A Progressive "History" of the Supreme Court

In today's Wall Street Journal, Jess Bravin writes that President Barack Obama is likely to replace retiring Supreme Court Justice David Souter with a nominee who "will not only defend the liberal jurisprudence that reshaped American society in the mid-20th century, but who may also aim to build a progressive legal vision for the century ahead." That's certainly what Obama's most left-leaning supporters would like to see. In a long American Prospect article that appeared a few days before news of Souter's retirement broke, Doug Kendall of the Constitutional Accountability Center and Simon Lazarus of the National Senior Citizens Law Center argued that Obama should claim the "constitutional high ground" by articulating a boldly progressive vision of the Constitution's past and future:

Throughout American history, conservative federal judiciaries have stymied change-minded administrations (and state governments): during the aborted Reconstruction Era following the Civil War; during the early 20th-century Progressive Era; and during the first several years of the New Deal until 1937 when President Franklin Roosevelt finally turned the Supreme Court and lower federal courts around with new appointments. To avoid a reprise of those dreary episodes, President Obama will have to carefully select judges committed to faithfully interpreting progressive initiatives in line with Congress' intent, and be prepared to muster 60 Senate votes to confirm them.

There are a whole lot of things wrong with this one little paragraph. For starters, it's extraordinarily misleading to blame the failures of Reconstruction on "conservative" federal judges. In The Slaughter-House Cases, the 1873 decision that gutted the Privileges or Immunities Clause from the 14th Amendment and thus helped cripple Reconstruction, it was the conservative/libertarian Justice Stephen Field who authored the Court's most stinging and eloquent dissent. (A dissent, it's worth noting, that Kendall and the Constitutional Accountability Center have previously praised.) Similarly, the actions of "change-minded" Progressive Era politicians proved absolutely disastrous for African Americans and other minorities. As the historian David Southern has documented, Jim Crow laws, lynching, segregation, race baiting, and disfranchisement "went hand-in-hand with the most advanced forms of southern progressivism." Some of the few bright spots among these dreary episodes came when conservative/libertarian judges struck down "progressive initiatives in line with Congress' intent." This happened all too rarely, of course, but that doesn't mean that it didn't happen. Most importantly, in the 1917 case Buchanan v. Warley the Supreme Court struck down a residential segregation law for violating the 14th Amendment right to "acquire, use, and dispose" of private property. That was the NAACP's first major victory before the Court, argued by the great libertarian lawyer and activist Moorfield Storey. And it wasn't a progressive victory, it was a classical liberal one, rooted equally in individualism and economic rights. Kendall and Lazarus conveniently neglect to mention any of that in their rosy historical telling, but their silence doesn't make it any less true.