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Home , Earl Warren, Warren Court

Harry N. Scheiber

Fifty years, almost to the day, after was con½rmed as chief justice of the in March 1954, the University of Cali- fornia, Berkeley commemorated the ’s legacy with a conference cosponsored by the Academy. The meeting was organized and hosted by uc Berkeley’s Earl Warren Le- gal Institute.

During his sixteen years as chief justice, War- ren was instrumental in advancing durable changes in American law in the cause of equal rights and democratic governance. The unique influence of the Warren Court went far beyond its most famous rulings, in Brown v. Board of Ed- ucation and other school desegregation cases. Thus the conference devoted several panels to analyses of the Court’s legacy in the areas of free speech and press, criminal law, federalism, and one-person/one-vote doctrine. In addition, Professor Jesse Choper of the Boalt Hall facul- ty, former Earl Warren , and three oth- er former clerks–Senior Judge James Brown- ing of the U.S. Ninth Circuit Court of Appeals, uc Berkeley Chancellor Emeritus I. Michael Heyman, and Professor Scott Bice of the Uni- versity of Southern –offered their reflections on Earl Warren’s character and achievements. (Judge Browning’s address is available on the Earl Warren Legal Institute website, www.law.berkeley.edu/cenpro/ earlwarren/constlaw.html.)

The Warren Court’s impact on the law reached in dramatic ways beyond America’s borders, a

© Yousuf Karsh/Retna Ltd. dimension of global constitutional development that is less well known than is the Court’s im- pact on American life and law. The conference Congress and the Earl Warren Court featured a justice of the Greek Supreme Court, Ioanni Dimitrakapolous, and scholars from Philip P. Frickey and Gordon Silverstein law faculties in Chile, Japan, Canada, , Commentaries by Neal Devins and Nelson W. Polsby and who considered how modern-day Introduction by Harry N. Scheiber changes in foreign jurisprudence and judicial behavior have reflected that wider impact. These papers were presented at a conference on “Earl Warren and the Warren Court: A Fifty-Year Retrospect,” held at the Boalt Hall School of Law at the , Berkeley, on Ineluctably the theme of the Warren Court’s February 27–28, 2004. “” cut across all the topical panels. It may be said that in every era of its history, from the days of ’s chief Philip P. Frickey is Richard W. Jennings Professor of Nelson W. Polsby is Heller Professor of Political Sci- justiceship to ’s, the Supreme Law at the University of California, Berkeley. He has ence at the University of California, Berkeley. He has Court has ruled in an “activist” vein in a vari- been a Fellow of the American Academy since 2002. been a Fellow of the American Academy since 1982. ety of causes. Although many of the conference Gordon Silverstein is assistant professor of political Harry N. Scheiber, who became a Fellow of the papers at Berkeley were concerned with inter- science at the University of California, Berkeley. American Academy in 2003, is director of the Earl pretive questions and case law given little at- Warren Legal Institute at the University of California, tention in previous scholarship, they reinforced Neal Devins is Goodrich Professor of Law, director Berkeley, and the Riesenfeld Professor of Law and the conclusion of Warren’s chief biographer, G. of the Institute of Bill of Rights Law, and professor History at the Boalt Hall School of Law, University Edward White, namely, that what distinguished of government at the William & Mary School of Law. of California, Berkeley. the Warren Court from many others was that

6 Bulletin of the American Academy Summer 2004 its activism “facilitated social change...and In 1951, in Dennis v. United States, the Supreme promote[d] the interests of the disadvantaged” When the Court strikes Court upheld the constitutionality of the Smith rather than defending established interests and down a federal statute as Act, which among other things outlawed the reinforcing the status quo. advocacy of overthrowing the national gov- ernment by force or violence. Dennis has come The focus of one of the panels at the Berkeley unconstitutional, ordinarily to be understood as a major deviation from the conference was a reappraisal of the relations Congress has no authority Court’s jurisprudence of free speech, for the between Congress and the Supreme Court dur- case allowed to stand a statute that outlawed ing Warren’s tenure. The Academy is current- to reenact the statute. advocacy of political ideas. ly assessing the interaction between Congress and the Court today–a collaborative study in- In fairly short order, the Court considered a branches has accelerated in recent years.1 One spired by the dramatic upsurge in the Rehnquist long string of cases involving alleged political interesting aspect of this relationship has been Court’s overturning of congressional statutes subversives–some prosecuted under the Smith the way in which the Court can limit direct con- in the rede½nition and defense of “federalism” Act, others dragged before legislative investi- flict with Congress while accomplishing many and “state sovereignty” principles. Two mem- gating committees bent on invading their pri- of the justices’ goals. A prime example of this bers of that Academy study, Philip P. Frickey and vacy of thought and association, still others strategy is when the Court avoids deciding Nelson W. Polsby (both, uc Berkeley), joined thrown out of public employment or kept out whether a federal statute is unconstitutional with Neal Devins (William & Mary School of of the organized bar on grounds of disloyalty, by interpreting the statute to be - Law) and Gordon Silverstein (uc Berkeley) as and a few threatened with loss of citizenship or ally unobjectionable. principal speakers on the Berkeley panel. deportation. In light of Dennis and the appar- For a host of reasons, this “rule of avoidance” ent capitulation to public pressure suggested Although these four authors do not agree on may seem prudent. When the Court strikes by it, one might have expected the Supreme how the functional relationship of judicial and down a federal statute as unconstitutional, or- Court to have feared to tread upon these pro- congressional power should be interpreted for dinarily Congress has no authority to reenact ceedings. Nonetheless, while the Court’s ac- the Warren Court period, there is a fascinating the statute. Assuming the Court will not over- tions were somewhat uneven, in many cases a common ground in that none of them accepts rule itself at some future point, the only way majority of justices made it more dif½cult for the revisionist idea (popular in some scholarly to overturn the Court’s decision is by constitu- these investigations and loyalty proceedings to quarters today) that the Warren Court was only tional amendment. Thus, the arguably awe- be conducted, and provided a measure of jus- marginally responsible for advances of the 1950s some, counter-majoritarian exercise of judicial tice to persons harmed by them. Rarely did the and 1960s in regard to equal protection, civil review–whereby as few as ½ve unelected jus- Court invalidate government action as uncon- rights, and democratic governance. tices with life tenure can displace the judgment stitutional; instead, using the rule of avoidance, The conference’s sponsorship was shared by of the entire elected Congress–should be very the Court generally found a nonconstitutional the Boalt Hall School of Law at Berkeley, where cautiously undertaken. Relatedly, it may seem ground for setting aside the proceeding. The Warren earned his law degree in 1914, and by wise to indulge in the assumption that Congress rule of avoidance, usually thought to be an in- the University’s Jefferson Lectures Endowment, would prefer the Court retain the statute, even strument of , became a nar- the Institute of Governmental Studies, and the if narrowed by a saving interpretation, rather row but sharp sword of judicial revision. In the Center for the Study of Law and Society. Addi- than strike it down. Moreover, if the Court in- space allotted to me, I shall examine a few ex- tional sponsors of the conference were the uc terprets the statute more narrowly than Con- amples of this indirect judicial technique and Berkeley Vice Chancellor for Research and the gress wishes, Congress can of course amend then consider its political aftermath. Robbins Collection and the Sho Sato Program the statute to make it broader and, in all likeli- In 1953, a year before Earl Warren became chief in Japanese and U.S. Law, both of the Boalt Hall hood, the constitutional question would come justice, Justice Frankfurter’s majority opinion School of Law. back to the Court eventually. For these and oth- in United States v. Rumely provided a textbook er reasons, the rule of avoidance is not a con- example of narrow but effective invalidation Later this year, the Institute of Governmental troversial approach among the justices. Studies Press at uc Berkeley will publish under of congressional action based on technicalities. my editorship the full papers from the entire As with just about everything else, however, Rumely, the secretary of an organization that, conference. the devil is in the details. In a recent study,2 I “among other things, engaged in the sale of examined a fascinating period, roughly paral- books of a particular political tendentiousness,” leling the McCarthy era, in which application refused to disclose to the House Select Commit- of the rule of avoidance allowed the Court to tee on Lobbying Activities the names of persons Philip P. Frickey avoid many direct confrontations with Con- who had made bulk purchases of such books. gress over extremely controversial matters. A He was convicted of violating a federal statute brief summary follows. that criminalized the failure to provide testimo- Managing Court-Congress ny or documents “upon any matter” under con- Confrontations: Interpretation to 1 Robert Post, “Congress & the Court,” Dædalus gressional inquiry. Frankfurter ½rst acknowl- Avoid Constitutional Issues 132 (3) (Summer 2003): 5–8. edged the serious First Amendment questions at stake when congressional committees engage The American Academy of Arts and Sciences 2 “Getting from Joe to Gene (McCarthy): The in sweeping inquiries concerning political ex- has launched a study of the relationship be- Avoidance Canon, Legal Process Theory, and pression and association. He also alluded to Narrowing Statutory Interpretation in the Early tween Congress and the Supreme Court, based Warren Court,” California Law Review (forthcom- the “wide concern” that had been raised about on the hypothesis that conflict between the ing, 2005). the intrusiveness of congressional investiga-

Bulletin of the American Academy Summer 2004 7 tions. In classic deference to the rule of avoid- informants who were not available for cross- vidual privacy without a valid public purpose. ance, Frankfurter concluded that it would be examination. The case was so ½shy that the so- “We have no doubt that there is no congres- inappropriate to address the serious constitu- licitor general, the Justice Department of½cer sional power to expose for the sake of expo- tional questions before considering whether in charge of Supreme Court litigation, refused sure,” Warren wrote, responding to counsel’s the House resolution authorizing the commit- to sign the brief and appear in defense of the argument, on behalf of Watkins, that the sole tee inquiry had in fact empowered the commit- sanction. In an odd coincidence, that task fell purpose for the questions posed “was to bring tee to seek the information Rumely had refused to the assistant attorney general for the civil di- down upon [him] and others the violence of to provide. Frankfurter stressed that the avoid- vision, Warren Burger, who shortly thereafter public opinion because of their past beliefs, ex- ance rule–developed in cases involving consti- was appointed to a federal appeals court and pressions, and associations.” But the decision tutional challenges to statutes–was even more who later succeeded Warren as chief justice. ended up rooted in a much narrower rationale: appropriate in the context of congressional res- the House had not de½ned the committee’s Relying upon the avoidance rule, Warren’s ma- olutions, which “secure passage more casually delegated investigatory responsibilities clearly jority opinion ducked the constitutional issues and less responsibly, in the main, than do enact- enough to allow the witness to know whether raised by the doctor’s attorneys by ½nding that ments requiring presidential approval.” Frank- the questions posed were pertinent to the in- the review board had no jurisdiction to under- furter justi½ed the canon in part as a technique vestigation the committee was allowed to un- take an investigation on its own motion–an to encourage both congressional responsibili- dertake. Pertinency was an element of the crim- argument not raised until the Court required it ty to constitutional obligations and judicial re- inal statute the witness had allegedly violated, to be briefed! Peters’s attorneys had sought to spect for a coequal branch. Frankfurter imple- but more to the main point, “[p]rotected free- forgo that argument to avoid giving the Court mented these policies by an aggressive clear- doms should not be placed in danger in the ab- a nonconstitutional out, but the strategy failed. statement requirement. “Whenever constitu- sence of a clear determination by the House or tional limits upon the investigative power of the Senate that a particular inquiry is justi½ed Congress have to be drawn by this Court,” he Rarely did the Court invali- by a speci½c legislative need.” In an odd way, wrote, “it ought only to be done after Congress Warren invoked the principles of avoidance to has demonstrated its full awareness of what is date government action as duck a range of constitutional issues, but ended at stake by unequivocally authorizing an inqui- up narrowly holding that the sanction of the ry of dubious limits.” The policies “strongly unconstitutional; instead, witness violated due process on the narrow counsel abstention from adjudication unless using the rule of avoidance, ground of the “vice of vagueness”–that he was no choice is left.” For Frankfurter, this judge- “not accorded a fair opportunity to determine driven interpretive approach was justi½ed as the Court generally found a whether he was within his rights in refusing to “in the candid service of avoiding a serious con- answer.” stitutional doubt.” nonconstitutional ground for Of course, if the committee’s charge was to in- Measured against this stringent standard, the setting aside the proceeding. vestigate communism–which everyone under- House resolution, which authorized the com- stood to be the committee’s task–the questions mittee to investigate “lobbying activities” in- posed were relevant. Surely Watkins knew what The Court’s somewhat covert undermining of tended to influence the legislative process, was the House wanted the committee to investigate. the government’s campaign against alleged insuf½ciently clear to empower the commit- The force of this contention can be acknowl- subversives reached its apotheosis in the 1956 tee to explore general attempts to affect public edged without undermining the rationale of term when the Court decided twelve cases in- opinion, such as through the distribution of Watkins, however. Warren used the narrow per- volving alleged subversives–and resolved every books. Nor could the discussion of the House tinency holding to shift responsibility to the one in their favor. The biggest bombshells were in contempt proceedings after Rumely refused House to monitor its committees under clear dropped on July 17, 1957, a day the Court’s de- to comply with the committee’s request pro- delegations of authority. The Court was in no tractors called “Red Monday,” when four major vide posthoc rati½cation of more expansive position to consider the actual dangers of com- cases were decided in this fashion. Two of them committee power: “it had the usual in½rmity munism to the country, much less how relevant merit brief mention here. of post litem motam, self-serving declartions.” the questions asked of Watkins were to any dealt with a challenge to real dangers, but it could at least call upon the A wonderful example of the lawyerly under- Watkins v. United States a contempt conviction for refusing to answer House to undertake that inquiry before autho- cutting of governmental abuse that arose after questions posed by a subcommittee of the House rizing witch hunts and ½shing expeditions by a Warren became chief justice is Peters v. Hobby. Un-American Activities Committee concern- committee. In that 1956 case, a prominent Yale medical pro- ing whether certain persons had been former fessor who had worked as a consultant to the The other Red Monday avoidance decision of members of the Communist Party. Chief Justice Public Health Service on nonclassi½ed matters note here was Justice Harlan’s opinion in Yates Warren’s majority opinion began with a long, was barred from further federal employment v. United States. The central issue in Yates for our pointed lecture to Congress about the dangers by a board charged with reviewing agency de- purposes was whether the Smith Act prohib- of “a new kind of congressional inquiry un- terminations of the disloyalty of federal employ- ited “advocacy and teaching of forcible over- known in prior periods of American history,” ees. The board’s procedures were remarkably throw as an abstract principle, divorced from “a new phase of legislative inquiry involv[ing] shoddy, even for the era: after the agency loy- any effort to instigate action to that end, so a broad-scale intrusion into the lives and affairs alty board had twice cleared him of any disloy- long as such advocacy [was] engaged in with of private citizens.” He then posited serious alty, the review board on its own motion con- evil intent.” The statutory text was expansive constitutional problems associated with con- ducted its own hearing and found him disloyal enough for this interpretation, as one of its pro- gressional investigations intruding into indi- based upon unsworn statements by unidenti½ed visions reached “whoever knowingly or will-

8 Bulletin of the American Academy Summer 2004 another case in the 1956 term, Harlan’s opinion ence, and a wonderfully counter-hegemonic The rev- in Yates (which Frankfurter joined) is an abom- measure that would have required lower courts olution of the Warren Court ination. But of course Harlan was concerned to ignore any Supreme Court decision “which much more with quasi-constitutional creativ- conflicts with the legal principle of adhering to had just begun with decisions ity than with statutory coherence. Yates may prior decisions and which is clearly based upon have left the Smith Act “a virtual shambles,” as considerations other than legal” (read: Brown v. that aroused opposition from one member of the Court of Appeals panel re- Board of Education). To some extent, of course, versed in Yates later grumbled, but it simulta- the Court had itself played into this, by using police and provided more neously helped reconstruct the American sys- the avoidance rule and other techniques that tem of freedom of expression while avoiding did not formally prevent congressional over- fodder for opportunistic any constitutional decision. It was a masterful ride of its decisions. But although the Court performance of avoidance theory–all the while had been careful to leave open the opportunity politicians. illuminating the submerged normativity and for congressional response, the other element fully advocates, abets, advises, or teaches the judicial power authorized by that approach. of the enterprise–admonition concerning con- stitutionally dubious government acts–had duty, necessity, desirability, or propriety of Decisions like these–though carefully crafted touched a sore spot in many sectors. Moreover, overthrowing or destroying the government of to avoid broadly deciding controversial consti- the ½ne points of procedural or interpretive the United States...by force or violence.” For tutional issues and to ensure that Congress had versus constitutional rulings tended to be lost Harlan, however, “[t]he distinction between at least a theoretical opportunity to respond and in the political uproar, never creating much of advocacy of abstract doctrine and advocacy have the next word on the subject–provoked a safe harbor for the Court once politics came directed at promoting unlawful action is one a ½restorm in Congress. By 1957, Southerners to the fore. As Walter Murphy, the esteemed that has been consistently recognized” in the in Congress, spoiling for a ½ght with the Court political scientist, explained, “the general in- Court’s First Amendment opinions. “We need over , had forged an Brown v. Board of Education directness of the Warren Court’s approach [did not, however,” he continued, “decide the issue anti-Court alliance with other lawmakers con- not] mask from jealous members of Congress before us in terms of constitutional compulsion, cerned about national security. The loose coali- the incontrovertible fact that the Justices were for our ½rst duty is to construe this statute. In tion railing against the abuse of judicial pow- setting in major areas of national doing so we should not assume that Congress er started its agitation after the 1955 term and affairs. That they were doing so more adroitly chose to disregard a constitutional danger zone gained signi½cant momentum after Red Mon- than had previous judges was an added source so clearly marked, or that it used the words ‘ad- day. They were not alone in their hostility. The of irritation.”4 vocate’ and ‘teach’ in their ordinary dictionary criminal procedure revolution of the Warren meanings when they had already been construed Court had just begun with decisions that aroused The short version of what followed is that both as terms of art carrying a special and limited opposition from police and provided more fod- Congress and the Court backed off. It took some connotation.” Dennis was narrowed down to a der for opportunistic politicians. The Court legislative legerdemain by Senate Majority case that upheld the Smith Act on the ground had also made no friends in the organized bar, Leader Lyndon Johnson to pull it off, but all that it criminalized advocacy directed at pro- which was livid with the direction of the Court the major Court-bashing bills failed to be en- moting unlawful action “at a propitious time” in general and with its bar admission decisions acted. At about the same time, the centrist jus- in the future, not “mere doctrinal justi½cation involving alleged subversives in particular; nor tices–Frankfurter and Harlan–led a majority of forcible overthrow, if engaged in with the in the business community, which considered of the Court to avoid any more serious con- intent to accomplish overthrow.” The latter the Court hostile in labor and antitrust cases. frontations with Congress. In fairly short order, form of advocacy, “even though uttered with State of½cials considered some of the Court’s much of the wind came out of the sails of the the hope that it may ultimately lead to violent decisions on alleged subversives to be invasions antisubversive movement, John was revolution, is too remote from concrete action of state power. In 1957 the American Bar Asso- elected president, and the Court again changed to be regarded as the kind of indoctrination ciation failed to pass a resolution supporting composition, producing a solid liberal majori- preparatory to action which was condemned the Court, and then its Committee on Commun- ty. Avoidance of constitutional issues went out in Dennis.” ist Strategy issued a report blasting the Court of fashion, in favor of constitutional invalida- Harlan admitted that “distinctions between ad- during a meeting in London attended by none tion of illiberal statutes and proceedings. other than Earl Warren (who soon thereafter vocacy or teaching of abstract doctrines, with The series of 1950s decisions using the rule of resigned from the aba). Several major news- evil intent, and that which is directed to stirring avoidance and other techniques to move pub- papers attacked the Court in vitriolic terms. people to action, are often subtle and dif½cult lic policy in the direction of a more tolerant to grasp.” Harry Kalven, the venerated legal Members of Congress engaged in an orgy of stance toward dissenters provides an excellent scholar, put it more colorfully: “at ½rst acquain- proposals countering the Court. In addition to case study for evaluating the Court’s perform- tance [Yates] seems a sort of Finnegans Wake of the inevitable calls for impeachment were bills ance on the margin of confrontation with Con- 3 impossibly nice distinctions.” Indeed, if in a that would remove major areas of the Court’s gress. The Court’s behavior might be defensible statutory interpretation case the Court’s “duty jurisdiction, bills designed to overturn partic- on descriptive grounds: that it accurately ac- is to give coherence to what Congress has done ular decisions, bills giving the Senate appellate commodated congressional and judicial pref- within the bounds imposed by a fair reading jurisdiction over the Court’s decisions, bills erences in a way less judicially activist than of legislation,” as Justice Frankfurter wrote in requiring a unanimous vote of the justices to strike down a state law, bills abolishing life ten- 4 Walter Murphy, Congress and the Court: A Case 3 Harry Kalven, Jr., A Worthy Tradition: Freedom ure for the justices, bills purporting to require Study in the American Political Process (Chicago: Uni- of Speech in America (New York: Harper & Row, that a justice must have prior judicial experi- versity of Chicago Press, 1962), 111–112. 1988), 211.

Bulletin of the American Academy Summer 2004 9 constitutional rulings would have been. Alter- tent to have the ½nal say even on questions natively, the decisions might be justi½ed on Especially in areas where of constitutional dimension in that domain. normative grounds. That does not mean, however, that the judi- Congress has wide-ranging ciary, based on its familiarity with concrete In the longer study that will be published, I circumstances illuminated in litigation, can- conclude that descriptive defenses of the rule power, a checking function not play a useful role in guiding policy toward of avoidance are, at best, indeterminate. Per- in the judiciary seems ap- what seems to be a more normatively plausi- forming interpretive surgery on a statute can ble direction. Based on the facts of this case, be seen as about as judicially activist as strik- propriate in our system of we therefore cut back this statute to its appar- ing it down as unconstitutional. This approach ent core purpose. If Congress objects, it can, of course, amend the statute to certify that still might map on congressional preferences shared powers. greater authority should be in the hands of if those were the only two alternatives–but immigration of½cials. If Congress does so, we they are not. Obviously, the third alternative is argument by invoking the rule of avoidance: cannot respond unless a case comes before to let the statute stand and mean what it seems because supervision of such aliens “may be a us at some future time. What we are doing is to say. lifetime problem,” “issues touching liberties providing worthwhile relief in this case, set- that the Constitution safeguards, even for an ting a more defensible status quo, and buy- Consider an obscure but interesting case from alien ‘person,’ would fairly be raised on the ing time for a potential evolution in national 1957, United States v. Witkovich, a classic avoid- Government’s view of the statute.” policy. ance decision by Justice Frankfurter. A deport- able alien had refused to answer a host of re- Witkovich cannot easily be defended on descrip- This cooperative venture for channeling public markable questions asked by the Justice Depart- tive grounds. Frankfurter performed radical policy is exceedingly controversial. In the view ment about whether, for example, he was ac- surgery on the statutory text, when presumably of many legal scholars, the judicial role should quainted with certain persons, had visited cer- Congress intended the statute to mean what it consist of identifying and implementing the tain addresses, or had spoken before or was a plainly said in the ½rst place. To be sure, his de- most appropriate meaning to the Constitution member of certain organizations. The ques- cision narrowed the statute down to its proba- without consideration of prudential factors. tions directly probed what materials he read ble core purpose; but had supporters of the stat- This is a quest for neutral principles grounded and with whom he associated, including those ute speci½cally considered whether that was in the legalistic methodology of objective tex- from whom he may have asked for help with the only purpose they had in mind, or whether tual and historical interpretation. But Frankfur- his legal problems. Among these questions, my the immigration authorities ought to have wide ter’s technique, as I have described it, would personal favorites are, “Do you subscribe to The discretion to ask questions beyond that pur- not be surprising to political scientists who Daily Worker?” “[H]ave you attended any meet- pose, it seems quite likely the legislators would study judicial behavior, who generally assume ing of any organization other than the singing have endorsed the wide-ranging meaning em- that judicial policy making rather than legal- club?” “Have you attended any meetings or bodied in the statutory text. Nor can Frankfurt- ism better explains what justices do. What es- lectures [at a certain auditorium]?” “Have you er’s de facto textual amendment of the statute pecially interests me about Frankfurter’s ap- attended any movies [at a particular theatre]?” be justi½ed on the ground that it avoids a judi- proach is the blend of legalistic and policy- and “Have you addressed any lodges of the Slo- cial invalidation of the law. Based on the prece- making models, with at least a formal acknowl- vene National Bene½t Society requesting their dents in place in the early 1950s, which acknowl- edgment that Congress can have the ½nal say if aid in your case...?” The problem for Frank- edged a “plenary power” in Congress over im- it really desires to. In retrospect, this technique furter was that the statute in question author- migration affairs, it seems unlikely that a ma- helped the Court, Congress, and the polity to ized the attorney general to require deportable jority of justices would have voted to strike get from Joe to Gene McCarthy–no small feat. aliens in Witkovich’s circumstances “to give down the statute. information under oath as to his nationality, circumstances, habits, associations, and activ- Nonetheless, in my judgment Frankfurter got ities, and such other information, whether or it right. It seems to me that the best–perhaps Gordon Silverstein not related to the foregoing, as the Attorney even the only plausible–defense for his deci- General may deem ½t and proper.” sion is normative. Especially in areas where Congress has wide-ranging power, a checking The Warren Court and Congress: Frankfurter began his Witkovich opinion by ac- function in the judiciary seems appropriate in Both Necessary–Neither Suf½cient knowledging that the language of the provision, our system of shared powers. In effect, Frank- “if read in isolation and literally, appears to furter said: In many ways, what we think of as the 1960s confer upon the Attorney General unbounded began ½fty years ago, when the U.S. Supreme authority to require whatever information he The statute you passed is probably normative- Court’s Brown v. Board of Education decision deems desirable.” “The Government itself ly unobjectionable in most circumstances. As struck down legally mandated racial segrega- for the case of this man, however, the statute shrinks from standing on the breadth of these tion in public schools. From that moment, many seems to allow inquiries that are offensive to social activists looked to the Court rather than words,” however, and “once the tyranny of lit- our basic liberties of freedom of thought, ex- eralness is rejected, all relevant considerations pression, and association. We doubt that Con- Congress or state legislatures to advance their for giving a rational content to the words be- gress anticipated that the executive authori- public policy goals. And a quick review of the come operative.” Frankfurter concluded that ties in charge of immigration affairs would Supreme Court over which Earl Warren pre- the statute as a whole and its legislative history engage in such abusive treatment. Because sided as chief justice from 1953 until his resig- both suggested that the provision only author- immigration affairs involve considerations nation in 1969 seems to con½rm their instinct. ized inquiries regarding the alien’s continued of foreign policy, national security, and so on, From civil rights to privacy, from protections availability for departure. He then clinched the the judiciary rarely believes that it is compe- for the rights of the accused to reforms of the

10 Bulletin of the American Academy Summer 2004 electoral process itself–it is the Warren Court consciously and otherwise–in a path-depend- ward in retrospective efforts to anticipate the that leaps to mind. ent way by legislators and lobbyists as well as frames that will appeal to the Supreme Court, by lawyers and judges. and to identify plausible paths for their objec- Recently, revisionists have tried to demonstrate tives. They craft legislation and lawsuits with that when it comes to social policy, the Court does not determine the outcome these experiences in mind. But they also try to may speak loudly but has little real impact.1 of a particular case and “legal rules do not lay anticipate, to shape their efforts prospectively: Only Congress and the president, they argue, down any which a judge moves,” limits within Where is the Court likely to go? How is the path can really change social policy. Supreme Court Karl Llewellyn once wrote. “Rather, they set likely to extend? This process works within the decrees may be cathartic, but little more than down which a judge proceeds guidelines from judicial system, between litigators and judges, symbolic. toward a decision.” They direct and even con- and it works as well across the legal/political strain decisions, indicating “the experimental divide, with judicial precedent influencing leg- basis and the approved direction for develop- islative choices, and legislative precedent influ- Who’s Right? Neither. And Both. ing norms, and thus the foundations of existing encing judicial strategy. law.”4 It is in this sense that we need to think Many of the most important changes in Amer- about the cross-institutional role of precedent Court decisions are part of an ongoing process, ican public policy, including those in the arena and about the ways in which the words akin to a tennis match rather than a horse race. of civil rights, were the product of the Warren together with apply to the relationship between the War- Like a tennis match, judicial decisions are part Court together with Congress. This was not a case ren Court and Congress, and between the Court of a back-and-forth process, a multi-iterated of collaboration, but rather a case of two inde- and Congress more generally. game where the players respond to each other’s pendent builders working on the same struc- moves over the course of a long volley. Where ture. Each built on the product of the other, and one hits the ball influences the options avail- each was constrained by what the other had Many of the most important able to the player on the other side of the net; done and was likely to do in the future. Their the return shot, in turn, influences and con- medium of communication and constraint was changes, including those in strains the next set of shots. constitutional and statutory interpretation and precedent–both legislative and judicial. the arena of civil rights, were The Warren Court’s experiences with civil rights illustrates both the way in which judicial If we want to understand how Congress and the the product of the Warren precedent can serve as a legislative tool (and Court work together with each other, and if we constraint) and the way in which legislative want to understand how and why the Warren Court together with Congress. precedent can serve as a judicial tool (and con- Court made a difference, we need to understand Litigators and legislators take cues from court straint). Its experiences with civil rights also precedent, but not in the narrow legal sense that opinions, framing their arguments in ways they help us understand the need to view the Court usually comes to mind. Too often we conflate anticipate will most likely win support from and Congress not as antagonists, but as code- precedent (previous examples used to support the Supreme Court. These frames set the Court pendents. But the Warren era also offers a cau- current choices) with stare decisis, the tradition- on a path, and future litigation and legislation tionary tale for those inclined to see this inter- al legal rule for the application of precedent, a tends to reinforce and extend that path. New active process as a model for the making of rule that previous decisions should govern or cases that can be linked to existing paths are far American public policy. Far from a model for determine current similar cases. Although Su- more likely to succeed than are cases that re- how separate institutions can work together to preme Court justices may not feel bound by stare quire a new path or even the abandonment of advance public policies, this was in many ways decisis, the way judges, legislators, and the pub- an existing path. This does not mean that out- a rather novel moment of confluence, with just lic think about important policy questions is comes are preordained, but there is evidence the right people in just the right places at just powerfully shaped by precedent. In this broad- to suggest that once a case has started down a the right moment in history. But that’s getting er sense, precedent is a source of power, influ- particular path, some results are far more like- a bit ahead of the story. ence, and constraint in politics as well as in ly than others–and some become increasingly law, and particularly in the interplay between hard to imagine.5 As Justice Cardozo put it, the the two. “power of precedent, when analyzed, is the Legislative/Judicial Serve-and- Decisions are powerfully influenced by “the for- power of the beaten track.”6 Volley: The Strange Link between mulation of the problem,” by the way in which Hamburgers and Lobbyists, legislators, and concerned citizens we understand the problem.2 Students of po- alike pay attention to the courts. They look back- litical psychology have long understood this When legislators and members of the Johnson observation,3 which has long been applied– administration decided to push for civil rights 4 Karl Llewellyn, The Case Law System in America legislation in 1964, they faced a dilemma. Even (Chicago: University of Chicago Press, 1989), 80, 1 Gerald Rosenberg, The Hollow Hope: Can Courts if they could survive a certain ½libuster in the emphasis in the original. Bring About Social Change? (Chicago: University of Senate, they had to build a law that would also Chicago Press, 1991). survive Supreme Court review. The problem 5 See Paul Pierson, “Increasing Returns, Path De- pendence, and the Study of Politics,” American Po- was that most instances of racial discrimina- 2 Amos Tversky and Daniel Kahneman, “The litical Science Review 94 (2) (2000): 251. tion, particularly those dealing with places of Framing of Decisions and the Psychology of public accommodation, were areas tradition- Choice,” Science 211 (January 30, 1981): 453. 6 Benjamin Cardozo, The Growth of the Law (New ally assumed to lie constitutionally within the Haven: Yale University Press, 1924), 62, cited in 3 Erving Goffman, Frame Analysis: An Essay on the exclusive control of state governments, beyond Barry Cushman, Rethinking the Court: The Organization of Experience (New York: Harpers, the reach of the national government. To elim- Structure of a Constitutional Revolution (New York: 1974). Oxford University Press, 1988), 216. Bulletin of the American Academy Summer 2004 11 inate segregation, Congress had to ½nd a con- Membership in the new Lake Nixon Club could stitutional foundation for this assertion of pow- Litigators and legislators take be had on a seasonal basis upon payment of a er. But looking back retrospectively at the Su- cues from court opinions, 25-cent “membership” fee. This was a pretty preme Court’s doctrine, rulings, and precedent, obvious dodge, as the lower courts recognized, it became obvious that the most logical consti- framing their arguments in but was this small, privately owned recreation tutional foundations (the Fourteenth Amend- center a place of public accommodation? Was ment’s equal protection and privileges and im- ways they anticipate will it somehow involved in the stream of interstate munities clauses) were not promising paths to commerce that would bring congressional pursue. This was because the Supreme Court most likely win support control? had narrowly circumscribed these clauses al- Writing for the Court, Justice Brennan had most one hundred years earlier in two Recon- from the Supreme Court. no trouble extending the commerce path, sug- struction era cases,7 and they had steadily at- have rested the decisions of the Court on the gesting a number of ways in which the club rophied in the years and decades since those Fourteenth Amendment, but it seemed clear was linked to interstate commerce. But Justice decisions. that Congress had relied primarily on the Black’s discomfort level had been reached. To Looking ahead, legislators had two choices: Ask .”9 apply these rules to a recreation center in the the Supreme Court to undo almost one hundred Arkansas hills that was “miles away from any Though this certainly allowed for a signi½cant years of case law, precedent, and rulings, with interstate highway,” Black wrote, “would be expansion of civil rights, it was an expansion a distinct chance that the justices would not stretching the Commerce Clause so as to give of a particular sort. The Court was signaling to cooperate, thereby setting civil rights back yet the Federal Government complete control over members of Congress and the administration again; or ½nd another source of constitutional every little remote country place of recreation that the most ef½cient and reliable path for the power, another path that the Court might be in every nook and cranny of every precinct and expansion of civil rights was a path that built on more willing to endorse. Recognizing how hard county in every one of the 50 States.” This, he the commerce clause. And that certainly offered it would be to defeat a Senate ½libuster and pass concluded, “goes too far for me.”12 In a foot- a lot of potential. But what about civil rights that this legislation in the ½rst place, the Johnson note, he added that this was precisely what he might not be able to be linked to commerce? administration along with members of Con- had been worried about in the 1964 cases, where Justice William O. Douglas raised this concern gress were determined to rest this legislation on he had warned that “every remote, possible, in his concurrence in the cases testing the 1964 the least assailable constitutional foundation speculative effect on commerce should not be Civil Rights Act. Future cases, he said, would possible. The answer was to turn to America’s accepted as an adequate constitutional ground now turn not on questions of fundamental hu- superhighway of national power–the com- to uproot and throw into the discard all our man rights, but rather “over whether a partic- merce clause of the U.S. Constitution. traditional distinctions between what is pure- ular restaurant or inn is within the commerce ly local, and therefore controlled by state laws, The then solicitor general, , did de½nitions of the Act or whether a particular and what affects the national interest and is not believe there was a majority on the Supreme customer is an interstate traveler.”10 Justice therefore subject to control by federal laws.”13 Court that would support a Fourteenth Amend- Goldberg agreed with Douglas. He noted in a ment argument for the desegregation of public draft concurrence that the primary purpose of Was this returning to his Alabama accommodations. Cox, Richard Cortner has the 1964 law ought to be “the vindication of hu- roots, preparing to say of civil rights, “Thus noted, felt that “if we went for all or nothing,” man dignity and not mere economics.” During far, and no further”? No. This was Hugo Black the result “would have been nothing.” Thus, the formal reading of the Court’s opinion in saying that the Court and Congress had built in his brief for the administration, Cox wrote, these cases, a frustrated Goldberg passed a scrib- this important enterprise on the wrong foun- “We stake our case on the commerce clause.”8 bled note to Douglas saying, “It sounds like dation, that they had selected the wrong path. hamburgers are more important than human Expanding the commerce clause may have It was a successful choice. Justice Harlan made rights.”11 been an ef½cient path to some desegregation, it clear that the reliance on the commerce clause but the implications of this expansion could was the key to his vote: “It is perfectly clear,” The commerce path was a wide one indeed, but not and would not be limited to integration. he noted during oral argument, “that the gov- not unlimited. The worries expressed by Gold- Meaning that if Black and the Court did not ernment is arguing only that this act . . . is a con- berg and Douglas began to materialize as ear- draw the line somewhere, the cost for federal- stitutional exercise of the Commerce Clause ly as 1969, when Hugo Black sent an ominous ism would be signi½cant as legislators and liti- power, and that’s all we’ve got; this other [Four- warning that commerce could be stretched just gators interested in expanding national power teenth Amendment] debate may be interesting, so far and no further. in other realms hitched their wagons to the ex- but hasn’t anything to do with this lawsuit.” After the Court upheld the 1964 Civil Rights Act, panded commerce path. Black argued that he Justice Black said he would have preferred “to Euell Paul and his wife decided to turn their would be willing to enforce national power segregated amusement park on the outskirts over segregation, but he would only do so if 7 The Slaughterhouse Cases 16 Wall. (83 U.S.) 36 of Little Rock, Arkansas, into a “private club.” the law (and the Court’s interpretation of the (1873) and the 109 U.S. 3 (1883), law) were built on what he thought was the which gutted the Civil Rights Act of 1875–an act that would have banned virtually all of the racial 9 Ibid., 102, 145. discrimination in question in the 1964 Act. 12 Daniel v. Paul, 395 U.S. 298, 315 (1969), Justice 10 Heart of Atlanta Motel, Inc. v. United States 379 Black dissenting. 8 Richard Cortner, Civil Rights and Public Accom- U.S. 241, 280 (1964), Justice Douglas dissenting. modations: The Heart of Atlanta Motel and McClung 13 Heart of Atlanta Motel, Inc. v. United States 379 Cases (Lawrence, Kan.: University Press of Kansas, 11 Cortner, Civil Rights and Public Accommodations, U.S. 241, 275 (1964). 2001), 6. 108, 169, 180.

12 Bulletin of the American Academy Summer 2004 more appropriate foundation of the Fourteenth This takes us to a second perspective on the interpretation, some of the justices might be Amendment–the alternative that Congress way the Warren Court together with Congress open to new laws that would attack the prob- and the Court had explicitly sidestepped. used precedent to expand civil rights in the area lem through the Fourteenth Amendment.17 of the sale and rental of private homes. But in While Justices Goldberg and Douglas worried Justice Brennan seemed to make the invita- this case, it was the Court that used legislative about the power of precedent to shape, con- tion rather explicit in a 1966 case, . precedent to put meat back on the bones of civ- U.S. v. Guest strain, and limit the extension and expansion “Viewed in its proper perspective,” Brennan il rights laws that had been signi½cantly com- of civil rights, Black was concerned about the insisted, Section 5 of the Fourteenth Amend- promised and watered down to survive Senate power of the unintended consequences of opt- ment “appears as a positive grant of legislative ½libuster. ing for the most ef½cient route to a mutually power, authorizing Congress to exercise its dis- desirable result. Congress, Black agreed, had Among the civil rights laws passed during Re- cretion in fashioning remedies to achieve civil the power to end segregation, but to do so un- construction, one (later codi½ed as 42 U.S.C. and political equality for all citizens.” The rem- der the commerce clause was unacceptable 1982) sought to ban discrimination in the sale edy, Brennan wrote, “is for Congress to write a because of the consequences of further paving and leasing of residential property. But this pro- law” that would properly build on the correct the commerce path to national power. These vision had been gathering dust ever since the foundation. worries would eventually flower twenty-½ve Supreme Court seemed to have gutted it along The invitation was sent, and the guests were ar- years later in rulings that the with other laws designed to end racial discrim- riving. The Court was standing at the altar, ap- commerce path could only go so far, and no ination in wide areas of public and private life parently ready to work together with Congress. further.14 But despite the misgivings voiced in the Civil Rights Cases of 1883.15 Little was But a wedding still requires two participants. by Douglas, Goldberg, and Black, the Warren done about racial discrimination in housing Would Congress walk down the aisle? Court together with Congress did follow the for the next eighty years, until President Ken- commerce path to a signi½cant transformation nedy signed an executive order in 1962 barring The opportunity to do so came quickly. About of American law and a major blow against ra- racial discrimination in housing built with fed- six weeks after the Court handed down U.S. v. cial discrimination. eral funds. But important as it may have been, Guest, President Johnson proposed the Civil this provision covered less than 1 percent of ex- Rights Act of 1966, which, among other things, isting housing, and only 15 percent of new con- The Case of the Judicial Exploitation would have signi½cantly expanded fair hous- struction.16 Even the , ing guarantees. of Legislative Precedent: Putting passed two years later, did little more than Meat Back on the Bones of Laws speak loudly and swing a small stick. In part this But we don’t talk much about the great Civil Against Private Discrimination was because most housing was in private hands, Rights Act of 1966. That’s because it never came and the understanding was that the Court had to a vote. And that’s because of Senate Rule One of the reasons Congress was so eager to foreclosed any possibility of national power xxii–the Senate ½libuster. ½nd a constitutionally foolproof foundation for reaching purely private transactions. Any real Two years later, after a long, hot summer of ur- the Civil Rights Act of 1964 was Senate Rule change, therefore, would seem to require both ban riots that devastated Detroit and Newark, xxii–the Senate’s ½libuster rule. Even if civil a very aggressive legislative effort (to overcome there was broad public demand for legislative rights advocates could break a ½libuster once, a certain ½libuster in the Senate) and a signi½- action. A new civil rights law moved quickly they certainly did not want to have to do it again, cant judicial reversal. through the House and reached the Senate floor which is what would have been necessary if the in January 1968, where it, too, promptly ran Court struck down their efforts. This time, the Court moved ½rst. Concurrences in a 1964 sit-in case (Bell v. Maryland) along with into a ½libuster. Until 1975, ending a Senate ½libuster required the Court’s rulings in cases testing the Voting But this time, with the Kerner Commission’s the support of two-thirds of those present and Rights Act in 1965 suggested that though the famous report (“We are two nations, separate voting. This meant, of course, that even though Warren Court would not single-handedly elim- and unequal...”) fresh off the press, gop Mi- one side might have had the support of sixty- inate housing discrimination through judicial nority Leader signaled that six out of one hundred senators, the other he was willing to compromise, and defeat the thirty-four could have blocked action, mean- Southern Democratic ½libuster. But he would ing that a minority held veto power, and there- 15 The Civil Rights Cases 109 U.S. 3 (1883) consoli- do so only if the housing provisions were sig- fore disproportionate leverage in negotiating dated ½ve cases coming from Kansas (United States ni½cantly watered down and another seven the ½nal contours of any successful legislation. v. Stanley), California (United States v. Ryan), Mis- souri (United States v. Nichols), New York (United million residences were excluded, in addition And this meant that to overcome a ½libuster, States v. Singleton), and Tennessee (Robinson v. Mem- to the exemptions already built into the origi- any successful civil rights law would require phis & Charleston Railroad Co.). The question of the nal bill. signi½cant compromise that would water down reach of congressional power to private discrimi- what a majority in Congress (and in the nation nation was revisited in Hurd v. Hodge 334 U.S. 24 As the House Rules Committee opened hear- at large) wanted and was willing to support. (1948). ings on this new, compromised bill, across the street, the U.S. Supreme Court was hearing oral 16 Executive Order 11063, November 20, 1962: argument in a housing discrimination case 14 The stretching of the commerce clause would Equal Opportunity in Housing. Available online eventually snap, in United States v. Lopez, 514 U.S. through the Department of Housing and Urban called Jones v. Alfred H. Mayer Co. 549 (1995) and again in United States v. Morrison, Development at www.hud.gov/of½ces/fheo/ 529 U.S. 598 (2002), where the Court struck down FHLaws/EXO11063.cfm. See George Metcalf, Fair efforts to extend the reach of the commerce clause Housing Comes of Age (New York: Greenwood 17 South Carolina v. Katzenbach and Katzenbach v. to cover laws banning handguns near schools and Press, 1988), 38. Morgan. violence against women.

Bulletin of the American Academy Summer 2004 13 Joseph Jones had sued the Mayer Company, a One of those congressmen was Illinois Repub- A Separation of Powers Success private developer that refused to sell Mr. Jones lican John Anderson, a member of the Rules Story? A Model for Relations a house because of his race. The problem was– Committee. Just days after the assassination, between Court and Congress? just what law had the Mayer Company violated? Anderson bucked his own constituents and his state’s delegation, switching his vote in the The 1968 bill would address this, but it was still These cases seem to paint a rather appealing Rules Committee and sending the unamend- in limbo at the Rules Committee, and its future portrait: two independent branches working ed Civil Rights Act of 1968 to the House floor, was far from certain. This left lawyers for Mr. to advance American public policy in a way nei- where it was quickly approved and, within Jones to search for an alternative foundation ther alone could, or perhaps should. The prob- twenty-four hours, signed into law by Presi- for their argument. Looking back–way back– lem with this as a model of how the government dent Johnson. they found a nearly forgotten provision of the could (and perhaps should) develop important Civil Rights Act of 1866 that stated that “[a]ll As important as this legislation was, it was a policy initiatives is that it was only possible be- citizens of the United States shall have the same shadow of its original self, and far less than a cause of a most extraordinary confluence of right, in every State and Territory, as is enjoyed majority in either House would have willingly circumstances and individuals. This is, in fact, by white citizens thereof to inherit, purchase, endorsed, particularly in the wake of King’s anything but a model of the way we might ex- lease, sell, hold, and convey real and personal death. pect the system to work. property.”18 It was at this point that the Warren Court came This moment of Congress together with the Court required an active and liberal court with back into the picture. The Jones case was still For better or worse, the pending, and the Court took it as an opportu- a politically skilled chief justice; an active and nity to actually use legislative precedent (the liberal president with extraordinary political American constitutional old and ignored provision of the 1866 law) to skill and a unique ability to manage the Con- put back some of the meat Congress had com- gress, and particularly the Senate; and a con- system is designed to make promised off the bones of the 1964 and 1968 gressional supermajority willing to expend sig- legislation–and even to add some flesh the ni½cant political capital. And that required a change hard. legislators hadn’t dared to attempt in their set of truly extraordinary (and one can only original proposals. hope unique) set of events: But would the Court be willing to enforce this • For those eager to end discrimination in hous- First, the assassination of John F. Kennedy in long-ignored statute? Would the justices use ing, this certainly seemed like a promising way 1963 and the televised brutality of Bull Connor’s the statute to enforce what Congress seemed to go. But because the Court was merely enfor- Birmingham police dogs (which paved the way reluctant to pass in a bill under current consid- cing a statue rather than a constitutional man- to end the ½libuster and pass the Civil Rights eration? date, it also meant there was a risk: If Congress Act of 1964). Before the Court could arrive at a decision, race really didn’t want to go this far or this fast, what • Then the extreme violence unleashed against relations in the United States were thrown into would stop civil rights opponents from repeal- nonviolent protesters in the South, culminat- a very different light. Just two days after oral ing the earlier statute by a simple majority vote? ing in the police attack at the Edmund Pettis argument ended in Jones V. Alfred H. Mayer Co., What would happen if Congress really didn’t Bridge during the March on Selma. This led to and just hours after the Rules Committee re- want that meat–which had been painfully the vote to end the ½libuster and pass the Vot- cessed for the week without taking a ½nal vote compromised off the bone–put back there by ing Rights Act of 1965. on the new law, everything changed when the the Court? Rev. Dr. Martin Luther King stepped out onto • Then the 1965 Watts riots in , fol- This was, of course, technically possible. But the balcony of the segregated Lorraine Motel in lowed by the 1966 urban riots in Chicago and this is where the Court in effect turned the pig’s Memphis, Tennessee, and was shot and killed Cicero, Illinois, and the 1967 riots that destroyed ear of Senate Rule xxii into a silk purse of by an assassin’s bullet. Newark and Detroit. And ½nally, and tragical- more extensive than even a ma- ly, the assassination of Martin Luther King in The King assassination set off a tidal wave of jority in Congress could have achieved on its 1968 and the riots that followed that event. All rioting, nowhere more intensely than in Wash- own. First, because civil rights opponents would this led to the Civil Rights Act of 1968, which ington, D.C., where, according to The New York now need to actually pass legislation rather than included fair housing provisions and the Court’s Times, whole city blocks went up in flames with merely block it, they would need to assemble expansive reading of the 1866 civil rights pro- looting and ½res reaching within two blocks a majority, which was quite unlikely under the visions in Jones v. Alfred H. Mayer Co. of the White House. The Times also reported circumstances. But even if they could have man- that a detachment of troops from among eleven aged to do that, any law would have faced a cer- This was an era where circumstances made it thousand soldiers of the 82nd Airborne, the 3rd tain ½libuster–this time from civil rights advo- possible, even necessary, for extraordinary in- Infantry Regiment, and the 6th Armored Cav- cates. The Court had performed the neat trick dividuals to do extraordinary things, despite alry joined by the National Guard “ringed the of putting the shoe on the other legislative foot, the institutional and constitutional impedi- Capitol and set up a machine-gun post on the without having to expand (or contract) any ments designed to frustrate this sort of change. Capitol’s west steps, overlooking the Mall,” clause of the U.S. Constitution. None of these institutions–not the president, forcing members of Congress to skirt sand- not Congress, not the Warren Court–could Here, the Warren Court together with Congress bagged gun installations to get to their com- have done this alone. And even together it is had done far more than either, alone, could have mittee meetings. almost impossible to imagine they would have done. It certainly was not a collaboration. But done it absent these extraordinary and tragic both were necessary and neither was suf½cient. circumstances. 18 42 U.S.C. 1982.

14 Bulletin of the American Academy Summer 2004 For better or worse, the American constitution- That the Court made use of subconstitutional al system is designed to make change hard. Not The lesson here is simple. The avoidance would not–as Professor Frickey impossible, but awfully hard. No one branch of Court takes what Congress shows–defuse congressional opposition to the American government is capable of making Court decision making. The Court’s moderates, signi½cant and lasting changes on its own–and will give it. This is the Warren Frankfurter and Harlan, may well have under- that is as it was designed to be. The branches of stood this phenomenon. For this very reason, the national government can and do work to- Court’s legacy and, not sur- they pushed for the use of subconstitutional gether with the others, not only in obvious col- avoidance and, once Congress signaled its dis- laborative ways, but in iterated ways, each build- prisingly, Rehnquist Court approval of the Court, they beat a hasty retreat ing on the work of the other, each constrained through the avoidance escape hatch. Follow- by the work the other has done and is likely to decision making follows a ing the Red Monday decisions, Harlan and do. The Warren Court together with Congress Frankfurter shifted their votes to pro-Congress and the president proved that the American similar pattern. positions in order to stabilize Court-Congress system is capable of action–but also showed relations. The facts relied upon by Silverstein and Frickey, how dif½cult and unusual it is for the system however, support an alternative theory of Court- Likewise, the Warren Court’s 1962 jettisoning to actually generate signi½cant change. The Congress relations, namely: The Supreme Court of avoidance in favor of constitutional invalida- Warren Court era provides an excellent set of is not especially interested in having a true con- tions of anti-communist legislation speaks to case studies that might help us decide if this is stitutional dialogue with Congress. Rather, the the Court’s uninterest in a true dialogue with an inherent flaw in the American constitution- Court looks to Congress to see what it can and Congress. At that time, an increasingly liberal al system, or one of the system’s most impor- cannot do. Based on that assessment, the Court Congress was unlikely to resist such judicial tant safeguards against the abuse of power. seeks to advance its own agenda in ways that innovations. Moreover, with the appointment will not prompt a legislative backlash. This was and con½rmation of , elected Neal Devins true of the Warren Court and it is true today. government helped move the Court to the left. In other words, the Rehnquist Court’s reinvig- oration of federalism-based limits on Congress What then of mid- to late-1960s rulings uphold- hat does it mean for the Supreme Court to W is very much in keeping with Warren Court ing and expanding the scope of federal civil “work with Congress”? Must a Court that works traditions. That the Rehnquist Court is using rights legislation? At this time, of course, the with Congress, for example, uphold federal leg- constitutional law to invalidate federal legisla- Court and Congress both supported national- islation? Alternatively, does it mean that when tion is beside the point. What matters is that ist solutions to eradicate race discrimination. reviewing legislation it considers constitution- the Rehnquist Court, like the Warren Court, For example, by upholding the public accom- ally problematic, the Court should make use of looks to signals from Congress to sort out ways modations provisions of the just enacted 1964 avoidance techniques that limit congressional in which it can advance its agenda. Civil Rights Act, the justices validated both prerogatives without invalidating federal law? their own and Congress’s preferences. Finally, is it possible for the Supreme Court to Consider, for example, the Warren Court’s use strike down scores of (recently enacted) feder- of avoidance techniques. Rather than seeking A more interesting and revealing case is Jones al laws but nonetheless work with Congress? to forge a constructive dialogue with Congress, v. Alfred H. Mayer Co. As detailed by Professor the Court relied on subconstitutional avoid- Silverstein, Jones extended housing discrimi- In papers examining Warren Court–Congress ance as a possible escape hatch if Congress dis- nation protections beyond those just enacted relations, Gordon Silverstein and Philip Frickey agreed with the Court. In particular, the Court by Congress. Speci½cally, rather than embrace suggest that a Court that “works with Congress” would not be saddled with a politically unwork- a legislative compromise that limited the reach ought not to invalidate federal laws. Silverstein, able constitutional ruling. Consequently, it of fair housing requirements, the Court trans- for example, looks to mid-1960s decisions up- would not need to overrule itself in order to formed a Reconstruction era civil rights statute holding and expanding lawmakers’ efforts to uphold analogous legislation. into a sweeping prohibition against housing dis- prohibit race discrimination in housing and crimination. Knowing that a majority of law- public accommodations. Contrasting these There is good reason to think that this is pre- makers supported the Court, the justices recog- rulings (where “the Court together with Con- cisely what the Warren Court was doing in its nized that they would not be slapped down for gress made a difference in civil liberties”) to review of anti-communist legislation. At that their pursuit of a more ambitious housing law Rehnquist Court rulings invalidating gun con- time, Southerners in Congress were enraged than the one Congress was able to enact. trol and domestic violence legislation, Silver- by the Court’s decision in Brown. This outrage stein claims that the “Warren Court era was took many forms, including polls showing that The lesson here is simple. The Court takes what extraordinary, and quite possibly unique.” For 86 percent of Southern lawmakers thought that Congress will give it. This is the Warren Court’s his part, Frickey examines late-1950s Warren Congress should not defer to Court interpreta- legacy and, not surprisingly, Rehnquist Court Court efforts to limit anti-communist legisla- tions of the Constitution. More generally, 40 decision making follows a similar pattern. tive initiatives. Applauding the Court’s use of percent of lawmakers thought that the Court In thinking about the Rehnquist Court’s revival “subconstitutional” avoidance, Frickey claims should not second-guess congressional inter- of federalism, consider the following: A 2000 that “the Court used techniques that might de- pretations of the Constitution. poll revealed that only 13.8 percent of lawmak- fuse political opposition” and, in so doing, the Put another way, when the Warren Court ruled ers think that the Court should defer to con- justices “avoid[ed] the sharpest confrontations gressional interpretations of the Constitution. with Congress and with each other.” against Congress in several “Red Monday” cases, it had good reason to fear that Congress would In 1964 76 percent of those polled thought the respond by enacting Court-stripping legislation. federal government could be trusted “just about

Bulletin of the American Academy Summer 2004 15 always” or “most of the time”; by 2001, only This interpretation came in handy when the 27 percent of those polled thought the govern- The question that for many Court was faced with term-limit cases several ment trustworthy. Indeed, the 1994 Republican years has nagged at me is decades later,4 but this did not change the fact takeover of Congress was tied to voter dissatis- that Adam Powell’s case was clearly moot. Pow- faction with Washington. Running on the so- whether the Court could have ell was already sitting in Congress (though not called Contract with America, House Republi- the same Congress for which relief was asked) cans pledged a smaller federal government and found grounds for requiring when the decision was announced. The Court a larger role for the states. could do nothing about that. I conclude that in the state of Tennessee to this instance the Court, under Earl Warren’s Not surprisingly, there has been no backlash to leadership, went well out of its way to admon- Rehnquist Court decisions striking down fed- follow its own constitution ish Congress on an occasion when the Court’s eral laws. If anything, Congress seems to sup- decision could have no practical effect. No prac- port the Court. Congress has shown relatively without judicial supervision tical effect was equally available to the Court little interest in rewriting statutes that have been by acknowledging the obvious mootness of struck down, and when Congress has revisited as stringent as “one person, this case and keeping its powder dry for a fu- its handiwork, lawmakers have paid close at- ture that included the issue of term limits. tention to the Supreme Court’s rulings, limit- one vote” has proved to be. ing their efforts to revisions the Court is likely Baker v. Carr (1962) is the more complicated of 3 to approve. v. McCormack, in which the Court went on re- the two cases. It deserves a broad and careful cord specifying (and presumably restricting) discussion, which I will not provide here. In- I do not mean to suggest that today’s Congress the quali½cations for membership in Congress. stead, I will limit my comments to a few basic wants the Court to overturn its enactments. In- Both cases throw a different light on Court- points, relying on the general knowledge about stead, just like the Warren Court before it, the Congress relations than those cases described this case and its successors that has diffused in- Rehnquist Court is pursuing favored doctrinal by my learned colleagues that lead to a picture to the community. Baker v. Carr was not a direct innovations in ways that will not prompt a leg- of Court-Congress cooperation and of Court attack on Congress, because it dealt with the islative backlash. In some measure, of course, deference to Congress. of the Tennessee legislature– the Court’s assessment of what it can and can- but it opened the Pandora’s box of equal pro- not do makes clear that Congress plays a piv- Curiously, neither case needed to be decided in tection as the grounds for judicial intervention. otal role in shaping Court decision making. At as intrusive a manner as it was. By that I mean This soon led to deep Court involvement in the same time, neither the Rehnquist nor the simply that in both cases roughly the same districting issues all over the political system Warren Court has seemed especially interested short-run substantive result was available with- and to more and more detailed speci½cation of in engaging Congress in a true dialogue about out the Court’s moving so far into the political the practical meaning of equality. the Constitution’s meaning. thicket. This case raises the interesting procedural is- Powell v. McCormack, Earl Warren’s last opinion, Nelson W. Polsby is the simpler of the two cases. Adam Clayton sue of how much detail the Court needs to pro- Powell, a representative from New York duly vide in laying out criteria that other political elected in 1966 to the 90th Congress, was pre- actors must meet in order to satisfy the Consti- For the purposes of this brief comment, I am vented from taking his seat by a majority vote tution. “One person, one vote,” the criterion proceeding on the assumption that no account of that Congress on grounds that were evident- that soon (in Wesberry v. Sanders and Reynolds v. of judicial-legislative relations during the War- ly compelling to his colleagues, though not par- Sims) forti½ed the Court as it charged into the ren era can be complete without consideration ticularly relevant here. He sued. By the time the political thicket, has in practice turned out to of the two major cases in which these relations case reached the Supreme Court, Powell had be an unwieldy measure of equal protection, appeared most explicitly on the agenda. I refer been elected to the 91st Congress and had been an outcome that justices may or may not fully 1 to Baker v. Carr, which opened the door to an seated without incident. Earl Warren’s decision have anticipated when they fastened upon this ever-lengthening line of cases where the Court for the Court held that despite the unavailabil- measure as the sovereign test of political equal- has found it necessary to intervene directly in ity of an appropriate remedy (since the 90th ity. It is certainly true that in Baker v. Carr the the representation process, ½rst at the state lev- Congress was no more), the case was not moot facts supported some sort of judicial response. 2 el and later more comprehensively; and Powell since there was still the outstanding issue of The Tennessee legislature was grossly malap- the reimbursement of Powell’s back pay. Clear- portioned, and the state of Tennessee had not 1 Baker v. Carr, 369 U.S. 186 (1962). ly the Court did not consider this an issue of followed its own constitution, which explicitly great constitutional moment, since the justices required periodic reapportionments. 2 Gray v. Sanders, 372 U.S. 368 (1963), prohibiting remanded it to the court below for ½nal deter- The question that for many years has nagged the unequal weighting of votes in statewide elec- mination. Instead, the Court availed itself of tions; Wesberry v. Sanders, 376 U.S. 1 (1964), man- at me is whether the Court could have found dating the equal population of congressional dis- the opportunity to announce that grounds for grounds for requiring the state of Tennessee tricts within states; Reynolds v. Sims, 377 U.S. 533 exclusion from Congress were limited to those to follow its own constitution without judicial (1964), requiring that legislative districts at all lev- speci½ed in the Constitution: age, citizenship, supervision as stringent as “one person, one els of government be drawn on the basis of equal and residency. vote” has proved to be. One possibility, which population; Karcher v. Daggett, 462 U.S. 725 (1983), introducing a standard for population deviation in congressional districts which is admittedly more 3 Powell v. McCormack, 395 U.S. 486 (1969).4 U.S. 4 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 stringent than the margin of error of federal cen- Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); (1995); Cook v. Gralike, 531 U.S. 510 (2001). sus data. Cook v. Gralike, 531 U.S. 510 (2001).

16 Bulletin of the American Academy Summer 2004 occupies an exceedingly small niche in the lit- tiguity, compactness, accommodation of natu- How are we to reconcile these two cases with erature,5 would have been for the Court to in- ral communities, incumbency protection, and the account my colleagues have offered of Fred voke Article IV, Section 4 of the U.S. Constitu- so on. Baker v. Carr did not itself outlaw the con- Astaire–Ginger Rogers relations between the tion requiring the states to provide their inhab- struction of bicameral legislatures along the judiciary and the legislative branch in Earl itants with a “republican form of government.” lines of the Connecticut Compromise, but it Warren’s time? This was a course of action presumably blocked did set the Court on a path that eventually led by the Court’s decision in Colegrove v. Green to this outcome. I take the point in Justice (1946),6 and explicitly rejected in favor of equal Brennan’s Baker opinion that “the Guaranty © 2004 by Harry N. Scheiber, Philip P. Frickey, protection in Baker v. Carr. It would have left Clause is not a repository of judicially manage- Gordon Silverstein, Neal Devins, and Nelson the means of compliance suf½ciently open to able standards which a court could utilize in- W. Polsby, respectively. give a little wiggle room for political decisions dependently in order to identify a state’s lawful using the traditional districting criteria of con- government,”7 but in light of subsequent de- velopments, I think this might have been less 5 See Jerold Israel, “On Charting a Course Through burdensome a problem than judicial manage- the Mathematical Quagmire: The Future of Baker ment under equal protection has proved to be. v. Carr,” 61 (1962): 135. 7 Baker v. Carr, 369 U.S. 186, at 223. 6 Colegrove v. Green, 328 U.S. 549 (1946).

Nelson W. Polsby (UC Berkeley) and Lawrence Neal Devins (William & Mary School of Law) Friedman (Stanford University) Gordon Silverstein (UC Berkeley)

Jesse Choper (UC Berkeley), Scott Bice (University of ), The Philip P. Frickey and Harry N. Scheiber (both, UC Honorable James Browning (U.S. Court of Appeals, Ninth Circuit), and Ira Michael Berkeley) Heyman (UC Berkeley) Bulletin of the American Academy Summer 2004 17