Below the Fold: The Supreme Court’s Brief, Now Lost Legacy of Constitutional Liberalism

The sudden ascension of John Roberts and Samuel Alito to the Supreme Court within a few short months, time mostly taken up with opposition to their appointments, has precluded deeper reflections on the world we have lost. It is no longer possible to imagine the Supreme Court as a guardian of individual rights against state intrusion. Indeed, quite the opposite is occurring: the new Court is likely to sacrifice civil liberties given what they judge to be a “compelling state interest.” Already, the present Court has deprived aliens, permanent residents or sojourners, of civil liberties as a necessity of our undeclared wars, and citizens are next. Except for Justice Kennedy’s 2003 attempt to enlarge homosexual protections with an appeal to international law, a move Justice Scalia fiercely attacked as submission to the “homosexual agenda,“ the present Court has shown little interest in guaranteeing, let alone extending the rights and protections enumerated in the Bill of Rights. A solid statist majority, shorn of the libertarian streak of the old American right wing, will see to it that Bush and his successors, in the spirit of their great autocrat predecessor, can say: “L’etat, c’est moi.

The golden age of what might be called “constitutional liberalism,” begun with the appointment of Hugo Black to the Supreme Court in 1937 and ending with the retirement of Justice William Brennan in 1990, is over. During this just a bit more than half a century, justices such as Black, Douglas, Warren, Brennan and Marshall wrote opinions that said in simple, eloquent English that the guarantees of the Bill of Rights applied to every citizen in almost every human circumstance. Under their tutelage, the Court became the ultimate protector of individual liberties, a role these justices cherished.

It was not always – in fact – never was thus. This remarkable band of brothers that ruled during the Court’s Golden Age was an historical anomaly. One suspects that students are still taught Chief Justice Roger Taney started the Civil War in 1857 by ruling in the Dred Scott case that slaves were property and their owners’ rights protected by the Constitution. What students are no doubt not taught is that the Supreme Court before the 20th Century was essentially a chancery court for rising corporate capitalism, magically transforming corporations into legal persons and availing them of most 14th Amendment protections, even while depriving African-Americans of same in Plessy versus Ferguson (1896). No greater thefts of civil rights save the Indian treaties have been sanctioned before or since.

Before the Golden Age, there were prophets with honor. Justice Oliver Wendell Holmes, not for nothing known as the Great Dissenter so little did he carry a Court majority from 1902 to 1932, and Justice Louis Brandeis, the Progressive era’s leading legal genius who sat on the Court from 1916 to 1939, anticipated constitutional liberalism but made little law. They along with Benjamin Cardozo, in his short six-year tenure ending in 1938, were the minority that protested the Supreme Court dismantling of the first New Deal.

Black20hugoFlush from his 1936 landslide victory, Franklin Roosevelt tried to add to their number by packing the Court with younger, more cooperative members, and for his hubris, suffered the loss of much of his second mandate’s power. Roosevelt, out of revenge and even out of spite, nominated in 1937 Hugo Black, the senior senator from Alabama and certified fire-eating New Dealer, to the Court. As Roosevelt knew, senatorial courtesy would protect Black, and the Senate confirmed him within days. As New Dealer Harold Ickes put it, the economic royalists, as corporations were known as in those days, would get a good licking now.

Son of a dissolute small town merchant in a hardscrabble, red clay county pushed up against the Appalachians, Black (1886-1971) got his start as a lawyer defending poor people against corporations, and was proud that unlike most of his peers in rural Alabama, he had never taken a dime in retainer or bribe from the railroads and other trusts then cracking open the South for new profits. Instead, he represented clients suing corporations for personal injuries, job-related disabilities, and wrongful separations, the latter often related to union activities. He hated big money and monopolies and became one of the crusading Democrats that brought the political impulses of populism into the party. He became a Klansman too, a fact that got him elected the first time to the Senate but that almost ruined him shortly after being named to the Court.

A radical New Dealer, Black was against Roosevelt’s National Industrial Recovery Act because it propped up big business through legalized price-fixing. He was likely the first national politician to call for national health insurance. He originated bills for the minimum wage and the 30-hour week, and was the author of the groundbreaking fair labor standards act. Though Black regretted it, he like Roosevelt gave in to southern Democratic demands that minimum wage protections be stripped from agricultural and service workers, thus re-consigning, in effect, African-Americans in the South to a Jim Crow economy.

Black was the leader, the inspirational force for the Golden Age, serving for 34 years between 1937 and 1971. At first something of an apprentice “Great Dissenter,” Black soon learned the craft of how to put together majorities. With William Douglas as his great ally, he began making law, affirming the right to counsel for poor defendants in federal trials (1938), demanding racial integration of juries (1939) and due process for black defendants in criminal trials (1941). He ordered the admission of James Meredith to the University of Mississippi (1962). He defended freedom of speech, association, press and religion with an old-fashioned, Bible-thumping injunction that the Founders had said that Congress shall make no law respecting these freedoms, and they meant it. He brooked no compromises with the Bill of Rights, seeing in it a citizen’s sole defense against government tyranny. He defended it against all comers, even those liberals like Felix Frankfurter, and by implication so many others since, who believed that the protections of the Bill of Rights must be balanced against other rights and privileges granted in the Constitution. The Bill of Rights contains “absolutes,” that were not mere “admonitions,” in his words, but prohibited prejudicial action of any sort. Unable to get his colleagues to apply the entire Bill of Rights in defense of citizens in altercations with local and state authorities as well as to federal jurisdictions, he painstaking and relentlessly sought over the course of 34 years to achieve the same result piece-meal.

1101641009_400Black defended Communists, pacifists, and said with generosity, pornographers. They were all protected, as were their rights to a living. Tyranny, he said in Chambers versus Florida (1940), was the great truth of human history, and those who suffered the most at tyranny’s hand were almost always “the poor, the ignorant, the numerically weak, the friendless, and the powerless.” The Court’s job was to affirm their rights – to stand up to governments and stop them from taking rights away. This was the kernel of constitutional liberalism, whether the Court found itself deciding for equal protection under the law and equal opportunity, or against extracted confessions, lawyerless suspects, and unreasonable search and seizure by the agencies of the state.

Sadly, the Golden Age began to decay by the late sixties, as a quick look at Justice Black’s last decade suggests. It had gone about as far as these brothers could take it. Black worked hard to put the Court behind equal protection under the law for African-Americans and for desegregation of schools and other public facilities, and for his pains, became anathema in his native South. Integration, on the other hand, was social policy to him, a matter of community preference, not jurisprudence. He stepped down just as the Court began hearing the cases that moved the federal government beyond simply assuring equality of opportunity to toward equality of outcomes. The Court’s many attempts to protect the rights of crime suspects led him to despair that that the Court may be aiding in letting guilty criminals go free.

From early on, he carried forward perhaps the two most crucial flaws of constitutional liberalism, and perhaps of the political liberalism of his time. First, Black treated property rights as sovereign. Picketers on company land were trespassers; even bus counter boycotters raised his ire. Second, the President’s powers in war were virtually supreme. He voted to affirm putting Japanese Americans and Japanese resident aliens in camps during World War II, because President Roosevelt and his generals had declared it a military necessity. His brothers Earl Warren (also the governor of California who had urged internment) and Tom Clark (U.S. attorney general at the time) later regretted their votes for it; Hugo Black never did. Consider the consequences. Of the first flaw, property, not opportunity or dignity is what our law protects, and we live the consequences daily. Of the second flaw, perhaps the word Guantanamo suffices.

The Golden Age is over, over by a good 15 years, though Clinton’s giddy Gilded Age spread money enough around to help us forget. The Supreme Court now decisively returns to is historic role as the protector of privilege, but this time it adds the defense of autocracy to its brief.