Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  The significance of the Carolene footnote was not only in its privileging of civil rights and liberties. It signaled a dramatic shift in the Supreme Court’s agenda. For decades, the court’s focus had been on economic legislation, creating a long conflict over the powers of government to regulate industry and commerce. But, as Stone’s Carolene opinion itself affirmed, that issue was settled. Now a new set of issues would move to the fore—the powers of an ever larger and potentially more intrusive and controlling government to limit individual rights and liberties. As Stone’s Carolene footnote forecast, the court would take on the role of the arbiter, an assertion of judicial power over acts of the legislature and executive that would prove at least as fertile a source of conflict as property rights and the liberty of contract had been. At stake was nothing less than how, in diverse ways, Americans lived their lives as private and public citizens.

  One of the first civil liberties decisions under Stone’s chief justiceship exemplified the divisions such cases could spawn as well as the Supreme Court’s willingness to exert its authority in this new realm. California had passed an “anti-Okie” law designed to stop the stream of indigent immigrants uprooted by the Depression. In considering Edwards v. California, in 1941, some justices held that the California act abridged a “fundamental right” to move freely among the states that was protected by the Fourteenth Amendment, and stigmatized the indigent as an inferior class of citizens. Others believed that the law could be invalidated for interfering with interstate commerce. After lengthy negotiation by Stone, the court divided three ways—but the offending statute was unanimously invalidated. Reflecting on the decision, Stone said he was getting “the job” so organized that “it will run on smoothly if I can get my team of wild horses to pull together.”

  That remained to be seen. The Wall Street Journal noted the justices’ “tendency to fall into clamorous argument even on the rare occasions when they agreed on the end result.” In Stone’s first term as chief justice, nonunanimous opinions ran to 36 percent of the total, the highest in the court’s history to that time. The justices broke their own record the next year with 44 percent of opinions nonunanimous. By 1943, Stone was not referring to a “team of wild horses” but lamenting his “collection of fleas.” He was, he acknowledged, having “much difficulty herding” them.

  How had FDR’s fully packed court split so bitterly? At first that bench had seemed a center of harmony for liberal members. Black was pleased by Frankfurter’s nomination, and Frankfurter and Douglas started out with mutual respect. But as old and new problems confronted the Supreme Court, differences simmered and finally boiled over. The justices divided in myriad ways; inchoate factions formed, only to disappear and reappear again. But the most persistent blocs massed around the court’s dominant personalities, Black and Frankfurter, and their conflict over the fundamental issue of judicial power.

  Each man had taken a different lesson from the reactionary activism of the old court. For Frankfurter, this meant that the justices should not be assertive policy-makers, but approach issues with restraint and balance and give the political branches the benefit of the constitutional doubt. And so Frankfurter and his followers—usually Reed, Byrnes, and Jackson—believed that the Supreme Court should have mainly a negative role, intervening only in clear-cut cases of unconstitutionality and limiting its intervention to narrow, incremental steps. For Black and his bloc—most notably Douglas, with Murphy and Rutledge as regular allies—the trouble with the old court was that it was reactionary, not that it was activist. For liberal causes—social and economic reforms, civil liberties, especially free speech—the Supreme Court should act assertively, marking out clear and bright lines to mandate or restrict government action. Thus, in the case of civil liberties, Black embraced the “preferred position” doctrine with a fervor and rigor that far surpassed Stone’s commitment. But to Frankfurter, “preferred position” was just a “mischievous phrase,” and he scorned the use of a footnote as the “way of announcing a new constitutional doctrine.”

  That neither side had a stable majority of justices only intensified the conflict. Even Frankfurter and Black voted inconsistently, especially as the darkening world scene and the American response to it made issues of individual rights and liberties more urgent and complex.

  RISING BELLICOSITY abroad in the late 1930s inevitably set off a rush of American patriotism. Many states, for example, compelled children to salute the flag at the start of the school day. But for the religious sect of the Jehovah’s Witnesses, to salute the flag was to violate God’s commandment against bowing down to graven images. In 1936, in his Pennsylvania town, a Witness named Walter Gobitis challenged the law. When Minersville School District v. Gobitis reached the Supreme Court four years later, the justices rallied behind Frankfurter’s patriotic opinion that “national unity is the basis of national security” and that the Gobitis children could not be excused “from conduct required of all other children in the promotion of national cohesion.” All the justices signed on but one—Stone dissented, convinced that the court should strike down the law.

  Frankfurter was shocked and pleaded with Stone that the Supreme Court must not hold “with too tight a rein the organs of popular government.” Stone replied that the “vulgar intrusion of law into the domain of conscience” thrust a larger responsibility on the court. In his dissent, Stone cited his own footnote in Carolene to remind Frankfurter of “the importance of a searching judicial inquiry into the legislative judgment in situations where prejudice against discrete and insular minorities” led the government to attempt to compel “conformity of belief and opinion.” But Stone stood alone. Frankfurter conducted no searching inquiry. Behind his mantle of judicial restraint, Frankfurter ratified a law whose purpose he approved. The choice, he wrote to Stone, was “between legislatively allowable pursuit of national security”—the flag salute!—“and the right to stand on individual idiosyncracies.” Frankfurter’s decision for the flag triggered a wave of attacks on “idiosyncratic” Witnesses.

  But two years later, in 1942, Witnesses in West Virginia renewed the challenge to flag-salute laws. By then, Black, Douglas, and Murphy had come to regret siding with Frankfurter in Gobitis. In yet another Witness case, Jones v. Opelika, decided in June 1942, the majority had sustained a licensing tax on the sale of goods, including religious tracts, on the street or from house to house. Black, Douglas, and Murphy had dissented, agreeing with the Witnesses that the tax infringed their religious liberty. The three had added a note to their dissent, writing that Gobitis had been “wrongly decided.” Echoing Stone’s Carolene footnote, they argued that under the Bill of Rights, the government had “a high responsibility to accommodate itself to the religious views of minorities, however unpopular and unorthodox those views may be.” It was in his own dissent in Opelika that Stone coined the phrase “preferred position.”

  In the never-ending roulette of judicial appointments, Jackson and Rutledge had joined the court in time to hear West Virginia Board of Education v. Barnette, the new flag-salute case. Frankfurter’s usual ally, Robert Jackson, surprised him by voting to overturn the Gobitis flag-salute decision, and in fact he authored an opinion that tore Frankfurter’s earlier holding to shreds. Announcing the court’s decision in June 1943, Jackson zeroed in on Frankfurter’s extreme portrait of the flag as a symbol of national unity, concluding that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Five justices concurred with Jackson. Stung, Frankfurter lectured his colleagues on restraint, writing that “this Court’s only and very narrow function” was to decide whether a legislative act had merely “reasonable justification.” The court could not serve as “the primary protector” of liberty, striking down laws by some “undefined destructive power” that “was not conferred on this Cou
rt by the Constitution.” He threw at his brethren the charge New Dealers had leveled at the old court—they were acting like a super-legislature, restricting “the powers of democratic government.”

  Frankfurter suffered further reversal the same year when new justice Rutledge joined the four Opelika dissenters—Stone and the repentant trio—to overturn that decision by a 5-4 margin in another licensing case involving Witnesses, Murdock v. Pennsylvania, with Douglas writing that “freedom of press, freedom of speech, freedom of religion are in a preferred position.”

  On the controversial issue of free speech for “reds,” in Schneiderman v. U.S., a case decided in 1943, Frankfurter voted to approve the Justice Department’s effort to strip citizenship from a naturalized citizen because of his activities as an outspoken Communist. Again the principle was judicial restraint—Congress should be allowed to set conditions for citizenship and the executive to enforce them—but Frankfurter’s instinct was deeply personal, based in his own experiences as a naturalized American. Loyal citizenship, Frankfurter said, could not be reconciled with commitment to the “holy cause” of communism. “No man can serve two masters,” he told his colleagues. But he was in the minority, along with Roberts and—surprisingly—Stone, who not long before in Gobitis had stood alone for nonconformity in belief and opinion. For the majority, Justice Murphy held that the government had not proven that a belief in ideas was incompatible with loyalty to the Constitution. “Criticism of, and the sincerity of desires to improve, the Constitution,” Murphy wrote, “should not be judged by conformity to prevailing thought.”

  But in other cases, Frankfurter had the votes. On the divisive issue of labor picketing, he wrote for the majority in 1941 that in violent situations, free speech lost its meaning “as an appeal to reason” and became “an instrument of force.” Black, Reed, and Douglas blasted him for using the violent acts of a few individuals to suppress the speech rights of thousands of union members.

  Such a sharply divided court producing wildly inconsistent opinions underlined the novelty of the Supreme Court’s immersion in issues of civil liberties. The justices had relatively few precedents to guide them—and those too were often inconsistent. With the court lurching between restraint and activism, at stake was whether it would indeed use its powers of judicial review to assume guardian-ship of the rights and liberties of Americans.

  IN 1944 , the Supreme Court faced its most daunting human rights issue and ended up with a moral disaster. Two years before, early in 1942, as Japanese naval forces were advancing relentlessly east across the Pacific, President Roosevelt had asked Congress for authority to move Japanese Americans, both foreign and native born, out of restricted military areas in California and other states. Over 100,000 Americans—men, women, and children—were forced out of their homes and transported to remote areas, where they were confined in so-called relocation centers by armed guards behind barbed wire.

  Roosevelt was responding to a public aroused by fear and racism that was fed by demagogic commentators like Westbrook Pegler, who wrote, “to hell with habeas corpus until the danger is over.”I Even the magisterial columnist Walter Lippmann threw his prestige behind the rising hysteria, opining that “nobody’s constitutional rights include the right to reside and do business on a battle field.” The official reason of course was the Japanese threat to the West Coast. But the lengthy and distant Hawaiian Islands stood in the path of such an invasion—and, even though the naval base at Pearl Harbor was attacked, authorities made no proposal to “relocate” tens of thousands of Japanese Americans living in Hawaii.

  In an early case, Hirabayashi v. U.S., that challenged a curfew aimed at Japanese Americans before they were interned, a unanimous Supreme Court accepted the military’s justification of the curfew’s necessity, holding that in wartime, the government should be given “wide scope” in “every phase of the national defense.”

  In 1944, Fred Korematsu, who had been convicted of disobeying the relocation order, charged that the entire program violated the Constitution by depriving citizens of their liberty without a shred of due process. Now the court divided. Stone wanted narrowly to affirm the Hirabayashi holding that the justices would not second-guess the military. But Black, while he was ready to rule against Korematsu, bowing once more to the “military imperative,” wanted to make clear in his opinion for the court that only “the gravest imminent danger” justified detention. Meanwhile, Murphy, Jackson, and Roberts all regretted their concurrence in Hirabayashi and planned to dissent, while Douglas was on the fence, even drafting a four-page dissent, before Black, Frankfurter, and Stone teamed up to persuade him to join the majority and to put the Supreme Court’s great authority, here expressed as judicial modesty, behind a racist policy and the creation of American-style concentration camps.

  Black never disavowed his holding in Korematsu, but Douglas wrote in his memoirs that he “always regretted that I bowed to my elders.” He eased that burden somewhat by authoring, late in 1944, an order for the release of a Japanese-American woman, Mitsuye Endo, from a Utah concentration camp. That case was an easy one, as the court’s unanimity showed. It did not challenge the internment program but asked whether Endo could be detained even after the government had conceded her loyalty. Douglas’s answer was clear: “once loyalty is shown, the basis for the military decision disappears—this woman is entitled to a summary release.” But with the war approaching its end and the Japanese threat to the West Coast long since recognized as a chimera, Ex parte Endo could not erase the court’s fateful deference to military authority at the expense of the rights of thousands of loyal Americans. It was, as Murphy wrote in his Korematsu dissent, the “legalization of racism” and would remain a huge blot on the court’s standing.

  STRICKEN IN COURT on a late April day in 1946, Chief Justice Stone died at home a few hours later at the age of seventy-four. For all his qualities as a jurist, Stone had failed to lead his court. Unlike his predecessors Taft and Hughes, Stone was reluctant to use high-pressure tactics to marshal his colleagues or to push them to decision. His mild style allowed the court’s stronger personalities—notably the antagonists Black and Frankfurter—to dominate. As a result, divisions deepened and personal animosities festered. Columnist Max Lerner thought it salutary that the Stone Court, with its sharp, noisy divisions and conflicting judgments, could make no pretense to “Olympian infallibility,” but inasmuch as it retained its power as the ultimate constitutional authority, the Supreme Court’s erratic course, especially in the new domain of civil liberties, made it an uncertain guardian of the people’s rights and freedoms. That was reflected in its fading prestige. By 1946, the court’s disharmony was public and notorious, and when President Truman sought Stone’s successor, he looked for a man who would “smooth over the discords on the highest bench.”

  Two months after Stone’s death, Truman chose Fred Vinson for the center chair. Vinson was a natural choice for the Missouri politician who had succeeded FDR only a year before. Born in a Kentucky hamlet fifty-six years earlier, Vinson had served six terms in the House and five years as a federal judge before taking key positions overseeing the wartime economy. Earlier, in a bipartisan spirit, Truman had named Republican senator Harold Burton to the Supreme Court, following Justice Roberts’s resignation. In 1949, Truman appointed two more justices, both Democrats—his attorney general, Tom Clark, a protégé of the Texans like Sam Rayburn who presided over the House, and Sherman Minton, senator from Indiana.

  The new justices had much in common. They were all close friends of the president—Vinson and Clark were his poker-playing pals—and became his personal picks, made with little consultation. They all supported stronger, more effective government while urging judicial self-restraint. In general they did not like to challenge presidential and congressional authority. In his seven years as chief justice, Vinson never voted to hold a congressional statute unconstitutional. The new justices produced, for the first time, a stable majority for Frankfurterian rest
raint. At a time of increasing conflict over domestic communism, this brought a series of victories in the government’s campaign to suppress Communists and their fellow travelers, cast in Frankfurterian terms of deference to Congress’s determination that, as the 1950 McCarran Act declared, the “secret, conspiratorial” Communist party was a “clear and present danger to the security of the United States and to the existence of free American institutions.”

  Still, the arrival of the Truman justices did little to curtail the court’s divisions. None of them—certainly not Vinson—was a match for the powerful personalities of the Roosevelt Court, whose feuds were fed by a vicious circle of doctrinal differences and personal hostility. And Frankfurter, with his cautious balancing, was often at odds with his Truman colleagues, who were inclined almost invariably to rubber-stamp the actions of the elected branches. He would not endorse, as Vinson did in Dennis v. U.S. in 1951, the prosecution of twelve Communist leaders for violating the 1940 Smith Act, which made it a crime to advocate violent revolution; all he would say was that “Congress was not forbidden by the Constitution to pass” that law. He showered his new brethren with harangues and snide remarks as he had his fellow New Dealers, once nearly provoking amiable Fred Vinson to fisticuffs. This would lead to a tentative—and temporary—rapprochement with Black by the early 1950s, but Frankfurter continued to give Black ’s ally, William Douglas, the silent treatment for long stretches of time.