When Judicial Activists Switched Sides

Deference to elected majorities was a Progressive ideal long before modern conservatives picked up the baton.

On July 1, 1987, President Ronald Reagan introduced the American people to the man he had selected to replace retiring Justice Lewis Powell on the U.S. Supreme Court. Robert Bork "is recognized as a premier constitutional authority," Reagan announced, with the nominee standing by his side. A former solicitor general of the United States, a distinguished former professor of law at Yale University, and a sitting judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, Bork did indeed come well qualified for the position. Furthermore, Reagan continued, Bork is "widely regarded as the most prominent and intellectually powerful advocate of judicial restraint," the idea that judges should defer to the will of the majority and refrain from striking down most democratically enacted laws. As a justice, Reagan concluded, Robert Bork "will bring credit to the Court and his colleagues, as well as to his country and the Constitution."

Less than an hour later, Sen. Edward Kennedy of Massachusetts, a prominent liberal Democrat, took to the floor of the Senate to offer a very different take on Reagan's pick. "Robert Bork's America," Kennedy declared, "is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters…and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy."

The basic script for Bork's confirmation process had been set. Following Reagan's lead, Bork's supporters characterized him as the heir to a long and noble tradition rooted in the judicial deference favored by turn-of-the-century Progressives. "I would ask the committee and the American people to take the time to understand Judge Bork's approach to the Constitution," said Republican Sen. Bob Dole of Kansas. "That approach is based on 'judicial restraint'… Now, Judge Bork did not invent this concept," Dole continued. "It has been around for a long time. One of the most eloquent advocates was Oliver Wendell Holmes."

Dole picked a good example. Appointed in 1902, Justice Oliver Wendell Holmes was one of the Supreme Court's earliest and most influential advocates of judicial deference. "A law should be called good if it reflects the will of the dominant forces of the community," Holmes once declared, "even if it will take us to hell."

Bork's Democratic opponents, meanwhile, followed Kennedy's example and zeroed in on the ways that Bork's jurisprudence threatened to upset the political balance. "As I understand what you have said in the last 30 minutes," said Judiciary Committee Chairman Joseph Biden (D-Del.), who was then questioning Bork about whether the Constitution secured a right to privacy, "a State legislative body, a government, can, if it so chose, pass a law saying married couples cannot use birth control devices."

Bork would object to that characterization of his views, but there was no denying that Biden had a point. If the Supreme Court had followed Bork's deferential approach to legislative determinations in the 1965 case of Griswold v. Connecticut, it never would have invalidated that state's ban on the use of birth control devices by married couples. Similarly, if the Court had followed Bork's approach eight years later in Roe v. Wade, Texas' anti-abortion restriction would still be on the books.

But Bork's supporters also had a point. Reagan and Dole were right: Bork was a principled advocate of judicial minimalism. He not only opposed what he saw as the Court's liberal activism in Griswold and Roe but also rejected what he saw as the conservative activism of Lochner v. New York, the famous 1905 case in which the Supreme Court struck down a state restriction on economic liberty (over the dissent of Justice Holmes). Indeed, during his confirmation hearings, Bork took pains to remind his interrogators "that there was a time when the word liberty in the 14th Amendment was used by judges to strike down [Progressive] legislation." Those conservative and libertarian judges, Bork argued, "were wrong because they were using a concept to reach results they liked, and the concept did not confine them, and they should not have been using that concept."

It was a sentiment worthy of Justice Holmes himself. Yet not only did Bork's ode to legal Progressivism fail to win him any additional Democratic supporters, it almost certainly helped doom his already troubled nomination, which eventually went down to defeat in the Senate by a vote of 58-42. That's because American liberals had long ago abandoned the sort of all-encompassing judicial deference espoused by Oliver Wendell Holmes. Instead, modern progressives like Kennedy and Biden took their cues from a new breed of liberal jurist, best represented by figures such as Earl Warren and William O. Douglas. Those justices had led the mid-20th-century Supreme Court through what has been dubbed a "rights revolution," a busy stretch during which government actions were overturned in the name of voting rights, privacy rights, and many other rights besides. Put differently, in the half century that fell between the presidencies of Franklin Roosevelt and Ronald Reagan, the American left had learned to stop worrying and love judicial activism.

Footnote Four

The story of this sweeping liberal transformation begins in the most humble of places: a footnote. In 1938 the Supreme Court considered the constitutionality of a federal law forbidding the interstate shipment of so-called filled milk, which is basically a milk product made with oil rather than milk fat. The dairy industry viewed the product as a competitor and lobbied successfully for its restriction. Adopting a deferential posture, the Supreme Court concluded that Congress must have had its reasons for passing the Filled Milk Act and voted to sustain the ban. When it came to "regulatory legislation affecting ordinary commercial transactions," the Court declared in United States v. Carolene Products Co., "the existence of facts supporting the legislative judgment is to be presumed."

Lawyers today know this approach as the "rational-basis test." Essentially, it tells judges to give lawmakers the benefit of the doubt and scrutinize a law only if it seems to lack any conceivable connection to a legitimate government interest. In Carolene Products, because Congress did have a legitimate interest in monitoring the interstate milk market and because the regulation in question did not appear to be a completely nonsensical way to advance that interest, the Supreme Court made no attempt to determine whether or not Congress had any verifiable scientific evidence for declaring filled milk to be "injurious to the public health." Had the justices looked further, they might have discovered that filled milk was a perfectly safe (and affordable) alternative to whole-fat milk, as countless consumers could have attested.

Armed with the rational-basis test, the Supreme Court proceeded to grant overwhelming deference to a range of regulatory measures. In the 1948 case of Goesaert v. Cleary, for example, the Court upheld a Michigan law forbidding women from working as bartenders unless they happened to be "the wife or daughter of the male owner" of a licensed establishment. "We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives," declared Justice Felix Frankfurter, a leading Progressive jurist. "Since the line they have drawn is not without a basis in reason," he continued, "we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling."

Yet at the same time that the Court was committing itself to this near-total submission to lawmakers on the economic front, the justices were testing the bounds of greater judicial action in other realms. As justification for this bifurcated approach, they pointed back to the fine print in the 1938 Carolene Products case. In Footnote Four of that opinion, Justice Harlan Fiske Stone explained that while the courts must now presume all economic regulations to be constitutional, "more exacting judicial scrutiny" would still be appropriate in other types of cases. For example, the Court should not automatically defer to a law that appeared to violate "a specific prohibition of the Constitution, such as those of the first ten amendments." In addition, Stone wrote, judicial deference would be equally inappropriate when the law at issue appeared to impact the right to vote or to otherwise impede the "political processes" normally employed by citizens to vindicate their rights. Finally, "prejudice against discrete and insular minorities" may also require a "more searching judicial inquiry." According to Footnote Four, in other words, the Supreme Court need not after all commit itself to the practice of judicial restraint in all cases.

To the members of the burgeoning civil rights movement, the call for enhanced judicial scrutiny on behalf of "discrete and insular minorities" sounded exactly right. In fact, the NAACP Legal Defense Fund was then asking the courts to breathe real life into the post-Civil War 14th Amendment by securing equal treatment under the law for African Americans. That strategy famously paid off with the Supreme Court's historic 1954 ruling in Brown v. Board of Education of Topeka, Kansas, which found racial segregation in public schools to be "inherently unequal" and therefore unconstitutional.

Brown inspired a harsh backlash throughout the country, with segregationists denouncing it as "judicial tyranny." But Brown also had its critics on the left, a fact that is sometimes forgotten today. Foremost among them was Learned Hand, recently retired from his position as chief judge of the U.S. Court of Appeals for the 2nd Circuit. Considered by many legal observers to be the greatest judge never to sit on the Supreme Court, Hand was an undisputed icon of the Progressive movement, a revered jurist whose career stretched back to the great battles over the role of the courts that raged during the Lochner era.

Born 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 until his appointment to the 2nd Circuit in 1924, where he spent the next three decades. When he died in 1961, The New York Times eulogized him as "the greatest jurist of his time."

In February 1958, at the age of 87, Hand returned to Harvard to deliver the Oliver Wendell Holmes Lecture, an annual event featuring a distinguished legal speaker. The theme of his remarks was the fundamental illegitimacy of judicial review and what he saw as the troubling rise of liberal judicial activism. He began with a critique of the "patent usurpation" whereby the Court had transformed itself into "a third legislative chamber." 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," he announced. As for the constitutional protections spelled out in the Bill of Rights and the 14th Amendment, "we may read them as admonitory or hortatory, not definite enough to be guides on concrete questions." In Hand's view, the Constitution did not give judges license to go meddling around with the democratic process.

Turning next to Brown v. Board of Education, Hand argued that the justices in that case 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.

To conclude, Hand made a 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."

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 Hand's message any easier to swallow in 1958, especially for the many young liberals 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."

Into the Thicket

Hand was not the only Progressive veteran to line up against the new liberal order. Felix Frankfurter, a Harvard law 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 apply Footnote Four scrutiny in cases dealing with civil liberties and voting rights, Frankfurter, for the first time in his professional life, found himself out of step with the liberal consensus. By the time he retired in 1962, many young reformers had come to regard him 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 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 case originated in Pennsylvania, where two children, 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 thought it was an open-and-shut victory for the local school board. "The courtroom 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. If a family of Jehovah's Witnesses (or any other sect) wanted to secure 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."

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 West Virginia State Board of Education v. Barnette. This time, the Supreme Court ruled in the students' favor.

Frankfurter was furious. "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," he declared in dissent. 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 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.

Frankfurter would repeat that 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 decision in Baker v. Carr. The case dealt with the thorny issue of how a state government apportions its legislative districts in the wake of a census. It originated in Tennessee, where the plaintiffs charged the secretary of state with stacking the deck in favor of rural voters at the expense of the state's growing urban population. According to the challengers, the Tennessee government was violating the basic principle that the Supreme Court would ultimately recognize as "one person, one vote." Writing for the majority, Justice William Brennan agreed. 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 right asserted is within the reach of judicial protection under the Fourteenth Amendment," he held. Two years later, in Reynolds v. Sims, Chief Justice Warren went further and nullified Alabama's lopsided districting plan.

In a previous redistricting case, Felix Frankfurter had urged the Court to avoid the matter as a basic act of judicial restraint. "Courts ought not to enter this political thicket," he wrote. Finding himself on the losing side of Baker, Frankfurter doubled down on that deferential position. The Court's ruling, he announced in dissent, unleashed a "destructively novel judicial power." Federal judges were now permitted "to devise what should constitute the proper composition of the legislatures of the fifty States," 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," not through the courts.

It was not an opinion destined to win Frankfurter any new fans on the American left. Indeed, as legal scholar Noah Feldman recently put it, "With time, it came to seem impossible that a justice who opposed judicial enforcement of voting rights could be considered liberal" at all.

What changed? Certainly not Frankfurter—he remained faithful to the majoritarian jurisprudence of his youth. Back in 1924, outraged over the use of the 14th Amendment to overturn economic 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 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 addressed the issue of reproductive privacy. Under a Connecticut statute dating back to 1879, it was illegal to use "any drug, medical article or instrument for the purpose of preventing conception," 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.

But all that changed with the 1965 case of Griswold v. Connecticut. Two agents of the state's Planned Parenthood League, one of whom was a doctor, had been duly charged with dispensing birth-control devices to married couples. The Supreme Court saw its opportunity and tackled the case head-on.

The result was a fractured ruling that still sparks debate. At the heart of the case was a deceptively simple question: Does the Constitution protect a right to privacy? A majority of the Court held that it did, but then quickly divided over precisely how the Constitution managed to do it. Writing for a five-justice majority, Justice William O. Douglas argued that while the right to privacy is not specifically enumerated in the text of the document, various textual provisions do nonetheless protect certain aspects of privacy, such as the Fourth Amendment's guarantee against unreasonable searches and seizures. Furthermore, Douglas argued, those "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Taken together, the "penumbras" and "emanations" of these "fundamental constitutional guarantees" create a distinct "zone of privacy" that is itself a constitutional right worthy of judicial protection.

In a separate concurrence, Justice Arthur Goldberg agreed that the law "unconstitutionally intrudes upon the right of marital privacy" but instead rested the case more squarely on the language of the Ninth Amendment, which holds, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Meanwhile, two other justices, John M. Harlan and Byron White, each filed separate concurrences ruling against the law solely under the Due Process Clause of the 14th Amendment. In short, the Court's liberal majority very much wanted to recognize a constitutional right to privacy, but the justices could not reach any sort of broad agreement over the proper method for doing so.

Why the disarray? Consider again the central proposition of Footnote Four from the 1938 Carolene Products decision. It said that the Supreme Court may only engage in "exacting judicial scrutiny" when the government appeared to violate a specific provision of the Constitution, interfere with the political process, or discriminate against "discrete and insular minorities." Simply put, Connecticut's intrusion on marital privacy failed to satisfy any one of those three tests, leaving the justices scrambling for a fix.

Douglas in particular struggled to meet the requirements of Footnote Four. Keep in mind that Carolene Products was written in large part as a reaction to cases such as Lochner v. New York, which struck down a maximum working hours law for bakery employees, and Adkins v. Children's Hospital (1923), which struck down a minimum wage law for women. In each of those cases, the Supreme Court had nullified an economic regulation for violating the unenumerated right to liberty of contract, a right the Court first located in the 14th Amendment's guarantee that no person be deprived of life, liberty, or property without due process of law. Yet as Chief Justice Charles Evans Hughes had declared in West Coast Hotel Co. v. Parrish, the 1937 case that overruled Adkins and effectively killed Lochner, "The Constitution does not speak of freedom of contract," and therefore the Supreme Court would neither recognize it nor protect it. Well, the Constitution does not speak of privacy either, and according to both Parrish and Footnote Four, that textual absence was a big problem for Douglas' and his Griswold opinion.

Nor did Douglas do himself any favors when it came to crafting his legal arguments. On the one hand, he began by repudiating the liberty of contract line of cases. "Overtones of some arguments suggest that Lochner v. New York should be our guide. But we decline that invitation," he wrote. Yet just two paragraphs later, Douglas proceeded to follow Lochner anyway when he cited two precedents from the 1920s, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), in which the Supreme Court relied directly on Lochner's expansive protection of liberty in order to reach its respective holdings. In Meyer, for instance, Justice James C. McReynolds nullified Nebraska's ban on teaching students in a foreign language on the grounds that it interfered with the economic liberty of a Bible teacher who worked at a private school. "Without doubt," McReynolds wrote, citing Lochner, the liberty protected by the 14th Amendment "denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life…and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Two years later, in Pierce, McReynolds extended that libertarian principle to overturn Oregon's Compulsory Education Act, which had forbidden parents from educating their children in private schools. "The child is not the mere creature of the state," McReynolds declared. Whether Douglas wanted to admit it or not, Lochner's DNA is plainly evident in his Griswold opinion.

'What Has Occurred May Occur Again'

For Justice Hugo Black, enough was enough. Griswold was a Lochner-ian ruling, and Black had no qualms about denouncing it as such. An ardent New Dealer when he joined the Supreme Court in 1938, Black was outraged by the reappearance of those old legal arguments on behalf of new unwritten rights. "I like my privacy as well as the next one," he declared in his Griswold dissent, "but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."

That remark captures Black's jurisprudence in a nutshell. When it came to the judicial enforcement of unenumerated rights, Black drew a bright line and refused to cross it. "I cannot accept a due process clause interpretation which permits life-appointed judges to write their own economic and political views into our Constitution," he argued, thereby linking Griswold to Lochner. Indeed, Black's Griswold dissent took direct aim at Douglas' use of the libertarian precedent set in Meyer and Pierce, "which elaborated the same natural law due process philosophy found in Lochner v. New York." That approach, he told his colleagues, "is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights."

Much like Learned Hand and Felix Frankfurter, Hugo Black never forgot his outrage over the Supreme Court's earlier use of the 14th Amendment to attack Progressive and New Deal-era legislation. "There is a tendency now among some," Black observed in 1968, "to look to the judiciary to make all the major policy decisions of our society under the guise of determining constitutionality…. To the people who have such faith in our nine justices, I say that I have known a different court from the one today. What has occurred may occur again."

Unhappily for these old-line Progressives, however, the call for judicial deference fell on increasingly deaf liberal ears as the 20th century entered its seventh decade. But there was at least one person paying attention to what they had to say. At Yale Law School, a young professor named Robert Bork dusted off the Progressive case for judicial restraint and began refurbishing it into an intellectual weapon he might wield on behalf of conservative legal goals.

"In wide areas of life," Bork would write, "majorities are entitled to rule, if they wish, simply because they are majorities." That approach eventually became the default position of the conservative legal establishment.

But at the same time that Bork was setting the intellectual pace on the right, a new breed of libertarian legal thinkers were beginning to craft an ambitious agenda of their own, one that would soon put them on a collision course with the majoritarian jurisprudence championed by Bork. Why the impending conflict? The answer is simple. Individual liberty comes first, the libertarians declared, not majority rule.

This article is adapted from Overruled: The Long War for Control of the U.S. Supreme Court by permission of Palgrave Macmillan, an imprint of St. Martin's Press LLC.