Redefining the Center

Liberal Decisions From a Conservative Court

How does one explain—and put in historical perspective—last week's ruptures in the conservative phalanx of Chief Justice Rehnquist and justices Scalia, Thomas, Kennedy, and O'Connor? The Court did nothing less than give its imprimatur to affirmative action, protect gay and lesbian sexual expression, and call into doubt the fairness of the administration of the death penalty. Does this represent a surprising new turn for a generally conservative court, or might it exemplify the court's usual occupation of what at least it believes is a politically and culturally "centrist" position? Given that justices O'Connor and Kennedy have scarcely renounced their generally conservative views, it is very likely that last week is less a return to liberalism than a reassessment of where the solid center of American opinion is now located.

Many court watchers did expect O'Connor to give grudging approval to the Michigan Law School's affirmative action plan rather than support the death of all affirmative action. But none predicted that she would write a majority opinion that enthusiastically embraced Lewis Powell's pro-diversity argument made 25 years ago in the Bakke case involving affirmative action at the University of California. Powell spoke only for himself; there was no majority opinion. The Fifth Circuit Court of Appeals, striking down affirmative action at the University of Texas law school in 1996, suggested that Powell's idiosyncratic view had been repudiated by subsequent Supreme Court decisions, some written by Justice O'Connor herself. Now Powell's paean to diversity has been unequivocally endorsed, through O'Connor, by the majority of the court.

Similarly, Justice Kennedy wrote a broad, sweeping, and eloquent majority opinion both striking down Texas's sodomy law and, more importantly, legitimizing gay and lesbian sexuality. Furthermore, a full seven members of the court—only Scalia and Thomas dissented—joined in lifting a death sentence on the grounds that the legal representation received by the defendant was inadequate, a decision of great potential importance.

Illustration by Hugh Syme
Illustration by Hugh Syme


Sanford Levinson teaches at the University of Texas at Austin Law School. The co-editor of a leading casebook in constitutional law and co-author of The American Supreme Court, he has also written Constitutional Faith and Wrestling With Diversity (forthcoming, fall 2003). He was visiting professor at the NYU Law School in 1999-2000.

The Supreme Court's Big Week

Sanford Levinson on the Conservative Court's Liberal Decisions

Laura Conaway on Same-Sex Marriage

Richard Goldstein on the Sodomy Ruling. Plus: Attention, Sodomites!

Lani Guinier on Affirmative Action

Conservatives especially are comparing last week's decisions with those of the Warren Court of the 1960s, in terms of their activism. For conservatives, this is obviously no compliment. But, no doubt, many liberals who do view the Warren Court as a model are unexpectedly singing the praises of the current court, a majority of which assured the Bush presidency in Bush v. Gore. Is the world turned upside down?

The Warren Court created in liberals a belief in the reality and importance of a strong, vigorous—indeed, "activist"—judiciary protecting vulnerable minorities against majority tyranny. An earlier generation of liberals, though, had agreed with then Harvard law professor Felix Frankfurter that such a strong judiciary was the problem rather than the solution. To understand Frankfurter's concerns, it helps to go all the way back to the Constitution's adoption and to ask which groups have been the beneficiaries of judicial activity.

1. Ancient History

The classic defense of what came to be called judicial review—i.e., the power of the federal judiciary to strike down enactments—was given by New York's Alexander Hamilton in the 78th Federalist Paper. The "majority tyranny" that concerned him was that of newly empowered have-nots tempted to take away from the propertied haves.

Most judges agreed with Hamilton. The Bill of Rights that was added to the 1787 Constitution, in 1791, was basically a dead letter until the 20th century. Those who benefited from judicial oversight tended to be property holders—including, not least, slave owners.

The addition of the Fourteenth Amendment changed the story all too little. Through callously restrictive decisions, the court limited the ability of Congress to protect African Americans, even as it expanded, through the rest of the century and into the 20th, the protections offered by the amendment to businesses. The court invalidated in 1918 a federal child labor law on the grounds that its passage exceeded Congress's constitutional power to regulate interstate commerce. This became a dominant motif in many decisions in the mid 1930s, when a string of 5-4 decisions overturned a number of New Deal laws passed at the behest of President Roosevelt.

2. Comes the New Deal and the Warren Court

FDR got no Supreme Court appointments during his first term. That changed dramatically, of course, following his triumphal re-elections in 1936 and 1940. By 1942, he had appointed seven of the nine justices; the new chief justice, Harlan Fiske Stone, though a Coolidge appointee and a nominal Republican, was one of the most vocal dissenters from the activism of the Old Court and its hostility to reformist legislation.

The New Deal Court meant different things to different people. One meaning was a court that gave almost automatic deference to any and all legislative decisions. This strand was most vigorously represented by Frankfurter, appointed in 1939 to succeed Justice Cardozo. Another was suggested in a 1938 opinion by Stone that almost casually upheld a dubious federal regulatory law by saying it was up to Congress, not the court, to decide whether it served the public interest. In a footnote, Stone suggested the court might play a more active role in reviewing legislation that either affected the integrity of the political process itself or, in a famous catchphrase, affected "discrete and insular minorities" who could not adequately protect their interests in the political process. Protecting such minorities against legislative antagonism became the leitmotiv of the Warren Court. The paradigm decision is Brown v. Board of Education, which declared that segregated schools were unconstitutional when required by law, as was the case in the states of the old Confederacy and several border states.

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