The most important issue of 2016. The Supreme Court. I think we all know the importance of the SCOTUS. Nonetheless, I thought I’d compose a diary about it. In part I got the idea from this comment thread: www.dailykos.com/… Plus, I’ve been writing about all the circuits (next up: the 6th Circuit), so why not add something about the nation’s highest court, especially in light of this election season?
Should Hillary Clinton win, and get a Democratic Senate, we can get the first liberal SCOTUS majority in 50 years. And only the second truly liberal SCOTUS in our history. I don’t think we can overstate the importance of that. We all know the recent cases (Citizens United, Hobby Lobby, Shelby County v Holder, NFIB v Sebelius, King v Burwell, Obergefell v Hodges, Friedrichs v CTA, Zubik v Burwell), but with these diaries, I thought to add some less recent cases, and less recent justices, to trace the evolution of the SCOTUS and show how brief the liberal moment was, and how much we could do with another majority. (Not to mention the various twists of fate that could have made things much worse. Or better.)
I started writing one diary, to go on an 80-year journey from the Depression to the present. That diary began to get too long, so I decided to split it into two diaries. Here’s part 1, from the Depression to the 70s, when Nixon ended the liberal majority.
More below the fold.
The Roosevelt New Deal
The Supreme Court proved to be the biggest obstacle to the FDR New Deal. From 1933-1937, the SCOTUS struck down many programs as unconstitutional, using an interpretation of the law that judges like Clarence Thomas are trying to revive. Back then, the Court was composed of a liberal minority: Louis Brandeis (Wilson), Harlan Stone (Coolidge), Benjamin Cardozo (Hoover), usually joined by the Chief Justice Charles Evans Hughes (Hoover). [Side note—Sonia Sotomayor cited Cardozo as her favorite justice.] The conservatives were the Four Horsemen: Pierce Butler, George Sutherland (both Harding), Willis Van Devanter (Taft), James Clark McReynolds (Wilson), and usually they were joined by Owen Roberts (Hoover), striking down the New Deal on a 5-4 vote. Sound familiar?
Also of note: McReynolds was the worst of the lot, and without a doubt one of the worst men to ever sit on SCOTUS. He was a virulent racist and anti-Semite who refused to even stand next to Louis Brandeis for the Court portrait, since Brandeis was Jewish. He was one of two dissenters (Butler was the other) in the infamous Scottsboro Boys case. He was horrible. There were none worse than he. Ian Millhiser describes him here: thinkprogress.org/...
By 1937, Roosevelt had grown frustrated with the SCOTUS, and proposed to expand the size—he would appoint one new justice for every justice over age 70, until the court reached 15 members. Thus, he could pack it with New Dealers. Congress of course shot the plan down, but it turned out to be unnecessary: 5-4, the Court upheld the minimum wage and Social Security under the Constitution. Owen Roberts had changed his mind and voted with the liberals.
Hmm...major social programs being upheld because conservative Justice Roberts changed his mind late in the game...doesn’t THAT sound familiar?!
The Roosevelt Court
FDR would now get his chance to overhaul the Court like no president ever has, other than George Washington. After losing on minimum wage and Social Security, Van Devanter threw in the towel and retired. FDR named a strong New Dealer, Alabama Senator Hugo Black, who quickly became the Court’s most liberal member. Sutherland stepped down the next year, and was replaced by Solicitor General Stanley Reed. Also in 1938, Benjamin Cardozo died. FDR sought a Jewish replacement for the Jewish Cardozo—hence, Harvard Law Professor Felix Frankfurter, an ACLU founder who defended Sacco and Vanzetti. (Imagine THAT getting confirmed now!)
In 1939, Brandeis retired at age 83. Frankfurter already filled the “Jewish seat,” and FDR named SEC chair William O. Douglas to succeed Brandeis. Butler died later that year, and Roosevelt replaced him with Attorney General Frank Murphy. In 1941, Hughes and the odious McReynolds called it quits. To replace Hughes, FDR elevated Stone to chief and appointed the new attorney general, Robert Jackson, associate justice. McReynolds was replaced by James Byrnes. But Byrnes was a politician, hated the SCOTUS, and left after 1 year. Wiley Rutledge took his place.
That’s 8 Supreme Court appointments in 6 years. Only Washington named more justices. That record will stand for a while. But what kind of justices did they all become?
Murphy became very, very liberal. He wrote a vigorous dissent in Korematsu v US, the Japanese interment case, condemning the legalization of racism. Rutledge, too, became a strong liberal. And one of his law clerks later became a liberal justice himself—John Paul Stevens. (See my DC Circuit diary for more about that.) Meanwhile, Reed tended to be more conservative, though continued backing the New Deal. Frankfurter, despite his liberal beginnings, became quite conservative as a justice, clinging to the idea of judicial restraint even as the nature of the cases before him changed (fewer economic, more social issues cases). Jackson tended more conservative too, but held a different philosophy than Frankfurter. Jackson was always more concerned with the real-world applications of his decisions, rather than adherence to an idea of judicial restraint. He wrote the famous opinion in the Youngstown Steel Mill seizure case, ruling against the Truman seizure. He divided executive power into three categories—when he is acting with the express will of Congress, when he acts against the will of Congress, and when Congress has not weighed in. (Though technically a concurrence, Jackson’s opinion has gained acceptance as though it were the decision of the Court.) Meanwhile, the longest-serving of FDR’s justices, Black and Douglas, became liberal lions, though for different reasons. Black was an originalist, and Douglas sought to maximize individual freedom. (Note—Black’s originalism was actually principled, unlike that of Scalia or Thomas.)
In fact, William Douglas was probably the most liberal justice of all time. More than Marshall. More than Brennan. Douglas was something else. He was the man who said “trees have standing,” he was so pro-environment. With Black, he defended the rights of Communists in the McCarthy era when no one else would. He tried to stop the execution of the Rosenbergs. Alone, he said that draft-card burning is protected free speech, even as the rest of the justices criminalized it. Many statistical measures bear this out: Douglas was the most liberal justice in US history.
I can’t do justice with my brief descriptions here. I highly recommend Noah Feldman’s masterful book about Black, Frankfurter, Jackson, and Douglas. The Battles and Triumphs of FDR’s Great Supreme Court Justices.
I should mention one other case from this time: the flag salute. Some local and state governments had passed laws requiring flag salutes (e.g. recitation of the Pledge of Allegiance) every day in school. The religion of Jehovah’s Witnesses forbids saluting the flag, however, and the Court had to answer: could they be required to salute the flag despite their religion?
In 1940, the Court upheld the mandatory flag salutes. Frankfurter wrote for the majority, which was joined by all the other Roosevelt appointees (Black, Douglas, Reed, Murphy) as well as Hughes, Roberts, McReynolds. Only Stone dissented. Frankfurter made a decent argument, but it turned out badly—it wound up legitimizing terroristic acts against Jehovah’s Witnesses, and caused some local governments to enact laws against Jehovah’s Witnesses. The liberal community nationwide strongly criticized the decision. All of that convinced Black, Douglas, and Murphy to change their minds. In 1943, they took a virtually identical case and voted against the required salute. Their votes plus Stone only made four, and Reed, Roberts, and Frankfurter stuck to their original positions. Hughes and McReynolds had retired, however, and Jackson and Rutledge had arrived. They voted with the liberals, and Jackson wrote for the majority. It is here that he delivered the famous line: “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.”
From Roosevelt to the 60s
Even so, FDR did not appoint a liberal majority in the way we’d think of one. By 1945, the liberal wing consisted of Black, Douglas, Murphy, Rutledge, but they needed a vote from a more conservative justice to prevail—Reed, Jackson, Stone, Roberts, Frankfurter. And in 1945, Truman became president and began appointing justices. Though Truman was generally a decent president, his justices were not.
In 1945, Roberts retired, and Truman appointed GOP Senator Harold Burton to replace him. Stone died in 1946, and Truman named his Treasury Secretary and close political ally, Fred Vinson, as Chief. In 1949, Murphy and Rutledge died within months of each other. Attorney General Tom C. Clark and former Senator Sherman Minton replaced them. All four Truman appointees tended to be conservative.
It should be noted that conservative in this context is somewhat different from conservative today. Unlike modern conservative, all these justices believed government had authority to enact pro-worker, pro-middle America laws and programs. Not one would have ruled, as today’s conservatives would, that right-to-work is constitutionally mandated. The fact that Stone seemed liberal in the 30s but conservative in the 40s says something about the shift that took place. The Roosevelt Court abolished the “white primary,” the primary elections where only whites could legally vote, by 8-1 margin, Roberts dissenting. Wickard v Filburn was a very important decision expanding congressional power under the Commerce Clause. Shelley v Kraemer eliminated the “restrictive covenants” that barred blacks from buying homes in traditionally white neighborhoods (think A Raisin in the Sun). Jewell Ridge Coal Co. v UMW held 5-4 that the time it takes miners to travel underground counts as work and must be paid as such. Reed joined the liberals. This case drove a permanent wedge between Black and Jackson, as Jackson said Black should have recused himself. Jackson said so publicly, a slight that Black never forgot or forgave. In fact, Black helped to prevent Jackson’s appoint as Chief when Stone died.
This was the makeup of the Court when Brown v Board of Education appeared—5 FDR, 4 Truman. It was heard in 1952, and the justices had a very hard time agreeing on a decision. Frankfurter’s idea was to strike down segregation, while allowing school districts time to integrate. But he needed time to convince the other justices, so he contrived a reason to delay the decision and re-argue the case next term. And then fate intervened—the staunch segregationist Vinson died of a heart attack. Vinson was so hated that one justice said his death was proof that God exists. Eisenhower, of course, named California Governor Earl Warren as Chief.
Warren proceeded to use his political skills to craft a unanimous decision. Black and Douglas were on board, of course, as was Frankfurter. Burton and Minton voted yes, and Warren quickly convinced Clark. That left Jackson and Reed. Jackson had a heart attack, and Warren personally went to his hospital bed to convince him that the most pragmatic decision would be to join Warren’s opinion and not release his concurrence, allowing the court to speak as one. Jackson capitulated. Reed was the sole dissenter, and Warren simply said “You’re a man of the South. You know there’s going to be resistance. Do you want to get blamed for legitimizing it?” No, he didn’t. Make the decision unanimous. At the cost of “deliberate speed” that wound up leaving de facto segregation in place.
But note that this victory, striking down legal segregation, depended on twists of fate—Vinson’s death from a heart attack and Eisenhower’s owing a political favor to Warren, whose jurisprudence he did not anticipate. Warren’s political skills. Jackson’s heart attack which weakened his resistance to Warren’s politicking. All of it was necessary to bring the decision about.
Eisenhower would get more appointments, which moved the court leftward (though Eisenhower didn’t mean to do this). A few months after the decision, Jackson had another heart attack, this one fatal. The conservative John Marshall Harlan II, grandson of the Plessy v Ferguson dissenter of the same name , replaced him. In 1956, Minton retired and Eisenhower appointed William Brennan, one of our heroes, who quickly joined Warren, Black, Douglas on the left. But why Brennan? Because it was an election year, and Eisenhower thought he could win Catholic voters by appointing a Catholic justice. In 1957 and 1958, Reed and Burton were replaced by Charles Whittaker and Potter Stewart.
Thus, Eisenhower got 5 appointments, which could have tilted the court conservative again—but 2 became very liberal. Eisenhower appointed Warren because he owed him a political favor, and Brennan to win votes for reelection. If not for those politics, the liberalism of the 60s might never have happened.
The Brief Liberal Window
By the early 60s, Warren, Douglas, Black, Brennan comprised the left wing, needing a vote from the more conservative Whittaker, Stewart, Harlan, Clark, Frankfurter. They got those votes in Mapp v Ohio, which created the exclusionary rule that conservatives have chipped away at ever since. Clark voted with the liberals and wrote the decision. Harlan, Whittaker, and Frankfurter dissented.
In 1962, though, the liberals took control. Whittaker, who had been a weak, vacillating justice (though he generally voted with the conservatives) suffered a nervous breakdown and resigned. Meanwhile, the case of Baker v Carr reached the court. Can courts decide cases of redistricting, of malapportionment? 6-2 (Whittaker not participating), the court said yes, taking a huge step toward one person one vote, much hated on the right. Frankfurter felt very strongly that the court should “not enter that political thicket” and harangued his colleagues for hours. By then 80 years old, he suffered a stroke, and was forced to retire, depriving the conservative wing of their intellectual leader. He died in 1965.
JFK now had two choices to make. He replaced Whittaker with Byron White, and Frankfurter with a Jewish liberal (until recently, the Jewish seat and the Catholic seat were significant matters), Arthur Goldberg. Goldberg formed a 5-vote liberal majority with Warren, Douglas, Black, and Brennan. White was no liberal, but he was a New Deal Democrat and left of Whittaker.
The liberal majority could now work its magic. Gideon v Wainwright, guaranteeing a lawyer for criminal defendants. Reynolds v Sims , Wesberry v Sanders, one person one vote. Upholding the Civil Rights Act on Commerce and 14th Amendment grounds. Griswold v Connecticut, striking down laws prohibiting use of contraception. Miranda rights. Interracial marriage in Loving v Virginia. Tinker v Des Moines, giving students free speech rights. The case of Jerry Gault, guaranteeing due process for juveniles. New York Times v Sullivan, protecting newspapers from libel suits (why does this suddenly seem very relevant?). And I’m sure I’m missing some cases.
Meanwhile, LBJ got Goldberg off the court by naming him to another position, in order to appoint his longtime political ally, Abe Fortas, also a strong liberal (and, like Goldberg, Jewish). In 1967, Clark retired and LBJ named Thurgood Marshall. Thus, there were 6 strong liberals on the court. What couldn’t they do?
The End of the Liberal Majority
Unfortunately, the end came all too soon. In no small part due to liberal political blunders (we have a way of making these). Warren announced his retirement in 1968, giving LBJ the chance to name his successor. LBJ blundered and named his ally, Fortas, and the GOP blocked Fortas (and hence also blocked LBJ’s choice for the new associate justice). Fortas had continued to advise Johnson while a justice, and had also accepted large sums of money for speaking engagements from private interests, which could soon be bringing cases before the court. The GOP used this as their reason to block him, though of course they were also angered by the Warren Court’s commitment to equal justice and took that out on Fortas (and LBJ).
Then things got worse. Richard Nixon was elected president, so he got to name Warren’s replacement instead. He named a solid conservative, with a strikingly similar name—Warren Earl Burger. And then it turned out that Fortas had also accepted a $20,000 retainer from crooked financier Louis Wolfson. Though he later returned it, and recused himself from Wolfson’s case when it came before the court, he wound up resigning.
Nixon first named solid conservative Clement Haynesworth to succeed Fortas. That angered Democrats, who felt Fortas had been unfairly railroaded, who wanted the court to remain liberal, and who were disgusted that Nixon had not chosen a Jewish justice to succeed the sole Jew on the Court. Haynesworth was defeated. Nixon, angered, nominated Harrold Carswell, who was only marginally qualified and also quite conservative. This gave rise to the GOP senator’s statement that “mediocre people are entitled to representation too.” Carswell, too, was defeated.
Nixon accepted his fate, and named someone acceptable to almost everyone—Burger’s longtime ally/colleague, Harry Blackmun. Blackmun was approved, after the seat had been vacant for a year.
In 1971, Black and Harlan died, weeks after their retirements. Nixon named corporate big shot Lewis Powell to succeed the New Dealer Black. Powell, of course, wrote the infamous Powell memo organizing big business interests to buy politicians and make government work for them, not the people. To succeed Harlan, Nixon named William Rehnquist, who as Jackson’s law clerk had urged the Court to uphold Plessy v Ferguson. And nothing that Rehnquist did for the next 33 years suggests he ever strayed from that kind of thinking. The days of liberal dominance were over, just as quickly as they’d begun. We’ve been trying to scrape by ever since, and usually not succeeding.
Now let’s conduct a thought experiment—what happens if LBJ doesn’t name Fortas in 1968? Or if he hadn’t gotten rid of Goldberg to appoint Fortas in the first place? Are the speaking fees still a big deal? Does an alternative justice get confirmed as chief? Under this scenario, Nixon gets only two appointments, not four. Who gets named? Does Rehnquist, who ably served the far-right cause for 33 years, even get to be a justice? With more Democrats remaining on the court, do one or more retire under Jimmy Carter’s presidency and give him a chance to appoint a justice? Carter is the only president to serve a full term of office and never get to appoint a justice (though he did name RBG and Breyer to the Circuit Courts, where they were when Bill Clinton named them to SCOTUS. Also, see my 9th Circuit diary—Carter is the reason for its liberalism). The Fortas seat is now held by Stephen Breyer, so no harm done there, but if Nixon only gets two appointments, we might be in a lot less trouble now.
Although we liberals could still win at the Court, we once again had to pick up a conservative vote or two. In the Pentagon Papers case, Black, Douglas, Brennan, and Marshall were joined by White and Stewart to allow publication. In Eisenstadt v Baird, which extended Griswold to unmarried couples, we got everyone but Burger in a 6-1 win (Powell and Rehnquist had not yet joined the Court). In Furman v Georgia, the 5-4 Court struck down some death penalty statutes/practices as unconstitutional—White and Stewart joined Brennan, Douglas, Marshall to outvote the four Nixon appointees. And of course, in 1973, was the most famous one of all--Roe v Wade. A 7-2 vote, White and Rehnquist dissenting. An interesting note is that Burger almost certainly switched his vote for strategic reasons. The chief assigns the majority opinion if he is in the majority; if not, the senior associate justice in the majority decides. In this case, that was Douglas, who would probably have assigned it to himself . No way did Burger want Douglas writing that decision, in light of Douglas’s views. Burger changed his vote and assigned the opinion to Harry Blackmun instead. And in 1977, in Coker v Georgia, the Court, 7-2 (Burger and Rehnquist dissenting) outlawed the death penalty for rape (this was reaffirmed 5-4 in 2008).
Stay tuned for part 2, from the 70s to the present. But as we have seen here, the liberal majority was actually quite brief, but accomplished so much—some of which has even survived 50 years of conservative majorities. And all of which is imperiled by the kinds of conservative justices we have today, and the kind that Donald Trump would appoint. Even the conservative justices referenced here, other than Rehnquist, were certainly not conservative like Alito or Thomas. Let’s get Clinton elected, with a Democratic Senate, to swing SCOTUS back towards justice for all. I’ll have more to say about that in part 2.