Overruled (12 page)

Born in Albany, New York, in 1872, Hand studied law at Harvard and went on to serve as a key adviser to Theodore Roosevelt's 1912 Progressive Party campaign for the presidency. One year later, Hand himself appeared on the Progressive ticket as a candidate for the chief judgeship of New York's highest court. In 1914, he joined Herbert Croly in founding
The New Republic,
where he regularly contributed articles and editorials advocating Progressive political and legal theories until his appointment to the Second Circuit in 1924, where he would spend the next three decades. When he died in 1961, the
New York Times
responded with a front-page obituary describing him as “the greatest jurist of his time.”
16

In February 1958, at the age of eighty-seven, Hand was invited back to Harvard to deliver the celebrated Oliver Wendell Holmes
Lecture, an annual event featuring a distinguished legal speaker. In his remarks, delivered over three nights and later published as a short book titled
The Bill of Rights,
Hand's theme was the fundamental illegitimacy of judicial review and what he saw as the troubling rise of liberal judicial activism by the current Supreme Court, including its recent decision in
Brown v. Board of Education.
He began with a critique of the “patent usurpation” whereby the Supreme Court had transformed itself into “a third legislative chamber.”
17
As he explained, such activism was inappropriate no matter what value was at stake. “I can see no more persuasive reason for supposing that a legislature is
a priori
less qualified to choose between ‘personal' than between economic rights,”
18
he announced. As for the constitutional protections spelled out in the Bill of Rights and the Fourteenth Amendment, “we may read them as admonitory or hortatory, not definite enough to be guides on concrete questions.”
19
As Hand saw it, the individualistic language of the Constitution was no license for judges to go meddling around with the democratic process.

Turning next to
Brown,
Hand argued that the problem with the Supreme Court's ruling was that the justices had substituted their own values for those of the Kansas authorities. That, he said, was precisely what conservative justices had previously done in order to strike down the economic reforms they disapproved of during the Progressive and New Deal periods.
Brown,
he informed his increasingly disquieted audience, was guilty of the same judicial sins that had marred
Lochner
and other liberty of contract cases, and must therefore be rejected as such. “There can be no doubt,” he declared, “that the old doctrine seems to have been reasserted.”

Indeed, Hand went on, in the aftermath of
Brown
and other aggressive liberal rulings by the Warren Court, “I do not know what the doctrine is as to the scope of these clauses,” meaning the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
“I cannot frame any definition that will explain when the Court will assume the role of a third legislative chamber and when it will limit its authority.”
20
It was judicial power run amok.

To conclude his lecture, Hand made one final, personal plea for the Court to adopt the method of judicial deference he had been championing for nearly half a century. “For myself,” he said, “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”
21

In time, those eloquent words would come to be celebrated as one of the most powerful statements ever made in favor of judicial restraint. But that eloquence did little to make the bitter pill of Hand's message any easier to swallow in 1958, especially for the many young liberals in his audience who had cheered
Brown
as among the Supreme Court's finest rulings. As Hand biographer Gerald Gunther later put it, “Warren Court admirers could dismiss the most vocal critics of the Court as extremists; yet here was the nation's most highly regarded judge . . . apparently joining the Court's enemies.”
22

Into the Thicket

Nor would Hand be the only Progressive veteran to line up against the new liberal order. Felix Frankfurter, the influential Harvard professor, protégé of Oliver Wendell Holmes, and New Deal adviser to President Franklin Roosevelt, had been rewarded for his accomplishments when FDR elevated him to the Supreme Court in 1939. But then something unexpected happened. As his colleagues began to adopt the Footnote Four framework and apply heightened judicial scrutiny in cases dealing with civil liberties and voting rights, Frankfurter, for the first time in his professional life, found himself increasingly out of step with the liberal
consensus. By the time he retired in 1962, many young reformers had come to regard Frankfurter as one of the Supreme Court's leading reactionaries, and not as any sort of progressive at all.

Frankfurter got his first taste of the Supreme Court's new direction in a pair of cases dealing with the question of whether public schools may require their students to salute the American flag as part of a daily exercise that included the Pledge of Allegiance. The first of those cases originated in Pennsylvania, where two children, aged ten and twelve, both practicing Jehovah's Witnesses, had refused to salute the flag and were therefore expelled. Their father challenged the law on their behalf, arguing that it interfered with the children's religious liberty.

Frankfurter saw the matter quite differently. In fact, he thought it was an open-and-shut victory for the local school board. “The court-room is not the arena for debating issues of educational policy,” he declared for the majority in the 1940 case of
Minersville School District v. Gobitis.
One of the main purposes of public education, Frankfurter said, was to instill notions of patriotism and democracy in young Americans. And it was simply beyond the legitimate purview of the federal courts to second-guess local determinations made in the service of that basic objective. To rule otherwise, he maintained, “would in effect make us the school board for the country.”
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If a family of Jehovah's Witnesses (or any other sect) wanted to secure greater accommodations for their religious beliefs, they should do so “in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena.”
24

Yet just three years later, thanks in part to a change in the Court's composition, Frankfurter found himself on the losing side of a nearly identical dispute in the case of
West Virginia State Board of Education v. Barnette.
Once again, some young Jehovah's Witnesses had refused to participate in their public school's mandatory flag salute ceremony
on religious grounds. But this time the Supreme Court ruled in the students' favor, holding that the state government had trespassed on their constitutional rights. “To sustain the compulsory flag salute,” observed the majority opinion of Justice Robert Jackson, “we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.”
25

Frankfurter was furious about being overturned, and he made no effort to hide it in his dissent. “Responsibility for legislation lies with legislatures, answerable as they are directly to the people,” he announced. “This Court's only and very narrow function is to determine whether, within the broad grant of authority vested in legislatures, they have exercised a judgment for which reasonable justification can be offered.”
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Pointing to his own identity as a Jewish American, Frankfurter tartly noted that while he knew a thing or two about the plight of religious minorities, that knowledge still gave him no license as a judge to stamp his own feelings on the Constitution. “As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more, and not less, important,” he warned his colleagues, “lest we unwarrantably enter social and political domains wholly outside our concern.”
27

Frankfurter would repeat that same warning with even greater volume two decades later in what turned out to be his final opinion as a justice, a long and bitter dissent from the landmark 1962 voting rights decision in
Baker v. Carr.
Hailed by Chief Justice Earl Warren as “the most vital decision”
28
handed down during his tenure on the bench,
Baker
dealt with the thorny issue of how a state government apportions its legislative districts in the wake of a census. The case originated in Tennessee, where the plaintiffs charged Secretary of State Joseph Cordell Carr with stacking the deck in favor of rural voters at the expense of the state's growing urban population by failing to
properly redraw the boundary lines for the ninety-five districts that comprised the Tennessee General Assembly. According to the challengers, the state government was effectively denying urban residents a fair share of political power and thereby violating the basic principle that the Supreme Court would ultimately recognize as “one person, one vote.” For its part, Tennessee argued that the federal courts lacked jurisdiction to hear the case, and added that the issue of legislative apportionment was a “political question” that the Supreme Court had no business trying to solve.

Writing for a six-to-two majority, Justice William Brennan ruled against the state. While he did not pass judgment on the constitutionality of Tennessee's current apportionment scheme, Brennan made it clear that the challengers had every right to bring suit and that the federal courts were within their rights to settle the matter in a future case. “The complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision,” he held. “The right asserted is within the reach of judicial protection under the Fourteenth Amendment.”
29
Two years later, in
Reynolds v. Sims,
Chief Justice Warren went further and nullified Alabama's lopsided districting plan, ruling that representation in a state legislature must closely track the state's actual population. “Legislators represent people, not trees or acres,”
30
he declared.

In a previous redistricting case, Felix Frankfurter had urged the Supreme Court to avoid the matter entirely as a basic act of judicial restraint. “Courts ought not to enter this political thicket,”
31
he famously wrote. Finding himself on the losing side of
Baker,
Frankfurter doubled down on that deferential position. The Court's ruling, he declared in dissent, was “a massive repudiation of the experience of our whole past” brought about by the assertion of a “destructively novel judicial power.”
32
The Court had simply gone too far. “There is not under our Constitution a judicial remedy for every political mischief, for every
undesirable exercise of legislative power,”
33
he argued. Yet thanks to the majority's holding, the federal courts were now empowered “to devise what should constitute the proper composition of the legislatures of the fifty States,”
34
a result he found both offensive and unworkable. “In a democratic society like ours,” Frankfurter maintained, “relief must come through an aroused popular conscience that sears the conscience of the people's representatives,”
35
not through the courts.

To say the least, it was not an opinion destined to win Frankfurter any new fans on the American left. Indeed, as one historian recently put it, “With time, it came to seem impossible that a justice who opposed judicial enforcement of voting rights could be considered liberal.”
36
The same thing might be said about the West Virginia flag-salute case, now considered a touchstone in the advancement of civil liberties. Yet there stood Frankfurter, one of the last lions of the Progressive legal movement, attacking his liberal colleagues for their judicial activism on both counts.

What changed? Certainly not Frankfurter—he remained faithful to the majoritarian jurisprudence of his youth. Back in 1924, outraged over the use of the Fourteenth Amendment to overturn state regulations, he had called for the repeal of the Due Process Clause in an unsigned editorial written for
The New Republic.
Now, in the twilight of Jim Crow, Frankfurter was still urging the federal courts to butt out of state affairs and let local citizens and their elected representatives chart their own political futures. He saw Footnote Four as an escape hatch, one that let federal judges roam free once more to strike down state and federal legislation.

“Penumbras, Formed by Emanations”

The growing tension between Progressive restraint and liberal activism finally exploded when the Supreme Court grappled with the hot-button
issue of reproductive privacy. In Connecticut, under a statute dating back to 1879, it was a crime to use “any drug, medical article or instrument for the purpose of preventing conception,”
37
as well as to assist, counsel, or otherwise aid any person in the use of such devices. Birth-control advocates had previously tried to get the Supreme Court to consider the merits of the contraceptive ban on two separate occasions, and had been rebuffed both times. First, in the 1943 case of
Tileston v. Ullman,
the Court ruled that the challenger lacked the requisite legal standing to bring suit. Then, in 1961's
Poe v. Ullman,
the Court said that because no one had actually been prosecuted for violating the law, the case was not yet “ripe” enough for adjudication.