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Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights

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Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights Michigan Law Review Volume 83 Issue 1 1984 Consequences of Supreme Court Decisions Upholding individual Constitutional Rights Jesse H. Choper University of California, Berkeley Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Jurisprudence Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation Jesse H. Choper, Consequences of Supreme Court Decisions Upholding individual Constitutional Rights, 83 MICH. L. REV. 1 (1984). Available at: https://repository.law.umich.edu/mlr/vol83/iss1/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. CONSEQUENCES OF SUPREME COURT DECISIONS UPHOLDING INDIVIDUAL CONSTITUTIONAL RIGHTS Jesse H. Choper* TABLE OF CONTENTS INTRODUCTION .•••...••••••••.••••.••• •'. • • • • • • • • . • • • • • • • • • . 4 I. COMPLEXITIES OF MEASUREMENT • • • • . • • . • • . • • • • . 7 II. SOME ILLUSTRATIONS PRIOR TO 1935.................. 12 A. The Post-Civil War Period . 12 B. The "Lochner" Era . 13 III. THE HUGHES, STONE, AND VINSON COURTS........... 14 A. Rights of the Accused. 15 1. Coerced Confessions . 15 2. Appointed Counsel . 15 a. Federal prosecutions . 15 b. State prosecutions. 16 B. Free Speech: Labor Picketing . 17 C. Religious Freedom: Jehovah's Witnesses............. 18 D. Company Towns................................... 19 E. Racial Discrimination . 19 1. Voting......................................... 19 2. Housing....................................... 21 3. Education . 22 IV. THE WARREN COURT................................... 25 A. Racial Separation . 25 1. Segregation . 25 2. Miscegenation . 28 * Dean and Professor of Law, University of California, Berkeley. B.S. 1957, Wilkes College; LL.B. 1960, University of Pennsylvania; D. Hu. Litt. 1967, Wilkes College. - Ed. At one time or another, I have burdened about two-thirds of my colleagues at Boalt Hall (as well as at other departments at Berkeley) for counsel and criticism in respect to this work. I wish to express my appreciation to all of them for their valuable comments (and for their patience), to Professor Michael E. Smith for initially prodding my efforts, and to the following former stu­ dents for their able research assistance: Donna J. Brorby, Class of 1977; Susan Feller, Class of 1980; Violet Elizabeth Grayson, Class of 1982; John T. Hightower, Class of 1983; Stevan C. Kalman, Class of 1975; Esther Y. Kim, Class of 1983; Leonard J. Martiniak, Class of 1974; Alison S. Melnick, Class of 1983; John A. O'Malley, Class of 1981; Steven M. Quevedo, Class of 1985; David H. Rose, Class of 1983; Stephen B. Sadowsky, Class of 1979; Robert G. Seeds, Class of 1983; Robert J. Whalen, Class of 1978. 1 2 Michigan Law Review [Vol. 83:1 B. Rights of the Accused . 30 1. Exclusionary Rule . 30 2. Equality for the Poor . 33 a. At trial. 33 b. On appeal. 35 3. Line-ups. 36 4. Jury Trial . 39 5. Self-Incrimination.............................. 41 6. Cruel and Unusual Punishment. 42 7. Commitment of Mentally Ill. 44 8. Juveniles . 46 9. Military Justice................................ 55 10. In General . 57 C. Free Expression and Association.................... 58 1. Censorship..................................... 58 2. Defamation . 63 3. Loyalty-Security. 66 4. Obscenity . 68 5. Group Legal Services........................... 74 D. Religious Freedom: Public Schools . 77 1. Prayers . 77 2. Evolution . 79 E. Sexual Conduct: Contraception . 82 F. Right to Vote . 85 1. Denials: In General. .. .. .. .. .. .. .. .. 85 2. Poll Taxes . 88 3. Dilution: Apportionment . .. .. .. .. .. 90 4. Ballot Restrictions. 95 G. Discrimination Against New Residents . 98 H. Debtors' Rights: Wage Garnishment . 102 I. Expatriation . 104 V. THE BURGER COURT • • .. • .. .. .. • .. .. .. .. .. .. .. .. .. .. .. 106 A. Rights of the Accused. 107 1. Search and Seizure. .. .. .. .. .. .. .. .. .. .. .. .. 107 a. Persons present during lawful search . 107 b. Arrest at suspect's home.. .. .. .. .. .. .. .. .. 109 2. Equality for the Poor. 112 a. Right to counsel . 112 i. Preliminary hearings. .. .. .. .. .. 112 ii. Misdemeanor trials . .. .. .. .. .. .. .. 114 iii. Enhanced punishment . .. .. .. .. .. 116 b. Sentence . 117 October 1984] The Supreme Court and Individual Rights 3 3. Self-Representation............................. 119 4. Double Jeopardy............................... 121 a. Collateral estoppel . 121 b. Insufficient evidence . 122 c. Successive state-municipal prosecutions . 123 5. Capital Punishment . 124 6. Prisoners .... ~. 126 a. Disciplinary proceedings..................... 126 b. Good conduct credit . 130 7. Parole and Probation Revocation . 130 8. Juveniles . 135 a. Burden ofproof . 135 b. Reprosecution as adult . 136 B. Commitment of Mentally Ill . 138 1. Incompetency To Stand Trial................... 138 2. Continued Involuntary Institutionalizatioµ . 142 C. Procedural Due Process............................ 146 1. Denial of Welfare Benefits. 146 2. Divorce Filing Fees............................. 150 3. Denial of Child Custody . 152 4. Suspension from Public Schools . 153 5. Termination of Utility Service. 157 6. Adjudication of Paternity . 158 D. Free Speech, Press and Association . 162 1. Commercial Advertising . 162 2. Patronage . 169 3. Access to Criminal Trials . 172 4. Right of Reply Laws . 173 5. Compulsory Unionism.......................... 175 E. Religious Freedom . 179 1. Compulsory Education Laws. 179 2. Financial Aid to Parochial Schools . 181 F. Sexual Conduct: Abortion . 183 G. Just Compensation . 190 H. Equal Protection . 194 1. Racial Separation . 194 2. Aliens . 197 3. Gender........................................ 199 4. Illegitimate Children ....... ·. 203 I. Right To Vote. 206 1. Fees for Filing in Primaries . 206 2. Restrictions on Crossovers. 208 4 Michigan Law Review [Vol. 83:1 POSTSCRIPT • . • • . • . • • . • • • • • . • • • • • • • • . • • • • • • • • • • . • • • • • • • • • • • 210 INTRODUCTION Preserving the constitutional rights of individuals against abridg­ ment by popular majorities is probably the most frequently voiced - and, in my judgment, is the most soundly based - justification for the Supreme Court's exercising the awesome power of judicial review. 1 But to state this as a matter of theory falls far short of demonstrating that the Court's efforts in this regard have had truly meaningful impact. Indeed, distinguished observers have contended during most peri­ ods of our history that reliance on the Court for the task of safeguard­ ing personal liberties is misplaced. Henry Steele Commager complained in 1943 that the judicial record in the field of individual rights "is practically barren . as far as federal legislation is con­ cerned. "2 Four years later John Frank, considering judicial review of state actions, observed that "for the most part, the civil rights limita­ tions on the states have been a collection of magnificent trifies."3 Even during the heyday of the Warren era, Robert Dahl concluded in 1967 that "it is doubtful that the fundamental conditions of liberty in this country have been altered by more than a hair's breadth"4 as a result of the judiciary's invalidation of congressional action, and he reiter­ ated this view with but the slightest qualification in 1972.5 And in 1975 another commentator opined that overall "[t]he traditional con­ cept of the Court as the champion of minority rights . is largely incorrect. " 6 Moreover, whatever the usually more favorable conclusions con­ cerning the Justices' endeavors during the relatively short period of the Warren Court, the product of its successor has regularly been found sorely wanting in its protection of personal freedoms. Thus, commenting on the.Burger Court's 1972-1973 efforts, Norman Dor­ sen, then general counsel of the American Civil Liberties Union, ob- 1. See generally J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL PoLmCAL PROCESS 60-70 (1980). 2. H. CoMMAGER, MAJORITY RULE AND MINORITY RIGHTS 47 (1950). 3. Frank, Review and Basic Liberties, in SUPREME CoURT AND SUPREME LAW 109, 139 (E. Cahn ed. 1954); see also Ulmer, Judicial Review as Political Behavior: A Temporary Check on Congress, 4 AD. SCI. Q. 426 (1959). 4. R. DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES: CONFLICT AND CONSENT 166 (1967). 5. R. DAHL, DEMOCRACY IN THE UNITED STATES: PROMISE AND PERFORMANCE 203·04 (2d ed. 1972). 6. Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795, 809 (1975) (emphasis in original). October 1984] The Supreme Court and Individual Rights 5 served that "[a]n entire generation of young Americans has come of age accustomed to looking to the Supreme Court to protect individual rights," but that "the first full year of the Burger Court reveals quite distinctly that this period has ended."7 Similarly, in the preface to his.
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