DOCSLIB.ORG

The Supreme Court in the 21St Century

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Supreme Court in the 21St Century The Supreme Court in the 21st Century Geoffrey R. Stone Abstract: How does the Supreme Court serve the “common good”? What is the Court’s responsibility, as the ultimate interpreter of the Constitution, in our constitutional system of government? This essay ex- plores that question with an eye on the recent performance of the Court in highly controversial and divisive cases. What explains the Court’s decisions in cases involving such issues as campaign ½nance regulation, gun control, abortion, af½rmative action, health care reform, voting rights, and even the 2000 presiden- Downloaded from http://direct.mit.edu/daed/article-pdf/142/2/36/1830192/daed_a_00202.pdf by guest on 27 September 2021 tial election? This essay argues that there is a right and a wrong way for the Supreme Court to interpret and apply the Constitution; and whereas the Warren Court properly understood its responsibilities, the Court in more recent decades has adopted a less legitimate and more troubling mode of constitutional interpretation. The Supreme Court plays an essential role in the American constitutional system. As John Roberts stated in his con½rmation hearings, the role of the Court is to serve as a neutral and detached “umpire” when it enforces the fundamental guarantees of our Constitution.1 To ful½ll that essential role, the Court must have the con½dence and respect of the Amer- ican people. This is a tricky business because when the Court enforces the guarantees of our Consti- GEOFFREY R. STONE, a Fellow of tution, it usually frustrates the will of the majority. the American Academy since 1990, That is, when it holds a law unconstitutional it is in is the Edward H. Levi Distin- effect telling the majority of citizens who supported guished Service Professor of Law that law that they cannot do what they want to do. at the University of Chicago Law This is not the way to be popular. School. His books include Top Secret: When Our Government Keeps Nonetheless, the Supreme Court has consistently Us in the Dark (2007), War and Lib- been the most respected of the three branches of the erty: An American Dilemma, 1790 to federal government. This is so because, although the Present (2007), and Perilous the Court often frustrates the short-term preferences Times: Free Speech in Wartime from of the majority, the public generally seems to under- the Sedition Act of 1798 to the War on stand that it is acting in a principled manner that Terrorism (2004). He is working on will serve the long-term interests of the nation. a new book, Sexing the Constitution, which will explore the historical Since 2000, however, the percentage of Americans evolution in Western culture of who approve of the way the Supreme Court han- the intersection of sex, religion, dles its responsibilities has fallen from 62 percent and law. to only 46 percent. Indeed, in recent years the © 2013 by the American Academy of Arts & Sciences 36 Court’s approval rating has fallen to its the opposing-party senators opposed con- Geoffrey R. lowest level since polling began in 1972.2 ½rmation. Since 2000, 74 percent of the Stone In this essay, I explore three possible opposing-party’s senators voted against reasons for the decline in public respect con½rmation. This is an extraordinary for the Supreme Court: 1) the politiciza- shift. In the four con½rmations since tion of the con½rmation process; 2) the 2000, 67 percent of Democrats voted polarization and apparent politicization against Roberts and Alito, and 81 percent of the justices; and 3) the Court’s current of Republicans voted against Sotomayor approach to constitutional interpretation. and Kagan. Even more striking, the four most recent nominees were viewed at the Conventional wisdom says that the con- time of con½rmation as more moderate on average than the eighteen nominees ½rmation process for Supreme Court jus- Downloaded from http://direct.mit.edu/daed/article-pdf/142/2/36/1830192/daed_a_00202.pdf by guest on 27 September 2021 tices is now terribly broken. The prevailing put forth between 1964 and 2000. Thus assumption is that the process has become the dramatic change in voting since 2000 so polarized and so politicized that nom- cannot be explained by any shift in the inees feel they must mask their views from perceived ideologies of the nominees members of the Senate in a way that makes themselves.6 informed consideration impossible. As one Several factors seem to have contributed commentator has observed, many “Amer- to this much more polarized approach to icans would like to think the manner in Supreme Court con½rmations. First, the which people become justices on the Court’s most controversial decision in the Supreme Court is governed by merit and years leading up to this era–Bush v. Gore7 objectivity,” but “recent events suggest –undoubtedly highlighted the ideological something very different.”3 Supreme Court inclinations of the justices in both the nominations, it is said, “have become pub- public and political consciousness. In that lic pitched battles involving partisans, decision, there was a bitter divide between ideological groups, single-issue groups, and the more conservative and more liberal the press.”4 The common refrain is that justices, with dramatic consequences for “if only we could get back to the way we the nation, at a moment when Americans did things in the past, the process would were paying close attention to the Court. be so much better.” The role of ideology could not have been This turns out to be mostly correct. In clearer, and it was missed by neither the one sense, though, the assessment is public nor their elected representatives. wrong. It is usually assumed that the Second, historically the con½rmation change in the Supreme Court con½rma- process was a largely non-public event. tion process began with the Robert Bork The press has always covered the most con½rmation battle in 1987, but in fact it controversial nominees, such as Alexander did not occur until after 2000.5 The change, Wolcott in 1811, Louis Brandeis in 1916, though, has been dramatic. Between 1964 and Hugo Black in 1937; but apart from and 2000, only 27 percent of eighteen such rare exceptions, the public was Supreme Court nominees received twenty largely unaware of–and uninterested in– or more negative votes in the Senate. In the details of nomination and con½rma- the four con½rmations since 2000, 100 tion. The process therefore had little percent of the nominees (Roberts, Alito, political salience. Today, however, the Sotomayor, and Kagan) received more news media cover Supreme Court nomi- than twenty negative votes. Moreover, be- nees as they do presidential candidates; tween 1964 and 2000, only 30 percent of and senators, presidents, and nominees 142 (2) Spring 2013 37 The are all acutely aware that television cam- As public law expert Richard Pildes reports, Supreme eras are beaming their faces and words the political parties are now “internally Court in the 21st to millions of Americans. People eagerly more uni½ed and coherent, and externally Century await the opportunity to watch the hear- more distant from each other, than any- ings “to see whether the nominee sur- time over the last 100 years.” Indeed, “in vives.” As legal scholar Chris Eisgruber 1970, moderates constituted 41 percent of has observed, the hearings now take on the Senate; today, they are 5 percent.” the aura of “a high-stakes reality show.”8 The center “has all but disappeared.”10 This attention has dramatically increased In the con½rmation process, this has sig- the political salience of the process. ni½cantly magni½ed the effects of the Third, the politicization of the con½r- other three factors. mation process has been made even more The impact of these four factors seems Downloaded from http://direct.mit.edu/daed/article-pdf/142/2/36/1830192/daed_a_00202.pdf by guest on 27 September 2021 dramatic by the increasingly aggressive clear. With a heightened public awareness involvement of interest groups. Although of the central role the Supreme Court plays such groups have long played a role in the in resolving fundamental and often highly process, there has been a dramatic in- controversial conflicts in American soci- crease in interest-group participation. An ety, a greater public appreciation of the average of 1.6 interest groups participated political/ideological nature of the Court’s in the hearings for the nine nominees be- decision-making process, effective mech- tween 1952 and 1967; the average rose to anisms–such as cable news programs, 8.8 for the nine nominees between 1968 radio talk shows, the Internet, and ener- and 1983; and it rose again to 27.6 for the getic interest groups–to bring public and eight nominees between 1984 and 1994. political pressure to bear on senators, and The average number of interest groups a political environment that is increas- has skyrocketed to almost one hundred ingly polarized for reasons unrelated to for the four nominees since 2000.9 Not the con½rmation process, the traditional only do these groups attempt directly to understanding that senators ordinarily persuade senators to their point of view, should err on the side of deference to rea- but they often carry out aggressive public sonable presidential nominations has relations campaigns to gather public sup- fallen by the boards. The consequence is port by portraying nominees as either a highly politicized and polarized con½r- harmful or helpful to the political goals of mation process unlike anything we have their members, which may involve such seen before. divisive issues as abortion, af½rmative ac- tion, law enforcement, capital punishment, It is often thought that, as in Bush v.
Load more

Recommended publications
  • Constitutional Avoidance and the Roberts Court Neal Devins William & Mary Law School, [email protected]
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2007 Constitutional Avoidance and the Roberts Court Neal Devins William & Mary Law School, [email protected] Repository Citation Devins, Neal, "Constitutional Avoidance and the Roberts Court" (2007). Faculty Publications. 346. https://scholarship.law.wm.edu/facpubs/346 Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs CONSTITUTIONAL A VOIDANCE AND THE ROBERTS COURT Neal Devins • This essay will extend Phil Frickey's argument about the Warren Court's constitutional avoidance to the Roberts Court. My concern is whether the conditions which supported constitutional avoidance by the Warren Court support constitutional avoidance by today's Court. For reasons I will soon detail, the Roberts Court faces a far different Congress than the Warren Court and, as such, need not make extensive use of constitutional avoidance. In Getting from Joe to Gene (McCarthy), Phil Frickey argues that the Warren Court avoided serious conflict with Congress in the late 1950s by exercising subconstitutional avoidance. 1 In other words, the Court sought to avoid congressional backlash by refraining from declaring statutes unconstitutional. Instead, the Court sought to invalidate statutes or congressional actions based on technicalities. If Congress disagreed with the results reached by the Court, lawmakers could have taken legislative action to remedy the problem. This practice allowed the Court to maintain an opening through which it could backtrack and decide similar cases differently without reversing a constitutional decision. In understanding the relevance of Frickey's argument to today's Court, it is useful to compare Court-Congress relations during the Warren Court of the late 1950s to those during the final years of the Rehnquist Court.
    [Show full text]
  • The Warren Court and the Pursuit of Justice, 50 Wash
    Washington and Lee Law Review Volume 50 | Issue 1 Article 4 Winter 1-1-1993 The aW rren Court And The Pursuit Of Justice Morton J. Horwitz Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons Recommended Citation Morton J. Horwitz, The Warren Court And The Pursuit Of Justice, 50 Wash. & Lee L. Rev. 5 (1993), https://scholarlycommons.law.wlu.edu/wlulr/vol50/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. THE WARREN COURT AND THE PURSUIT OF JUSTICE MORTON J. HoRwiTz* From 1953, when Earl Warren became Chief Justice, to 1969, when Earl Warren stepped down as Chief Justice, a constitutional revolution occurred. Constitutional revolutions are rare in American history. Indeed, the only constitutional revolution prior to the Warren Court was the New Deal Revolution of 1937, which fundamentally altered the relationship between the federal government and the states and between the government and the economy. Prior to 1937, there had been great continuity in American constitutional history. The first sharp break occurred in 1937 with the New Deal Court. The second sharp break took place between 1953 and 1969 with the Warren Court. Whether we will experience a comparable turn after 1969 remains to be seen.
    [Show full text]
  • Earl Warren: a Political Biography, by Leo Katcher; Warren: the Man, the Court, the Era, by John Weaver
    Indiana Law Journal Volume 43 Issue 3 Article 14 Spring 1968 Earl Warren: A Political Biography, by Leo Katcher; Warren: The Man, The Court, The Era, by John Weaver William F. Swindler College of William and Mary Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Judges Commons, and the Legal Biography Commons Recommended Citation Swindler, William F. (1968) "Earl Warren: A Political Biography, by Leo Katcher; Warren: The Man, The Court, The Era, by John Weaver," Indiana Law Journal: Vol. 43 : Iss. 3 , Article 14. Available at: https://www.repository.law.indiana.edu/ilj/vol43/iss3/14 This Book Review is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. BOOK REVIEWS EARL WARREN: A POLITICAL BIOGRAPHY. By Leo Katcher. New York: McGraw-Hill, 1967. Pp. i, 502. $8.50. WARREN: THEi MAN, THE COURT, THE ERA. By John D. Weaver. Boston: Little. Brown & Co., 1967. Pp. 406. $7.95. Anyone interested in collecting a bookshelf of serious reading on the various Chief Justices of the United States is struck at the outset by the relative paucity of materials available. Among the studies of the Chief Justices of the twentieth century there is King's Melville Weston, Fuller,' which, while not definitive, is reliable and adequate enough to have merited reprinting in the excellent paperback series being edited by Professor Philip Kurland of the University of Chicago.
    [Show full text]
  • Property and the Roberts Court
    Property and the Roberts Court John G. Sprankling I. INTRODUCTION How do property owners fare before the Roberts Court? Quite well. Owners prevail in 86% of civil property-related disputes with government entities.1 But this statistic does not tell the whole story. This Article demonstrates that under the leadership of Chief Justice Roberts the Court has expanded the constitutional and statutory protections afforded to owners to a greater extent than any prior Court. It analyzes the key trends in the Court’s jurisprudence that will shape its decisions on property issues in future decades. Almost 100 years ago, Justice Holmes remarked that government regulation of property which went “too far” would be unconstitutional; yet the precise line between permissible and impermissible action has never been drawn.2 The issue has generated debate through much of American history, particularly in recent decades as the influence of conservative ideology on the Supreme Court has expanded. The Burger and Rehnquist Courts were broadly viewed as more sympathetic to private property than the Warren Court had been. However, the most controversial anti-owner decision of the modern era, Kelo v. City of New London,3 was decided in the final year of the Rehnquist Court. In Kelo, the Court held that the city was empowered to condemn owner-occupied homes and transfer them to private developers as part of an economic redevelopment project4―a ruling that ignited a firestorm of protest across the nation. In his confirmation hearings to serve as Chief Justice, John Roberts pledged to act as an “umpire” on the Court, a person with “no agenda” Distinguished Professor of Law, University of the Pacific, McGeorge School of Law.
    [Show full text]
  • The Warren Court and Criminal Justice: a Quarter-Century Retrospective*
    University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1995 The aW rren Court and Criminal Justice: A Quarter-Century Retrospective Yale Kamisar University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/276 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Criminal Procedure Commons, Evidence Commons, Fourth Amendment Commons, and the Supreme Court of the United States Commons Recommended Citation Kamisar, Yale. "The aW rren Court and Criminal Justice: A Quarter-Century Retrospective." Tulsa L. J. 31, no. 1 (1995): 1-55. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. TULSA LAW JOURNAL Volume 31 Fall 1995 Number 1 THE WARREN COURT AND CRIMINAL JUSTICE: A QUARTER-CENTURY RETROSPECTIVE* Yale Kamisart THE CLOSING YEARS OF THE WARREN COURT ERA ........... 3 THE RELEVANCE OF THE STRUGGLE FOR CIvIL RIGHTS ....... 6 CRITICISM OF MIRANDA - FROM OPPOSITE DIRECTIONS ...... 8 How DID MRANDA FARE IN THE POST-WARREN COURT ERA ? ................................................... 13 The Impeachment Cases ................................... 13 What is "Interrogation"Within the Meaning of Miranda?.. 14 The Edwards Case: A Victory for Miranda in the Post- Warren Court Era ....................................... 15 The Weaknesses in the Edwards Rule ...................... 17 What Does it Mean to Say That the Miranda Rules Are Merely "Prophylactic"? ................................. 19 Why the Initial Hostility to Miranda Has Dissipated ......
    [Show full text]
  • The Warren Court and American Federalism: a Preliminary Appraisal
    THE WARREN COURT AND AMERICAN FEDERALISM-A PRELIMINARY APPRAISAL STANLEY H. FRIEDELBAUMt A TACKS UPON the Supreme Court during the past half-decade have centered Aabout judicial pronouncements which, critics contend, reflect an ex- cessively narrow view of state powers. While some of these criticisms question directly the institutional role of the Court, more often they represent expressions of displeasure with respect to a single holding or a particular line of decisions interpretive of federal-state relationships. Among hostile groups, the labeling of a decision as that of the "Warren Court"1 serves to evoke an emotional response usually reserved for the forum of partisan politics. Nor are such outbursts limited to persons or organizations ordinarily unconcerned or unacquainted with the judicial process. Indeed, the leadership for such "cru- sades" against the Court has come from professional associations which, in former years, could be counted among the most outspoken defenders of a vigorously assertive judiciary. 2 What factors have called forth the most recent barrage of invective from presumably responsible state advocates and their supporters in Congress? Has the Court deliberately reentered the political thicket from which it seemed to have emerged following the contest of the 1930's? Is the Court guilty of an excessive degree of judicial activism in the determination of federal-state is- sues? Exploration of these questions requires a reappraisal of the Court's behavior in those traditional but vital areas which relate to the apportionment of powers between nation and state. The bases of conflict will be familiar to all students of the American constitutional system and its development.
    [Show full text]
  • The Supreme Court Database Codebook
    The Supreme Court Database Codebook Supreme Court Database Code Book brick_2020_01 CONTRIBUTORS Harold Spaeth Michigan State University College of Law Lee Epstein Washington University in Saint Louis Ted Ruger University of Pennsylvania School of Law Sarah C. Benesh University of Wisconsin - Milwaukee Department of Political Science Jeffrey Segal Stony Brook University Department of Political Science Andrew D. Martin University of Michigan College of Literature, Science, and the Arts Document Crafted On September 21, 2020 @ 01:42 1 of 128 The Supreme Court Database Codebook Table of Contents INTRODUCTORY 1 Introduction 2 Citing to the SCDB IDENTIFICATION VARIABLES 3 SCDB Case ID 4 SCDB Docket ID 5 SCDB Issues ID 6 SCDB Vote ID 7 U.S. Reporter Citation 8 Supreme Court Citation 9 Lawyers Edition Citation 10 LEXIS Citation 11 Docket Number BACKGROUND VARIABLES 12 Case Name 13 Petitioner 14 Petitioner State 15 Respondent 16 Respondent State 17 Manner in which the Court takes Jurisdiction 18 Administrative Action Preceeding Litigation 19 Administrative Action Preceeding Litigation State 20 Three-Judge District Court 21 Origin of Case 22 Origin of Case State 23 Source of Case 24 Source of Case State 2 of 128 The Supreme Court Database Codebook 25 Lower Court Disagreement 26 Reason for Granting Cert 27 Lower Court Disposition 28 Lower Court Disposition Direction CHRONOLOGICAL VARIABLES 29 Date of Decision 30 Term of Court 31 Natural Court 32 Chief Justice 33 Date of Oral Argument 34 Date of Reargument SUBSTANTIVE VARIABLES 35 Issue 36 Issue Area
    [Show full text]
  • Come Back to the Nickel and Five:* Tracing the Warren Court's Pursuit of Equal Justice Under Law Jim Chen
    Washington and Lee Law Review Volume 59 | Issue 4 Article 7 Fall 9-1-2002 Come Back to the Nickel and Five:* Tracing the Warren Court's Pursuit of Equal Justice Under Law Jim Chen Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons, Courts Commons, and the Jurisprudence Commons Recommended Citation Jim Chen, Come Back to the Nickel and Five:* Tracing the Warren Court's Pursuit of Equal Justice Under Law, 59 Wash. & Lee L. Rev. 1203 (2002), https://scholarlycommons.law.wlu.edu/wlulr/vol59/ iss4/7 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Come Back to the Nickel and Five:* Tracing the Warren Court's Pursuit of Equal Justice Under Law Jim Chen** Table of Contents I. The Korematsu Conundrum ......................... 1204 II. The Nickel and Five ............................... 1212 A. The "Nickel": Fifth Amendment Due Process and "Reverse Incorporation" ...................... 1215 B. The "Five": Civil Rights Enforcement Under Section Five of the Fourteenth Amendment ........... 1228 C. Main Street U.S.A .............................. 1244 III. The Nixonburger Interregnum ........................ 1248 A. Nixon as Nemesis ........ ................. 1249 B. The Nickel and Five Survives ..................... 1251 C. Affirmative Action as Armageddon ................. 1264 IV. The Grand Rehnquisition ............................ 1280 V. The Fall of the House of Warren ...................... 1294 * It is somewhat deflating to explain the cultural allusion that inspired the title of one's law review article, but editing conventions dictate a word or two of clarification.
    [Show full text]
  • William O. Douglas As a Common Law Judge
    ESSAY WILLIAM 0. DOUGLAS AS A COMMON LAW JUDGE MELVIN I. UROFSKY* Few Justices of the United States Supreme Court created as much controversy during their lifetimes as did William 0. Douglas.1 During his record thirty-six years on the bench, he forcefully spoke on issues as wide-ranging as American foreign affairs and the environment; traveled around the world, visiting "strange lands and strange people"; 2 wrote dozens of books and articles on a variety of topics aimed at the general public; 3 and divorced and remarried three times.4 In addition, he cham- pioned the liberal position on nearly every issue before the Court. Justice Douglas's political and judicial liberalism, as well as his idiosyncratic lifestyle, infuriated conservatives. In 1970, these conservatives, led by then-Congressman Gerald R. Ford, attempted to impeach him.5 Of course, Douglas has not been without his champions. Upon his retirement from the Court, his former pupil, lifelong friend, and occa- sional colleague, Abe Fortas, declared that "[t]hroughout his life, Doug- las has fiercely occupied high ground-the highest that life on this earth offers. He is, of course, an idealist; but, for him, ideals are not abstrac- tions; they are objectives demanding present fulfillment."'6 One of his favorite law clerks, Vern Countryman, wrote extensively on Douglas and the enduring impact his opinions and dissents have had on American * Professor of History, Virginia Commonwealth University. B.A., Columbia University, 1961; Ph.D., Columbia University, 1968; J.D., University of Virginia, 1983. 1. Justice William 0. Douglas served on the Supreme Court from 1939-1975.
    [Show full text]
  • The Warren Court and the Concept of a Right
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1999 The Warren Court and the Concept of a Right David Luban Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1748 34 Harv. C.R.-C.L. L. Rev. 7 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Judges Commons, and the Supreme Court of the United States Commons The Warren Court and the Concept of a Right David Luban* The Warren Court is dead. None of its Justices remain on the bench- indeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid- 1980s consisted in considerable measure of theoretical defenses for War- ren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possi- ble that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not just the most liberal Su- preme Court in American history, but arguably the only liberal Supreme Court in American history. Is there any reason, beyond a nostalgia that is by no means univer- sally shared, to continue discussing the Warren Court? It seems that nearly everyone now agrees that judicial activism is pernicious and judicial re- straint desirable.
    [Show full text]
  • Building the Federal Judiciary (Literally and Legally): the Monuments of Chief Justices Taft, Warren, and Rehnquist†
    The Addison C. Harris Lecture Building the Federal Judiciary (Literally and Legally): The † Monuments of Chief Justices Taft, Warren, and Rehnquist * JUDITH RESNIK ABSTRACT The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of new claimants seeking an array of rights. William Rehnquist is identified with limiting both rights and access in favor of state court and of executive authority. He has been less well appreciated for his role in changing the institutional capacity of the federal courts. During the Rehnquist era, the budget of the federal courts doubled as staff and facilities expanded, in part by way of the largest federal building program since the New Deal. Over the course of the twentieth century and under the leadership of all three chief justices, the judiciary gained an increasingly robust corporate persona. Judges shifted their sights from “court quarters” to custom-designed courthouses † Copyright © 2012 Judith Resnik. * Arthur Liman Professor of Law, Yale Law School. All rights reserved. Judith Resnik. This Lecture built on and is related to the book Representing Justice: Inventions, Controversies, and Rights in City-States and Democratic Courtrooms (2011), co-authored with Dennis Curtis.
    [Show full text]
  • Conflict Among the Brethren: Felix Frankfurter, William O. Douglas And
    CONFLICT AMONG THE BRETHREN: FELIX FRANKFURTER, WILLIAM 0. DOUGLAS AND THE CLASH OF PERSONALITIES AND PHILOSOPHIES ON THE UNITED STATES SUPREME COURT MELVIN I. UROFSKY* Following the constitutional crisis of 1937, the personnel of the United States Supreme Court changed rapidly as Franklin Roosevelt named new Justices whom he believed committed to the modem views of the New Deal. Roosevelt appointees constituted a majority of the Court by 1942, but instead of harmony, the Court entered one of the most divi- sive periods in its history. The economic issues which had dominated the Court's calendar for nearly a half-century gave way to new questions of civil liberties and the reach of the Bill of Rights, and these cast the juris- prudential debate between judicial restraint and judicial activism in a new light. The struggle within the Court in the early 1940s can be ex- amined not only in terms of competing judicial philosophies, but by look- ing at personalities as well. Felix Frankfurter and William 0. Douglas, both former academics, both intimates of Franklin Roosevelt and par- tisans of the New Deal, both strong-willed egotists, and both once friends, personified in their deteriorating relationship the philosophical debate on the Court and how personality conflicts poisoned the once placid waters of the temple pool. I. THE PRE-COURT YEARS On January 4, 1939, shortly after Franklin D. Roosevelt had sent to the Senate the nomination of Felix Frankfurter as Associate Justice of the United States Supreme Court, a group of top New Dealers gathered to celebrate in the office of Secretary of the Interior Harold L.
    [Show full text]