by Damon Root
Nine years later, in the case of Ferguson v. Skrupa, the Court relied in part on Lee Optical to uphold a state law criminalizing “the business of debt adjustment,” essentially a middleman-type position that acts as a paid broker between debtors and collectors. “The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but with the body constituted to pass laws for the State of Kansas,” declared the majority opinion of Justice Hugo Black, a former New Deal senator from Alabama and Supreme Court appointee of Franklin Roosevelt, who also tacked on this quote from Justice Holmes for good measure: “A state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State.”12 Ten years later, in the case of Lehnhausen v. Lake Shore Auto Parts Co., the Court would tip the scales even further in favor of the government, holding that in all cases dealing with economic regulations, “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might conceivably support it.”13
Yet at the same time that the Supreme Court was committing itself to this near-total submission to lawmakers on the economic front, the justices were testing the bounds of greater judicial action in other realms. As justification for this bifurcated approach, they pointed back to the fine print in the 1938 Carolene Products case. In Footnote Four of that opinion, Justice Harlan Fiske Stone explained that while the courts must now presume all economic regulations to be constitutional, “more exacting judicial scrutiny” would still be appropriate in other types of cases. For example, Stone agued, the Court should not automatically defer to a law that appeared to run afoul of “a specific prohibition of the Constitution, such as those of the first ten amendments.” In addition, Stone wrote, judicial deference would be equally inappropriate when the law at issue appeared to impact the right to vote or to otherwise impede the “political processes” normally employed by citizens to vindicate their rights. Finally, Stone argued, “prejudice against discrete and insular minorities” may also require a “more searching judicial inquiry.”14 According to Footnote Four, in other words, the Supreme Court need not after all commit itself to the practice of judicial restraint in all cases.
To the members of the burgeoning civil rights movement, the call for enhanced judicial scrutiny on behalf of voting rights and “discrete and insular minorities” sounded exactly right. Under the leadership of talented lawyers such as future Supreme Court Justice Thurgood Marshall, the NAACP Legal Defense Fund was then asking the courts to breathe real life into the Fourteenth Amendment by securing equal treatment under the law for African Americans throughout the realm of Jim Crow. That strategy famously paid off with the Supreme Court’s historic 1954 ruling in Brown v. Board of Education of Topeka, Kansas, one of the greatest legal victories for racial equality since libertarian NAACP president Moorfield Storey won Buchanan v. Warley back in 1917. Under Brown, racial segregation in public schools was ruled to be “inherently unequal”15 and therefore unconstitutional under the Equal Protection Clause.
Brown, and the line of desegregation cases that followed it, inspired a harsh backlash throughout the country, with segregationists and their allies denouncing the “judicial tyranny” of the Supreme Court and calling for the impeachment of Chief Justice Earl Warren, who authored the unanimous majority opinion. But Brown also had its critics on the left, a fact that is sometimes forgotten today. Foremost among them was Judge Learned Hand, recently retired from his position as chief judge of the U.S. Court of Appeals for the Second Circuit. Considered by many legal observers to be the greatest judge never to sit on the Supreme Court, Hand was an undisputed icon of the Progressive movement, a revered jurist and scholar whose career stretched back to the great battles over the role of the courts that raged during the Lochner era.
Born in Albany, New York, in 1872, Hand studied law at Harvard and went on to serve as a key adviser to Theodore Roosevelt’s 1912 Progressive Party campaign for the presidency. One year later, Hand himself appeared on the Progressive ticket as a candidate for the chief judgeship of New York’s highest court. In 1914, he joined Herbert Croly in founding The New Republic, where he regularly contributed articles and editorials advocating Progressive political and legal theories until his appointment to the Second Circuit in 1924, where he would spend the next three decades. When he died in 1961, the New York Times responded with a front-page obituary describing him as “the greatest jurist of his time.”16
In February 1958, at the age of eighty-seven, Hand was invited back to Harvard to deliver the celebrated Oliver Wendell Holmes Lecture, an annual event featuring a distinguished legal speaker. In his remarks, delivered over three nights and later published as a short book titled The Bill of Rights, Hand’s theme was the fundamental illegitimacy of judicial review and what he saw as the troubling rise of liberal judicial activism by the current Supreme Court, including its recent decision in Brown v. Board of Education. He began with a critique of the “patent usurpation” whereby the Supreme Court had transformed itself into “a third legislative chamber.”17 As he explained, such activism was inappropriate no matter what value was at stake. “I can see no more persuasive reason for supposing that a legislature is a priori less qualified to choose between ‘personal’ than between economic rights,”18 he announced. As for the constitutional protections spelled out in the Bill of Rights and the Fourteenth Amendment, “we may read them as admonitory or hortatory, not definite enough to be guides on concrete questions.”19 As Hand saw it, the individualistic language of the Constitution was no license for judges to go meddling around with the democratic process.
Turning next to Brown, Hand argued that the problem with the Supreme Court’s ruling was that the justices had substituted their own values for those of the Kansas authorities. That, he said, was precisely what conservative justices had previously done in order to strike down the economic reforms they disapproved of during the Progressive and New Deal periods. Brown, he informed his increasingly disquieted audience, was guilty of the same judicial sins that had marred Lochner and other liberty of contract cases, and must therefore be rejected as such. “There can be no doubt,” he declared, “that the old doctrine seems to have been reasserted.”
Indeed, Hand went on, in the aftermath of Brown and other aggressive liberal rulings by the Warren Court, “I do not know what the doctrine is as to the scope of these clauses,” meaning the Due Process and Equal Protection Clauses of the Fourteenth Amendment. “I cannot frame any definition that will explain when the Court will assume the role of a third legislative chamber and when it will limit its authority.”20 It was judicial power run amok.
To conclude his lecture, Hand made one final, personal plea for the Court to adopt the method of judicial deference he had been championing for nearly half a century. “For myself,” he said, “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”21
In time, those eloquent words would come to be celebrated as one of the most powerful statements ever made in favor of judicial restraint. But that eloquence did little to make the bitter pill of Hand’s message any easier to swallow in 1958, especially for the many young liberals in his audience who had cheered Brown as among the Supreme Court’s finest rulings. As Hand biographer Gerald Gunther later put it, “Warren Court admirers could dismiss the most vocal critics of the Court as extremists; yet here was the nation’s most highly regarded judge . . . apparently joining the Court’s enemies.”22
Into the Thicket
Nor would Hand be the only Progressive veteran to line up against the new liberal order. Felix Frankfurter, the influential Harvard professor, protégé of Oliver Wendell Holmes, and New Deal adviser to President Franklin Roosev
elt, had been rewarded for his accomplishments when FDR elevated him to the Supreme Court in 1939. But then something unexpected happened. As his colleagues began to adopt the Footnote Four framework and apply heightened judicial scrutiny in cases dealing with civil liberties and voting rights, Frankfurter, for the first time in his professional life, found himself increasingly out of step with the liberal consensus. By the time he retired in 1962, many young reformers had come to regard Frankfurter as one of the Supreme Court’s leading reactionaries, and not as any sort of progressive at all.
Frankfurter got his first taste of the Supreme Court’s new direction in a pair of cases dealing with the question of whether public schools may require their students to salute the American flag as part of a daily exercise that included the Pledge of Allegiance. The first of those cases originated in Pennsylvania, where two children, aged ten and twelve, both practicing Jehovah’s Witnesses, had refused to salute the flag and were therefore expelled. Their father challenged the law on their behalf, arguing that it interfered with the children’s religious liberty.
Frankfurter saw the matter quite differently. In fact, he thought it was an open-and-shut victory for the local school board. “The court-room is not the arena for debating issues of educational policy,” he declared for the majority in the 1940 case of Minersville School District v. Gobitis. One of the main purposes of public education, Frankfurter said, was to instill notions of patriotism and democracy in young Americans. And it was simply beyond the legitimate purview of the federal courts to second-guess local determinations made in the service of that basic objective. To rule otherwise, he maintained, “would in effect make us the school board for the country.”23 If a family of Jehovah’s Witnesses (or any other sect) wanted to secure greater accommodations for their religious beliefs, they should do so “in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena.”24
Yet just three years later, thanks in part to a change in the Court’s composition, Frankfurter found himself on the losing side of a nearly identical dispute in the case of West Virginia State Board of Education v. Barnette. Once again, some young Jehovah’s Witnesses had refused to participate in their public school’s mandatory flag salute ceremony on religious grounds. But this time the Supreme Court ruled in the students’ favor, holding that the state government had trespassed on their constitutional rights. “To sustain the compulsory flag salute,” observed the majority opinion of Justice Robert Jackson, “we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.”25
Frankfurter was furious about being overturned, and he made no effort to hide it in his dissent. “Responsibility for legislation lies with legislatures, answerable as they are directly to the people,” he announced. “This Court’s only and very narrow function is to determine whether, within the broad grant of authority vested in legislatures, they have exercised a judgment for which reasonable justification can be offered.”26 Pointing to his own identity as a Jewish American, Frankfurter tartly noted that while he knew a thing or two about the plight of religious minorities, that knowledge still gave him no license as a judge to stamp his own feelings on the Constitution. “As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more, and not less, important,” he warned his colleagues, “lest we unwarrantably enter social and political domains wholly outside our concern.”27
Frankfurter would repeat that same warning with even greater volume two decades later in what turned out to be his final opinion as a justice, a long and bitter dissent from the landmark 1962 voting rights decision in Baker v. Carr. Hailed by Chief Justice Earl Warren as “the most vital decision”28 handed down during his tenure on the bench, Baker dealt with the thorny issue of how a state government apportions its legislative districts in the wake of a census. The case originated in Tennessee, where the plaintiffs charged Secretary of State Joseph Cordell Carr with stacking the deck in favor of rural voters at the expense of the state’s growing urban population by failing to properly redraw the boundary lines for the ninety-five districts that comprised the Tennessee General Assembly. According to the challengers, the state government was effectively denying urban residents a fair share of political power and thereby violating the basic principle that the Supreme Court would ultimately recognize as “one person, one vote.” For its part, Tennessee argued that the federal courts lacked jurisdiction to hear the case, and added that the issue of legislative apportionment was a “political question” that the Supreme Court had no business trying to solve.
Writing for a six-to-two majority, Justice William Brennan ruled against the state. While he did not pass judgment on the constitutionality of Tennessee’s current apportionment scheme, Brennan made it clear that the challengers had every right to bring suit and that the federal courts were within their rights to settle the matter in a future case. “The complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision,” he held. “The right asserted is within the reach of judicial protection under the Fourteenth Amendment.”29 Two years later, in Reynolds v. Sims, Chief Justice Warren went further and nullified Alabama’s lopsided districting plan, ruling that representation in a state legislature must closely track the state’s actual population. “Legislators represent people, not trees or acres,”30 he declared.
In a previous redistricting case, Felix Frankfurter had urged the Supreme Court to avoid the matter entirely as a basic act of judicial restraint. “Courts ought not to enter this political thicket,”31 he famously wrote. Finding himself on the losing side of Baker, Frankfurter doubled down on that deferential position. The Court’s ruling, he declared in dissent, was “a massive repudiation of the experience of our whole past” brought about by the assertion of a “destructively novel judicial power.”32 The Court had simply gone too far. “There is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power,”33 he argued. Yet thanks to the majority’s holding, the federal courts were now empowered “to devise what should constitute the proper composition of the legislatures of the fifty States,”34 a result he found both offensive and unworkable. “In a democratic society like ours,” Frankfurter maintained, “relief must come through an aroused popular conscience that sears the conscience of the people’s representatives,”35 not through the courts.
To say the least, it was not an opinion destined to win Frankfurter any new fans on the American left. Indeed, as one historian recently put it, “With time, it came to seem impossible that a justice who opposed judicial enforcement of voting rights could be considered liberal.”36 The same thing might be said about the West Virginia flag-salute case, now considered a touchstone in the advancement of civil liberties. Yet there stood Frankfurter, one of the last lions of the Progressive legal movement, attacking his liberal colleagues for their judicial activism on both counts.
What changed? Certainly not Frankfurter—he remained faithful to the majoritarian jurisprudence of his youth. Back in 1924, outraged over the use of the Fourteenth Amendment to overturn state regulations, he had called for the repeal of the Due Process Clause in an unsigned editorial written for The New Republic. Now, in the twilight of Jim Crow, Frankfurter was still urging the federal courts to butt out of state affairs and let local citizens and their elected representatives chart their own political futures. He saw Footnote Four as an escape hatch, one that let federal judges roam free once more to strike down state and federal legislation.
“Penumbras, Formed by Emanations”
The growing tension between Progressive restraint and liberal activism finally exploded when the Supreme Court grappled with the hot-button is
sue of reproductive privacy. In Connecticut, under a statute dating back to 1879, it was a crime to use “any drug, medical article or instrument for the purpose of preventing conception,”37 as well as to assist, counsel, or otherwise aid any person in the use of such devices. Birth-control advocates had previously tried to get the Supreme Court to consider the merits of the contraceptive ban on two separate occasions, and had been rebuffed both times. First, in the 1943 case of Tileston v. Ullman, the Court ruled that the challenger lacked the requisite legal standing to bring suit. Then, in 1961’s Poe v. Ullman, the Court said that because no one had actually been prosecuted for violating the law, the case was not yet “ripe” enough for adjudication.
But all that changed with the 1965 case of Griswold v. Connecticut. Two agents of the state’s Planned Parenthood League, one of whom was a doctor, had been duly charged with dispensing birth-control information and devices to married couples. The Supreme Court saw its opportunity to rule on the matter and tackled the case head-on.
The result was a fractured ruling that continues to spark debate. At the heart of the case was a deceptively simple question: Does the Constitution protect a right to privacy that covers the freedom of married couples to use birth control? A majority of the Court held that it did, but then quickly divided over precisely how the Constitution managed to do it. Writing for a five-justice majority, Justice William O. Douglas argued that while the right to privacy is not specifically enumerated in the text of the document, various textual provisions do nonetheless protect certain aspects of privacy, such as the Fourth Amendment’s guarantee against unreasonable searches and seizures and the Fifth Amendment’s protection against self-incrimination. Furthermore, Douglas argued, those “specific guarantees in the Bill of Rights have penumbras [shadows], formed by emanations from those guarantees that help give them life and substance.”38 Taken together, the “penumbras” and “emanations” of these “fundamental constitutional guarantees” create a distinct “zone of privacy”39 that is itself a constitutional right worthy of judicial protection. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” he asked. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”40