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.
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.
Popular wisdom—especially among lawyers—portrays the court as a heroic voice in the wildness coming to the rescue of an abandoned and beleaguered racial minority.
However, as University of Texas professor Lucas A. Powe Jr. argues in The Warren Court and American Politics, that court is best understood as implementing the perceived political values of a national majority against parochial localities. By 1954, after all, Harry Truman had first integrated the armed forces and, more to the point, successfully won re-election even as many white Southerners bolted the Democratic Party over the issue of civil rights. The new Republican administration of Dwight Eisenhower had joined the Truman administration in calling for the overruling of the 1896 decision, Plessy v. Ferguson, that had legitimized the so-called “separate but equal” standard. Government briefs emphasized the fact that the United States was being relentlessly hammered in Cold War polemics because of segregation in the South. African Americans were increasingly an important part of national, even if not Southern, politics. Most of the nation believed that it was time for the South to recognize that the Civil War had been lost and that its black citizens were entitled to fair treatment.
Brown, in fact, was relatively unimportant in changing the South. Far more significant was the rise of the civil rights movement and the passage and enforcement of the Civil Rights Act of 1964, which, by definition, required the strong support of both the House and Senate—which had to break a Southern filibuster—and the president. The Warren Court, then, is best perceived as an active part of a majority coalition that joined in support of a New Frontier and a Great Society. The fact that the Warren Court justices—nominated largely by Democratic presidents and confirmed almost exclusively by Democratic Senates—reflected the core political values of what was then the dominant majority is scarcely surprising. Long rule by a single party entails the partisan entrenchment of its adherents in all governmental institutions, most definitely including the judiciary.
3. Moving Toward the Present
The hegemony of the Democratic Party at the presidential level ended in 1968, though it took until 1980 for its collapse to be registered in the Senate and until 1994 for the Republicans to gain control of the House of Representatives. In any event, seven of the nine current justices owe their appointments to Republican presidents Ford, Reagan, and George H.W. Bush. The court, not surprisingly, took on a decidedly different tone, especially in cases involving congressional power and the rights of criminal defendants. (The Warren Court had gone out on something of a limb with regard to the latter, genuinely unpopular, group; suspected—and even more so, convicted—criminals found themselves sawed off the limb in subsequent years.)
So what might explain last week’s spate of “liberal” decisions? They are best understood in terms of how the court—and especially Justice O’Connor—perceives the current American center of gravity on such matters. With regard to affirmative action, the court—which is, after all, only permitting affirmative action rather than requiring it—is basically vindicating a national majority, especially among elites, that accepts relatively “soft” and opaque affirmative action—but not “quotas” or the use of ham-fisted point systems that are too transparent in the weight given to race or ethnicity. (And if local majorities, as has happened in California or Washington, ban affirmative action completely, that will clearly raise no constitutional problems.) Two crucial briefs were submitted in the Michigan law school case, one by 65 major American corporations, the other by a plethora of military leaders. Both testified to the importance of affirmative action in providing businesses and the military with minority executives and officers. One can be certain that most of the corporate CEOs and retired military officers who signed the briefs are Republicans, and that is just the point.
With regard to the second issue, gay and lesbian rights, the court realizes that 2003 is already far distant from 1986, when the court in Bowers v. Hardwick upheld Georgia’s anti-sodomy law. The homophobia exemplified by such statutes is increasingly disdained by most Americans. (In his dissent, Clarence Thomas indicated that he would vote against such laws were he a legislator.) In 1986, after all, 24 states had anti-sodomy laws. By now the number is down to 13, and enforcement is rare. Even the 13, including Texas, are more complicated than one might think. Austin, the state’s capital, several times elected a gay representative to the state legislature, and its elected sheriff is lesbian.
So the Lawrence sodomy decision fits the Warren Court model of actively protecting the rights of a minority once it has demonstrated it is not generally reviled, but is well on its way to general acceptance and integration. After all, the lesbian daughter of the vice president of the United States is herself a member of the Bush administration. It is no coincidence, moreover, that Justice Kennedy cited criticisms of Bowers by libertarian Republicans Charles Fried, Ronald Reagan’s solicitor general, and Judge Richard Posner of the Seventh Circuit Court of Appeals.
In a recent book, New Constitutional Order, Georgetown professor of law Mark Tushnet argues that the contemporary Supreme Court, observing the political gridlock caused by divided government, has a fair amount of freedom to make its own guesses as to how far it can go in imposing its own favored political visions. For the conservative majority, this has included reining in federal programs passed by Democratic Congresses and, therefore, presumably put in doubt by the electoral sea change of 1994 and, for that matter, Bill Clinton’s repudiation of the era of “big government.” There has been nothing restrained about the Rehnquist Court, but it would be as much of a mistake to view its members as isolated conservatives as it was to view the Warren Court as isolated liberals. Courts are always reflecting the general temper of their times.
All of the justices are more than happy to push their visions of what would “establish Justice” and bring about a “more perfect Union,” however much they disagree about the particulars. In recent years, conservatives have generally prevailed; last week, the stars were aligned for a series of liberal decisions (written by members of the generally conservative majority). The common motif, though, is a highly self-confident group of judges unafraid to exercise their power.
Even the court’s willingness to look more carefully at the administration of capital punishment can be understood in the context of increasing public concern about the kinds of problems that led former Republican governor George Ryan of Illinois to lead the calls at least for moratoriums on, if not (yet) outright abolition of, capital punishment.
Since Tushnet wrote his book, divided government has ended, though only by the slimmest of margins. One might, then, regard last week’s decisions as a last gasp of moderation before a conservative tide of new Bush appointees, selected to reinforce the now more isolated Scalia and Thomas, adopts the political agenda of the New Right. But even if Bush wins in 2004 and Republicans retain the Senate, he might hesitate to appoint judges likely to overturn decisions that enjoy significant support among many Republicans (including, as in the case of the CEOs, major contributors to the Republican Party). And, of course, Democrats are actively signaling a willingness to do whatever it takes to prevent a New Right takeover of the judiciary.
The battle will undoubtedly continue, the two constants being first that neither side truly wishes a judiciary that is restrained across the board and second that the court, as Peter Dunne suggested a century ago, is always attentive to general cultural developments—and election returns.