A People's History of the Supreme Court

by Peter Irons

  Viewed through a narrow lens, we can read the history of the Supreme Court through the judicial opinions of famous men like John Marshall, Roger Taney, Oliver Wendell Holmes, Louis Brandeis, Hugo Black, Felix Frankfurter, and Earl Warren. Their landmark decisions track the first exercises and the final triumph of judicial power in the American political system and trace the shifting course of constitutional doctrine. But a people’s history of the Court requires a broader lens and a wider focus. We need to remember that each landmark decision stemmed from a “case or controversy” that began with claims to constitutional protection by ordinary Americans like Dred Scott, Homer Plessy, Lillian Gobitas, Fred Korematsu, Harry Briggs, Norma McCorvey, and Michael Hardwick. Each of these individual litigants faced a legal adversary who asserted the power to enforce the laws: a judge, school principal, army general, or district attorney. Each of their cases, in turn, brought into the courtroom an unresolved political conflict: slavery, racial segregation, patriotic conformity, military power, abortion, or gay rights. And the outcome of each case reflected the composition of a Court whose members had most often been active in the political party of the president who placed them on the bench.

  A People’s History of the Supreme Court takes account of the interlocking factors of personality, principle, and politics. We will look closely at the people who played leading roles in framing and interpreting the Constitution, and at those whose cases brought its important provisions before the Court. The people in these two groups differ widely in background: many among the Framers and justices were wealthy and wellborn, while most of those who sought their rights in the Court had little money or social status. We will explore the differing principles these people expressed, some in articulate and thoughtful judicial opinions, others in simple words or forceful acts.

  It is difficult to place labels on the wide range of principles we will encounter, but they fall broadly into two conflicting viewpoints in American history. One looks first at the individual; the other at the community. One values personal rights; the other stresses social responsibility. One believes that the Constitution—as Justice Robert Jackson wrote—was designed to place fundamental rights “beyond the reach of majorities.” The other argues—in the words of Jackson’s former law clerk Chief Justice William Rehnquist—that “it is the majority who will determine what the constitutional rights of the minority are.” The recurring conflict between these sets of principles has roiled American politics ever since the Constitution was drafted, and those political battles have often produced skirmishes in the Supreme Court. This book takes for its epigraph the words of a perceptive and prescient foreign observer, Alexis de Tocqueville, who visited America in the 1830s and remarked: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

  A People’s History of the Supreme Court is the culmination of thirty years of teaching, writing, speaking, and practicing in the field of constitutional law. It also reflects some forty years of involvement in movements and campaigns for social change. These two aspects of my life are inseparable; I chose a career in law— later than most lawyers—because it offered a chance to combine my personal values and professional interests. I have no desire to conceal those values behind a mask of scholarly “objectivity” or a veil of “neutrality” in recounting the legal battles this book examines. No book on constitutional history I have ever read has failed to conceal its author’s personal values or political stance, despite the disclaimers of some.

  Every book has a point of view, and I think it fair to disclose mine at the outset. I believe firmly that the Constitution’s basic command is that every person must be accorded the dignity he or she deserves as a human being. All people must be treated fairly and equally, without discrimination because of any characteristic they were born with or have chosen to express their identity, including race, religion, nationality, gender, sexual orientation, politics, disability, and any other distinguishing quality by which we label people. It is the job of every government official—from police officer to president—to treat each person with respect. This may sound more like the Golden Rule than the rule of law, but the same idea lies behind each.

  I also believe firmly that the Framers—despite their flaws—shaped the Constitution as a “living” document, whose basic principles would endure but whose separate provisions would grow in meaning as American society grew in size and diversity. Justice William Brennan, who remains my judicial ideal and inspiration, expressed this notion when he wrote in 1986 of constitutional interpretation: “We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” In less resonant words, I made the same point in 1957, responding as a high school senior to a right-wing columnist in the Cincinnati Enquirer who almost daily attacked the Warren Court’s rulings on school integration. I replied that “the duty of the Supreme Court is to redefine the purport of the law in light of changing social trends.” That remains my belief, reinforced by changing social trends in areas like gender equality, gay rights, abortion, and death with dignity. My positions on these issues are “liberal” by most standards, but I consider myself a true conservative in holding fast to the principles best expressed in the Declaration of Independence, the enduring principles of liberty and equality.

  Let me explain the genesis of this book, whose title and approach I modeled on Howard Zinn’s exciting and provocative A People’s History of the United States. My first contact with Howard came in 1967, when I wrote to him at Boston University, seeking his help in gaining admission to graduate study in political science. I was then Inmate No. 21341 at the Federal Correctional Institution in Danbury, Connecticut, serving a three-year sentence for refusing military induction in 1963. I wound up in prison as the result of my involvement in the sit-in movement and my pacifist beliefs. In October 1960, as a student at Antioch College, I attended a conference in Atlanta of the Student Nonviolent Coordinating Committee, where I was inspired by two young black ministers, Martin Luther King, Jr., and James Lawson. King’s ringing call to practice nonviolence in our lives and Lawson’s powerful challenge to risk jail for our beliefs prompted me to return my draft card and tell my local board in Cincinnati that I could not fight for a country that practiced racial segregation.

  My draft board returned my card, along with an invitation to apply for conscientious objector status. The form they sent me required that I affirm my belief in a Supreme Being, with duties “superior to those arising from any human relationship.” Not only did I not hold this belief, but I felt that it violated the Constitution’s provision that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Serving my country through “alternative service” seemed to me like an office or public trust. I made this argument to a federal judge in 1965, after my indictment for refusing induction, but I failed to convince him. Before I started my prison sentence, I worked for three years in the Washington legislative office of the United Auto Workers, where I often took breaks from boring congressional hearings and crossed the street to hear arguments in the Supreme Court chamber. These experiences spurred an interest in law and politics, and I decided to pursue a career that would combine them. “My special interests are in civil liberties and American politics,” I wrote to Howard Zinn from prison. He responded promptly and warmly, sending me books over the eighteen months before we first met in February 1969. Howard became a friend, mentor, and inspiration as a “committed scholar” whose books recount the struggles of ordinary people with extraordinary courage.

  After completing my political science doctorate at Boston University
in 1973, I held several part-time teaching jobs in Boston while I worked against the Vietnam War. Howard also helped arrange a job with the law firm representing Daniel Ellsberg, who was under federal prosecution for “stealing” the Pentagon Papers, which revealed decades of presidential lies about the war. Ellsberg’s lawyers put me to work documenting the release of “secret” records by government officials—including Henry Kissinger and President Lyndon Johnson—who had escaped prosecution. My research ended when a federal judge dismissed Ellsberg’s indictment because of prosecutorial misconduct, but I had caught the legal bug and decided to get a law degree. Much to my surprise, Harvard Law School admitted an ex-convict in his mid-thirties, and I delved into constitutional law with Laurence Tribe and American legal history with Morton Horwitz. I also volunteered with Harvard Defenders in Boston criminal courts and helped to edit the Harvard Civil Rights-Civil Liberties Law Review.

  After graduating in 1978, I taught at Boston College Law School and then in the Legal Studies Program at the University of Massachusetts at Amherst, before moving to the University of California at San Diego in 1982. At UCSD, I established the Earl Warren Bill of Rights Project, designed to produce innovative curricular materials for high school and college classes. My book The Courage of Their Convictions was the first product of the Warren Project, followed by the May It Please the Court series of Supreme Court oral arguments on tape. During these years, I also helped to reopen the wartime internment cases of Fred Korematsu, Min Yasui, and Gordon Hirabayashi and served on the national board of the American Civil Liberties Union.

  I offer this brief personal history for two reasons. First, my experiences help explain my approach to constitutional law. My involvement in movements for civil rights and liberties—in jails and prisons, picket lines and courtrooms—has taught me more about how law affects people’s lives than have graduate study and law school. Equally important, this book starts with the experiences of people whose lives have helped to shape our Constitution’s meaning over the past two centuries. Each person’s story forms the backdrop to a Supreme Court decision that resulted from some personal decision to take a stand. These stories, which are rarely told in the Court’s opinions or in books on constitutional history, help us to understand the connections between individuals and the historical forces that shaped their lives and, in turn, shape our own.

  Let me also explain why, unlike most writers of constitutional casebooks or histories, I have focused on relatively few cases—I examine only eighty-five in some detail—and have filled in their backgrounds with political, economic, and social history. This book was not designed to be encyclopedic or exhaustive in coverage, but to illustrate the connections of law and politics in areas of civil rights and liberties. I have left out many important cases and have slighted important issues like capital punishment and voting rights. One reader of this book in manuscript form professed “shock” that I left out the Pentagon Papers and Watergate Tapes cases. Other readers will surely wonder why I failed to discuss one or more of their “favorite” cases. I can only reply that these omissions, however painful for me and puzzling for readers, reflect my decision to pursue greater depth in coverage at the expense of breadth. The brief sketches I included of every Supreme Court justice from John Jay to Samuel Alito and the personal stories of the litigants in landmark cases took up space that a different author might have used for more case citations or doctrinal exposition. When you finish this book, I hope you will feel that you met some real people in its pages—some admirable, some not—and perhaps some whose examples you may follow in your own life. That, to me, is what our Constitution’s history is about: the people whose lives have given it meaning over the years since it became our nation’s charter.

  Finally, let me thank some of the many people who helped make this book come to life. My agent, Sandy Dijkstra, found my editor, Jane von Mehren, whose meticulous and thoughtful editing has improved the book immeasurably. Bill Bookheim and Linda Weathers of the California Western Law School library were invariably helpful, as were Larry Cruse and Renata Coates of the UCSD library. Jeff Fritsch and Mike O’Hagan solved the computer problems that seem to plague me more than anyone else I know. My discussions over the years with many colleagues—including Ken Karst, Michal Belknap, Glenn Smith, Nadine Strossen, and Harry Hirsch—planted seeds of thought that have finally sprouted in this book. I have also learned much from the works of scholars like Leonard Levy, Don Fehrenbacher, Richard Polenberg, Sanford Levinson, Mark Tushnet, G. Edward White, Richard Kluger, and David Garrow. On the home front, my wife, Bonnie Fox, took care of our two girls, twenty-odd pets, and me while I worked on this book. She is a wonderful person and shares the values that make my life meaningful. Our daughters, Haley and Maya, to whom this book is dedicated, are simply delightful. Now that “Daddy’s book” is done, they will get more time with me, which makes all my work more rewarding.

  SECTION I

  “To Establish a More Perfect Union”

  1

  “Morally Sinful by the Word of God”

  The Constitution of the United States was framed and ratified by who had launched a successful revolution to free the American colonies from British rule. Throughout recorded history, most revolutionaries—those who succeed and those who fail alike—have been determined to uproot and replace the political and legal systems against which they fought at risk of life and property. The American revolutionaries were an exception to this general rule. They based their opposition to British rule not on rejection of British law but on the repeated failure of the king and his governors to abide by that law. In his final draft of the Declaration of Independence, Thomas Jefferson listed twenty-seven counts of an indictment of King George; thirteen accused the king of violating British law in subjecting the colonies to “tyranny.” Jefferson pointed to “the free system of English laws” as the foundation of governments that derive “their just powers from the consent of the governed.” The men who signed the Declaration were schooled in English law and simply wanted to rid the colonies of arbitrary enforcement of laws they had no voice in shaping.

  British law came to the American colonies with the first settlers, most of whom brought with them a fierce determination to protect the rights of English “freemen” against the religious and political persecution that many had suffered as dissenters in their native land. Not all those who joined the growing wave of immigrants shared this respect for British law; some rejected entirely the notion of secular law and sought to impose on their fellow colonists a “theocracy” of biblical law, while others were “outlaws” who had been exiled for violating criminal or civil laws in England. But the colonists, in the main, wanted to retain the basic forms and substance of a legal system that had governed them and their forebears for centuries.

  British law could not, of course, be lifted bodily from London and the English counties and transplanted without change into “New” England or Maryland or Virginia or any other colonial province. Legal structures and rules that reflected the feudal system of land tenure and servitude in England could not easily be adapted to colonies in which land was plentiful and laborers could bargain with employers over terms of work and wages. Change was necessary, in law as well as in the social relations that law governed. At the same time, tradition had a powerful pull on the colonists who grew up under English law. They copied, often with little change, the complex and archaic system of English courts that enforced the system of royal justice: courts of common pleas, courts of chancery, courts of admiralty, and others with jurisdiction over special matters.

  The colonists also brought with them a judicial system that gave local “justices of the peace” the authority to bring disputants before the bench and settle most criminal and civil matters. These judicial officers, of course, acted in the kingʼs name and could enforce their judgments with the kingʼs power. With few exceptions, they were men of means and stature who were chosen to hold the king’s commiss
ion because they supported the monarchy and protected the “peace” of the community against dissent and disruption. However, these local justices knew most of the people who came before them and rarely applied the full force of the law against those whose transgressions did not threaten the fabric of the community. Most criminal sentences or civil judgments were modest and admonitory rather than harsh and crippling. One reason for this relative “softness” was that labor was scarce in the colonies and anyone willing and able to work was valuable to the community. The exceptions were punishments of those considered unrepentant or irredeemable, or whose crimes violated the biblical injunctions that had been enacted into law. For example, a few men in Massachusetts who were convicted of bestiality or buggery (the old term for homosexual sodomy) were executed, and a handful of women were whipped for bearing bastards. In these cases, sentences were imposed and executed by higher courts than local justices, whose jurisdiction was generally limited to misdemeanors.

  Criminal law in the colonies varied from one jurisdiction to another, but in many respects it provided more rights to the accused than in the mother country. Most colonies allowed defendants to be represented by lawyers, a right not extended to English felony defendants until 1836. During the seventeenth and eighteenth centuries, colonial lawyers developed thriving criminal practices, and courtrooms were often packed with spactactors who flocked to enjoy the thrust and parry of adversarial combat. Waitstill Avery, a prominent North Carolina lawyer, successfully defended Paul Crosby against a petty larceny charge and boasted in his diary that he was quickly “surrounded with a flood of clients and employed this term in no less than 30 actions.”