenists from the classes of felons covered. Douglas was warning that the Court, or at least he, would not allow sterilization of criminals under any circumstances. That warning meant that Skinner was really a substantive due process case masquerading as a decision under the equal protection clause. The Court disapproved of sterilization, not of the distinction between types of felons.
This was the beginning of what came to be known as “substantive equal protection,” an extraordinarily deceptive and therefore powerful means by which judges can embed their notions of public policy in the Constitution without appearing to do so. Using the due process clause to strike down the substance of what a legislature enacted had obvious difficulties. The clause on its face required a fair process, not a fair substance. To say, for example, that sterilization was a deprivation of liberty without due process of law would have been transparently to add to the Constitution a principle that had not been there before. But to say that the l
aw denied equal protection of the laws because people who had done similar things were treated differently sounds much more like the application of a real constitutional provision. It was not that in Skinner, because Douglas conceded that the Constitution did not interfere with the state’s classification of crimes. But the problem goes deeper. Once the Court begins to employ its own notions of reasonableness in order to decide which classifications should be treated like race, it cannot avoid legislating the Justices’ personal views. The most honest and intelligent judge the nation has ever known could not avoid it if the clause is so read.
This is a point that many people, including lawyers and judges, seem to have difficulty grasping, yet it is quite simple. All laws, all statutes, contain classifications. That is, they treat people or behavior differently or the same according to characteristics the legislature deems relevant. But which things are the same and which are different is rarely—in human affairs never—a question of fact. Rather, it is always a question of perception, and perception is formed by a wide variety of factors. That is why, until relatively recently, the law did not require the differences that a legislature acted upon to be demonstrable in any even remotely rigorous sense. The differences or similarities perceived by the legislature and incorporated in statutory classifications may reflect moral views about which reasonable men and women may differ, judgments about degrees of danger, or decisions about what degrees of risk are acceptable. They may reflect tradeoffs between desires. The classifications will certainly reflect compromises between legislators or constituencies with different views concerning all of these matters. For these reasons different states have different laws about crime, marriage and divorce, tortious infliction of injury, and so on. It was why different states had different laws about abortion. If there had to be objective proof of real differences between the classifications of the law, legislatures could not legislate. Very few of the distinctions any of us make in life are based on demonstrable factors that we can show others to be true in any objective sense. That is why the Supreme Court has said that the Constitution does not require things to be treated alike if they are different in fact or opinion.
The Tempting of America Page 9