A Progressive "History" of the Supreme Court

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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.

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  1. Bill Ayres and his wife could be the first married couple on the court.

  2. Any chance Obama will fuck up the pick so bad that we end up with another Clarence Thomas? Because that would be pretty sweet.

    Ive seen no evidence that Obama has the competence to pick someone “correctly”.

  3. Throughout American history, conservative federal judiciaries have stymied change-minded administrations (and state governments)

    Silly me. All along I was thinking that the judiciary was supposed to act as a check on executive and legislative power. “I would have got away with it too, if it wasn’t for you nosy Constitution Kids!”

  4. Pesky checks and balances.

    We’ve got the right guy in the Oval Office, now. Just disband the Supreme Court, and send Congress home.

    Let our thousand years of People’s Paradise begin!

  5. Damon W. Root,

    Re: the New Deal – before many of the initial measures of the New Deal were struck it should be noted that they were unlikely to get extended by Congress (many of them were time limited) because they proved to be so unpopular.

  6. What we don’t need from Obama: another Breyer! Here’s why:

    To those of us suffering under the delusion that the Constitution was supposed to “secure the Blessings of Liberty,” Breyer reveals that its purpose was “to create a framework for democratic government — a government that, while protecting basic individual liberties, permits citizens to govern themselves.” But how can it protect “individual liberties” when such protection is precisely what doesn’t allow “citizens to govern themselves”? Or is “basic” actually Breyerspeak for as few as possible?

    At this point a certain feeling may be creeping over many, an eerie kind of d?j? vu. It grows only stronger when Dionne reclaims the mic. “Breyer’s argument,” he explains, “leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people’s representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them.” Now that tore away the disguise, didn’t it? This isn’t the “living document”/”evolving Constitution” rhetoric that the Left’s been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the “intentions” of the Framers of the Constitution — who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms — as his alter ego — the monstrous presence of …

    READ THE ENTIRE ARTICLE.

  7. You should add that it was Big Business, led by the railroad corporations, that opposed segregated rail cars and the Plessy v. Ferguson decision that gave us “separate but equal.”

  8. But how can it protect “individual liberties” when such protection is precisely what doesn’t allow “citizens to govern themselves”?

    How does protecting individual liberties keep citizens from governing themselves? Are you somehow using “themselves” collectively, where “governing themselves” means “telling other people what to do” instead of “running their own lives?”

  9. Once “President Franklin Roosevelt finally turned the Supreme Court and lower federal courts around with new appointments”, he was also able to send thousands of Japansese-Americans to camps..

  10. Know what would be ideal? A Supreme Court made up of nine swing voters: jurists whose take on cases could not be predicted in advance, ones who did not fall dependably into blocs.

  11. Bill Ayres and his wife could be the first married couple on the court.

    Honestly. Give it a fucking rest. There are plenty of real things to worry about.

  12. select judges committed to faithfully interpreting progressive initiatives in line with Congress’ intent

    Silly me, I thought their job was to interpret the Constitution. I guess I’m too old-fashioned compared to these “progressive” types.

  13. Whoever President Obama picks, it should be someone who understands the gravity of the appointment.

    I’m conducting research on how American foreign policy affects popular support for terrorism. This research project (RP) involves a worldwide survey to measure popular support for terrorism. It is inspired by the overall abuse of power pursued by the George W. Bush administration precisely at a time of ever-increasing demand for international cooperation and diplomacy. This RP maintains that the Bush administration’s foreign policies of unilateralism, preemption, and military hegemony (commonly referred to as the Bush Doctrine) represent a radical break from traditional American foreign policy. It further asserts a correlation between popular support for terrorism and a strong dissatisfaction with the status quo as upheld by the global hegemonic power.
    Even though the Bush administration is no longer in office, this correlation is still relevant today as, without a clearly articulated Obama doctrine as of yet, we have no indication that American foreign policy will change course anytime soon. More broadly, a correlation between oppressive American foreign policy in general and popular support for terrorism would be of great interest to international relations (IR) scholars of all theoretical backgrounds- as America is the global hegemon. And for this reason, American foreign policy has a tremendous impact on the rest of the world. It can be used to secure peace and prosperity in the world (and along with it American credibility and legitimacy), or it can give rise to anti-American coalitions, create inefficiency through a loss of international cooperation, and diminish what legitimacy America may still enjoy as the leader of the international community.
    During the eight years of the George W. Bush administration, we witnessed the latter at unprecedented levels. With a new administration in the Oval Office, research of this nature can prove invaluable in championing a more benevolent and multilateral American foreign policy in the future. Finally, measuring popular support for terrorism will afford us the ability to construct a model that demonstrates the demographic composition of a society supportive of terrorism versus one that is not. This model, in turn, should provide a method of measuring and predicting 1) the potential for terrorism in any given society, 2) the direction that acts of terrorism tend to be moving in (e.g. westward, eastward, or remaining static), and 3) broad trends in the support for terrorism, such as whether popular support is increasing among moderates, Westerners, and so forth. The survey can be accessed at

    http://www.johnmaszka.com/SURVEY.html

    Please take a moment and fill out the survey. The long-term goal of this project is to facilitate a more diplomatic American foreign policy in the years ahead.

    Thank you!

    John Maszka

  14. Whoever President Obama picks, it should be someone who understands the gravity of the appointment.

    I’d prefer he picks somebody who can read the fucking Constitution.

  15. More broadly, a correlation between oppressive American foreign policy in general and popular support for terrorism would be of great interest to international relations (IR) scholars of all theoretical backgrounds- as America is the global hegemon.

    John, it sounds like you’ve got your premises and conclusions all boxed up. What’s the survey for, exactly?

  16. Personally, I’ve always found the following mysterious. Why is it that appointments from Republican presidents are sometimes conservative, but often also as liberal as Souter or Blackmun – but that never happens the other way around? That is, we never seem to have gotten any appointments from Democrats who turned out to be conservative after all. It may just be coincidence, but I do wonder if something deeper isn’t going on…

  17. That is, we never seem to have gotten any appointments from Democrats who turned out to be conservative after all.

    I personally believe that Obama is going to appoint a female Hispanic because there aren’t enough women on the court and there has never been a Hispanic. So if he chooses his nominee based on a “new era of racial equality” instead of a preexisting liberal bias, it is quite possible that she will end up being conservative in at least a few areas.

  18. It’s lllllllllliving document…WHEEEEEEEEEEEEEEEEEEEEEEEEeeeeeeeeeeeeeeeeeeee!!!!!!!!!!!!!!

    So if he chooses his nominee based on a “new era of racial equality” instead of a preexisting liberal bias, it is quite possible that she will end up being conservative in at least a few areas.

    Impossible. Minorities vote in very predictable ways. Take Clarence Thomas…

    Oh wait.

  19. I’d prefer he picks somebody who can read the fucking Constitution.

    There have been a lot of justices who can read the fucking Constitution. What we really need are justices that can read the United States Constitution.

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