Eisenhower’s last two justices would give the president little cause for disappointment. Charles Whittaker, named to replace Stanley Reed in 1957, was a “self-made man” who grew up on a hardscrabble Kansas farm where he augmented the family income by trapping animals for their hides. Even though he never received a high school diploma, Whittaker worked himself into a Kansas law school, a Kansas City law firm, and the Republican leadership of the state. In his scant five years on the court, he closely aligned with the conservatives.
Potter Stewart, who replaced Harold Burton in 1958, had sterling GOP roots—his father was a popular Republican mayor of Cincinnati. Stewart attended Hotchkiss, Yale, and Cambridge, then worked as a Wall Street lawyer. After serving in World War II, he joined a leading Ohio firm and dabbled in politics before Eisenhower appointed him to a federal appeals court in 1954. Only forty-three when he reached the Supreme Court, he quickly won the reputation of a “swing voter,” though he swung most often with the conservatives. He was, above all, a pragmatist who preferred to avoid constitutional questions and, when they were unavoidable, to decide them on narrow grounds.
BY THE END of the 1950s, Earl Warren’s court was not yet completely the Warren Court. Much to the dismay of the Republican right, as well as Southern Democrats opposed to Brown, Eisenhower’s nominees were, as a whole, more liberal and activist than the Roosevelt and Truman justices they replaced. Southern senators delayed even Potter Stewart’s confirmation because of his support for Brown, with South Carolina’s Strom Thurmond charging that Stewart “believes that the Constitution of the United States can be amended by the Supreme Court.” Still, through much of the 1950s, the conservative majority remained in the ascendant. Black and Douglas expressed their increasingly absolutist libertarian views most forcefully in dissent, scoring the Frankfurter-Harlan “balancing test” of security and liberty as “closely akin to the notion that neither the First Amendment nor any other provision of the Bill of Rights should be enforced unless the Court believes it is reasonable to do so.”
Yet Black’s tenacity, Warren’s leadership, and the government’s extremism in the pursuit of security won several crucial victories for civil liberties and established the Supreme Court’s resolve to confront government power in defense of the Bill of Rights. On June 17, 1957, which the right wing would call “Red Monday,” the court struck blows at four key pieces of the apparatus used to ferret out the “disloyal”: the abusive inquisitorial powers of the House Un-American Activities Committee; a state attorney general acting as a one-man committee to investigate academics and other alleged subversives; the anti-Communist Smith Act, which the Vinson Court had upheld against party leaders in Dennis; and the State Department’s inquiries into the loyalty of its own employees. To defend civil liberties in these cases, the Supreme Court turned the powers seized by John Marshall and extended by generations of conservative justices to progressive purposes, asserting its authority over both federal and state proceedings and over the actions of both the legislative and executive branches of the national government.
Red Monday raised the biggest anti-court furor in Congress since the 1930s, only now it was conservatives who were decrying liberal excesses, Republicans who introduced legislation targeting the Supreme Court’s power. Senator William Jenner of Indiana proposed the elimination of the court’s jurisdiction over cases of loyalty or subversion, denouncing “the spectacle of a Court constantly changing the law, and even changing the meaning of the Constitution.” The Supreme Court had become “a legislative arm of the Government; and many of its feats are subject to no review.” Only by a feverish effort were Democrats, thrust into the role of defenders of judicial supremacy, able to block the flood of court-curbing bills.
NOT LONG AFTER the adoption of the Fourteenth Amendment in 1868, the Supreme Court had narrowed the broad promise of its due process and equal protection clauses to little more than a defense of property rights. Almost a century later, Brown and other desegregation cases signaled a dramatic shift, with the court moving, for the first time, to apply equal protection in its intended form, as a shield for African-American rights against state power. But that clause, as the Reconstruction Congress had framed it, had a wider potential to secure all constitutional guarantees fully and equally to all citizens. Such rights were to be asserted against the states, a principle the court had promptly undermined in the Slaughterhouse Cases with its pinched construction of national citizenship, which insulated the states from most rights claims based on the federal Constitution.
For decades after Slaughterhouse, conservative justices, over the objections of dissenters like the first Justice Harlan and Brandeis, had monotonously spurned opportunities to broaden the “privileges and immunities” of United States citizenship by “incorporating” the guarantees of the Bill of Rights into the Fourteenth Amendment, which would make them enforceable on the states. Only in 1925, in its Gitlow decision, did the Supreme Court acknowledge, almost in passing, that freedoms of speech and press were national rights under the Fourteenth Amendment—even while it upheld Benjamin Gitlow’s conviction for publishing dangerous words. Since then, the court had slowly extended federal protections on a piecemeal, case-by-case basis, resisting Hugo Black’s calls for total incorporation of the Bill of Rights as, he argued, the Fourteenth Amendment’s framers had intended.
While not written in the Constitution’s first ten amendments, no right was more fundamental to democratic self-government than the right to cast an effective vote. Over time more and more Americans had moved into cities, only to find themselves grossly underrepresented in their state legislatures. In Tennessee, a rural county with 2,340 voters had a full seat in the legislature, while Memphis, with 300,000 or more voters, had only seven. Similar dire examples had long abounded across the country, including California. There, when liberals and laborites in 1948 had sponsored a measure to align voting power more closely to population, Governor Warren had opposed it. But now on the court it was clear to him that such “mis districting” had a strong anti-democratic impact, with special damage to minority representation. Moreover, the ill was self-enforcing and self-perpetuating—legislators who overrepresented rural voters would hardly choose to abandon their built-in advantage by empowering urbanites.
Since the 1930s, over a dozen suits against malapportionment had been filed in the federal courts. In 1946, one of them, Colegrove v. Green, had reached the Supreme Court, which dismissed the action. Relying on a tradition with roots in Roger Taney’s 1849 Luther v. Borden opinion that the court should not involve itself in “political questions,” Frankfurter had argued then that malapportionment was a problem of “a peculiarly political nature,” and courts “ought not to enter this political thicket.” The remedy was beyond the competence of the judiciary—it must ultimately be “the vigilance of the people in exercising their political rights.” But how could “the people” practice that vigilance when they were so grossly underrepresented as to be effectively disenfranchised?
Sixteen years later, under Earl Warren’s leadership, the Supreme Court was prepared to make another malapportionment case, Baker v. Carr, what the chief justice would later call the most important decision of his tenure. Even as Harlan echoed Frankfurter in urging that the court’s “aloofness from political vicissitudes” had “always been the mainspring of its stability and vitality,” Warren was convinced that the court’s timidity had “made change hopeless.” The chief justice built a fragile coalition, then saved it from collapse when conservatives nearly bolted in the face of Frankfurter’s counterattack. Brennan, writing for a 6-2 majority, held that federal courts had jurisdiction over cases of alleged malapportionment and could order state legislatures to redraw district lines on a fair basis. “A citizen’s right to a vote free of arbitrary impairment by state action” was guaranteed by the Constitution, Brennan wrote; when “state power is used as an instrument for circumventing a federally protected right,” the issue was not political but constitutional. A year l
ater, in Gray v. Sanders, the court laid down the principle for fairness: political equality, equal representation—“one person, one vote.” In victory after Baker, the chief justice wrote Brennan, “It is a great day for the Irish,” then thinking again, Warren crossed out “Irish” and wrote in “country.”
Baker v. Carr was also Felix Frankfurter’s swan song. In his dissent, he lamented the “massive repudiation of the experience of our whole past” in the Supreme Court’s assertion of a “destructively novel judicial power” and feared that the court would sacrifice its authority “as the ultimate organ of ‘the supreme Law of the Land’ ” by abandoning its “complete detachment, in fact and in appearance, from political entanglements.” Within five months of this climactic appeal for restraint, the old justice, disabled by a stroke, retired from the high bench.
RARELY HAS THE arrival of a single new justice given a more decisive tilt to the Supreme Court’s balance than that of Arthur Goldberg, named by John Kennedy as Frankfurter’s successor in August 1962. By taking Frankfurter’s seat, Goldberg unleashed the Warren Court’s activism. A labor lawyer from Chicago who had served as JFK’s secretary of labor, the new justice would give almost unvarying support to civil liberties and civil rights claimants and become the decisive fifth vote in the activist bloc that included Black, Douglas, Brennan, and Warren himself.
But John Kennedy, who paid little attention to the workings of the Supreme Court, was really not that kind of passionate, committed liberal. His first appointment to the court, five months earlier, better reflected his personality and interests. Byron “Whizzer” White, named in April 1962 to replace Charles Whittaker, was a former All-American football player from Colorado and a vigorous supporter of JFK in the 1960 campaign. He was rewarded with a job in the Justice Department as a deputy to the president’s brother, Attorney General Robert Kennedy, with mainly administrative duties. Like JFK, White was young, vigorous, and pragmatic. Kennedy knew little about White’s judicial philosophy—or whether he even had one. White himself, when asked by a reporter after his nomination whether he would be a liberal or a conservative justice, replied, “I never know what people mean by those words.” As Robert Kennedy recalled the decision-making, “You didn’t think how he would vote in a reapportionment case or a criminal case. You wanted someone who, in the long run, you could believe would be doing what you thought was best. You wanted someone who agreed generally with your views of the country.” White would prove a staunch foe of racial and sexual discrimination, but on the civil liberties issues that would define the Warren Court’s peak, he most often sided with the conservative bloc that, after Frankfurter’s retirement, was made up of Tom Clark, Harlan, and Stewart.
But with Goldberg’s appointment, the activists were in the saddle and the court set off on an era of constitutional innovation unmatched since the days of John Marshall. “With five votes, you can do anything around here,” Brennan liked to say. Like the Marshall Court, Earl Warren’s bench vigorously asserted judicial power in order to reshape the Constitution to its specifications. But where Marshall voided only one act of Congress on constitutional grounds in his thirty-five-year career—albeit momentously in Marbury v. Madison—the Warren Court struck down 16 federal statutes between 1963 and 1969. And while Marshall aggressively wielded judicial review to secure federal supremacy over the states, between 1789 and 1864, the Supreme Court nullified only 39 state and local statutes. Between 1963 and 1969, the Warren Court did so 113 times, at a rate approached only by the Taft Court between 1921 and 1930.
The Warren Court’s unprecedented use of judicial review inevitably provoked intense controversy, and not only from Southern racists and anti-Communist fanatics with their “Impeach Earl Warren” placards and handbills. Since the 1790s and especially since the Civil War, conservatives had praised the Founders’ wisdom in supposedly establishing a judiciary empowered to block rampant majorities and cheered when the Supreme Court used that authority to defend the rich and powerful. Now that the court was, for the first time in its long history, consistently using that power to expand liberty and equality, conservatives angrily pointed out that judicial review had no basis in the Constitution. Some of the most trenchant criticism of such activism came from within the court itself, with a frequent dissenter like Justice White charging that the liberal majority was exploiting the power of review to invent “new law and new public policy.”
Much of what the Supreme Court achieved was indeed new, but liberals, defending a power they had once condemned, argued that the justices were simply making explicit constitutional guarantees of equal rights that politicians and the court itself had long ignored or betrayed. The Warren Court was defining those rights with rigor and applying them to government at all levels. In cases like Brown and Baker, the court ventured into areas of simple justice where elected officials feared—or never wished—to tread. Far less hesitantly than the Roosevelt Court, the Warren Court challenged the high bench’s long conservative legacy in civil rights and civil liberties. For the first time, the Supreme Court was in the vanguard of change, driving the forces of reform both in government and at the grassroots in the 1960s. Decisions like Brown gave impetus to African-American activism that in turn pressured the political branches to finally deliver on the promise of civil and political equality for blacks. The Warren Court’s championing of equality and individual liberty galvanized a host of other “liberation” movements that won key legislative victories against public and private discrimination. Its dedication to free speech widened the potentialities of political argument and protest, most notably in the campaign against the Vietnam War. So sweeping was the Warren Court’s commitment to reform, so bracing its leadership for change, that many liberals not only forgot their past objections to judicial power, but were seduced into the belief that the court, not the political branches, with their fickle, opportunistic politicians and swayable constituencies, was the best constitutional vehicle to extend and protect progressive gains into the future.
But looking to the Supreme Court for continuing liberal leadership was always a bad bet. Legal scholar Alexander Bickel, who had clerked for Felix Frankfurter and was no friend to judicial activism, warned that what he termed the Warren Court’s results-oriented “subjectivity” in decision-making could easily, with a switch in personnel, be turned against the precedents the court’s liberals were so forcefully laying down. After all, the Warren Court itself overturned forty-five precedents during the chief justice’s sixteen years on the bench. In the absence of “durable principles,” Bickel doubted that “ judicial supremacy can work and is tolerable in broad areas of social policy.” The combination of the Supreme Court’s institutional conservatism, temporarily overridden by Brennan’s omnipotent “five votes,” and the instabilities promoted by the judicial roulette of court appointments all but ensured that Warren Court liberalism would be threatened with backlash and reversal. The Warren Court’s progressive advances were indeed luminous but they were also, emphatically, exceptions to the historical rule of a conservative supreme judiciary. To secure and broaden those advances would require not lawsuits but the hard work of political organizing and persuasion. It would require political, not judicial, leadership.
IN THE MEANTIME, the Warren Court of the 1960s continued to break new constitutional ground. During those years, the justices enlarged the scope of speech and press freedoms until it approached, though it did not yet reach, William Douglas’s ideal “that the First Amendment allows all ideas to be expressed—whether orthodox, popular, offbeat, or repulsive.” The Warren Court also recognized rights that were not stated explicitly in the Constitution. In 1965, in Griswold v. Connecticut, which struck down a state law that banned birth control—a relic of the nineteenth century and the Society for the Suppression of Vice—Douglas found that the law violated a woman’s “right to privacy.” That right, he conceded, was nowhere mentioned in the Constitution, but—pointing to the First, Third, Fourth, Fifth, and Ninth Amendments—he m
aintained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Six other justices, including White, Harlan, and Clark, joined the court’s judgment, though all but Clark departed from Douglas’s reasoning. Goldberg’s concurrence located the right to privacy in the Ninth and Fourteenth Amendments, while Harlan’s relied exclusively on the Fourteenth’s due process protection of liberty.
For the leading activist of the old Roosevelt Court, all this was too much—or nowhere near enough. Hugo Black was a civil liberties absolutist but constitutional fundamentalist, and he was growing disenchanted with the freewheeling activism of the Warren Court. “I like my privacy as well as the next one,” he wrote in a dissent to Griswold that echoed the views of his former antagonist, Felix Frankfurter, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Without that, the court was arbitrarily using “the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive” in an attempt to “keep the Constitution in tune with the times.”
But Black fully supported the Supreme Court’s stepped-up nationalization of the Bill of Rights, its use of the Fourteenth Amendment to make a panoply of constitutional guarantees binding upon the states. In the historian Peter Irons’s words, the justices turned “the Bill of Rights into a powerful weapon against government officials—from police officers to presidents—who failed to treat people fairly and equally.” Most controversial was a long series of decisions that defined, expanded, and nationalized the procedural rights of suspected or accused criminals. The decisions addressed specific violations of due process too common in the states: evidence seized by unlawful entry or without probable cause, forced confessions, poor men and women defending themselves in court. In Mapp v. Ohio in 1961, the Fourth Amendment right against illegal search and seizure was nationalized, and the court developed rules to exclude from trials evidence obtained illegally. In Gideon v. Wainwright in 1963, the court held that the Sixth Amendment right to counsel was fundamental, requiring the states to appoint lawyers for indigents in criminal trials. The next year, in Escobedo v. Illinois, the court decided that the right to counsel became operational when police began to interrogate a suspect. Miranda v. Arizona, in 1966, made the constitutional requirements for police specific: before a suspect could be questioned, he had to be advised of his rights to counsel and warned against self-incrimination. If he was not given what came to be known as the Miranda warning, anything he said could not be used against him in court.
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 19