Search

When you look at what the United States Supreme Court has done to hamper law enforcement and realize the difficulties the police now have in getting convictions in the first place, I wonder if we truly have representative government anymore.1 The main emphasis is on demagogic appeal; crime is the communism issue of 1968. This is the extent to which apparently there is a new Nixon.2

The Civil Rights Cases1 do not quite rival Plessy v. Ferguson2 for notoriety as the decision that most clearly confirmed the failure of Reconstruction and the rise of Jim Crow. Yet the Civil Rights Cases did far more than Plessy to limit federal power to address the continuing consequences of slavery. They declared unconstitutional the Civil Rights Act of 1875 insofar as it prohibited discrimination in public accommodations operated by private parties. Congress passed that act under its powers to enforce the Thirteenth and Fourteenth Amendments, but the Court held the act unconstitutional on the ground that private discrimination was neither a badge or incident of slavery under the Thirteenth Amendment nor a manifestation of state action under the Fourteenth. Although the Court's holding under the Thirteenth Amendment was effectively overruled by the Warren Court,3 its holding under the Fourteenth Amendment continues to be influential, supporting a decision of the Rehnquist Court striking down the Violence Against Women Act.4

Using the names of chief justices to demarcate periods in the history of the United States Supreme Court is as common as it is misleading. The label "Warren Court" seems etched in stone, for example, even though the Court went through two, if not three, quite distinct phases between 1953 and 1969 when the eponymous Earl Warren was chief. The last phase, moreover, arguably continued for almost a decade after Warren left the bench, and might at least after the early 1960s have more accurately been termed the "Brennan Court." Applying the chief justice's name to the recently terminated "Rehnquist Court" is particularly inapt, Professor Nancy Maveety argues in her new book, Queen's Court, a title that readily captures her thesis. Seeking "to assign a definitive meaning to the 'Rehnquist Court'" and "identify its historical importance," Maveety concludes that the Court under Chief Justice William Rehnquist "should be remembered legitimately as Justice O'Connor's." Both its longterm significance and the "real difficulties jurisprudential and systemic" that it created flowed from the "judicial O'Connorism" that characterized its work (p. 4). A specialist in the Court's history and the author of Justice Sandra Day O'Connor: Strategist on the Supreme Court (1996), Maveety is well positioned to evaluate the contributions of the Court's first female member during her twenty-five-year tenure from 1981 to 2006. Few, of course, would dispute the author's general premise that O'Connor "sat, figuratively if not literally," at the center of the Rehnquist Court (p. 4). Indeed, her pivotal role has long been recognized. Edward Lazarus, who clerked for Justice Harry Blackmun in the late 1980s, concluded a decade later that the Court "remains, as it was in my day, a creature of Justices O'Connor and Kennedy." The two "swing" conservatives controlled. "In case after case," Lazarus explained, "these swing-vote justices write separate concurrences, usually modulating the conservative insurgency

Forty-two years ago, the Warren Court decided the jurisprudential progeny of Baker v. Carr.1 Six cases, headed by Reynolds v. Sims,2 continued to remake the legal landscape of legislative apportionment using the “one person, one vote” principle. For President John F. Kennedy's Solicitor General, Archibald Cox, the Reynolds decisions were dangerous. He feared they would precipitate a constitutional crisis that would underscore why Justice Felix Frankfurter, his mentor, had urged his judicial colleagues to avoid entangling their institution in the “political thicket” of legislative apportionment.

For a period running from the late 1960s to the early 1990s, constitutional theory in U.S. law schools dealt almost entirely with constitutional interpretation by the courts. Legal scholars' obsession with interpretive theory arose from the political cir cumstances of their scholarship. Conservative legal activists cast their challenge to the Warren Court's liberal decisions not (sim ply) in terms of disagreement with the results, but in terms of the illegitimacy of the interpretive techniques the Warren Court used. According to conservatives, the only method of constitu tional interpretation that could confer legitimacy on the Court's decisions was one that focused almost entirely on the original meaning or understanding of the Constitution's words.1 The Warren Court (and then the Burger Court, to their dismay) did not follow the conservatives' prescription. Liberal constitutional theorists developed two responses to the conservative challenge.2 First, they directly took originalism on. One popular argument was that Under that approach, courts were to identify and rectify obstruc tions in the processes of democratic representation, and then stand aside. According to Ely, this approach reconciled vigorous judicial review ? within its proper domain ? with democratic self-governance, by using the courts to purify the processes of democratic representation without supervising the outcome of truly democratic processes. The second popular approach was Ronald Dworkin's invocation of moral and political philosophy to interpret the Constitution's rights-protecting provisions, which, after all, did use terms familiar to philosophers. The disputes between the liberals and the conservatives became increasingly arcane. Conservatives acknowledged that some constitutional provisions were understood when adopted to refer to somewhat abstract rights, but criticized liberals for manipulating the level of generality on which they inter preted those provisions and rights. They modified their position to deal with the problem of aggrega originalists could not provide a decent account of how the understandings held by individuals were aggregated into a single understanding that later courts could apply. Another was that originalist examinations of particular provisions were typically extremely simple-minded, of a sort derided by The legal academy generally con cluded that there was something wrong with an analysis that led to the conclusion that essentially all of the Supreme Courts work in the twentieth century if not before, was somehow illegitimate. tion, but claimed that revised original ist approaches remained plausible. Liberals acknowledged that American political traditions required recourse to some sort of originalism to justify judi cial interpretations, but insisted that such recourse need not be as rigid as conservatives insisted. historians as "law office history." The liberals were attracted to the argument that serious examination of the framing era disclosed an extremely complicated intellec tual universe, riven by serious conceptual disagreements that went to the proper understanding of particular constitutional pro visions. In light of those disagreements, liberals said, there sim ply was no original understanding that later courts could apply. A third popular response to conservative originalism emphasized the impossibility of directly applying original understandings to changed circumstances. Instead, liberals argued, courts today should invoke the values that underlay the Constitution's provi sions to see how contemporary statutes measured up against those values. The liberals' second response to conservative originalism was to develop alternative interpretive approaches that, they argued, made judicial decisions legitimate. Two such approaches were particularly attractive. The first was John Hart Ely's revival and rearticulation of the "Carolene Products footnote 4" approach. Eventually the fights over original ism petered out in the law schools, though they remained impor tant in the rhetoric of conservative political activists who focused on the courts. Conservatives discovered that the

Eight men who took the presidential oath also appeared before the Supreme Court of the United States as advocates. From Senator John Quincy Adams at the outset of the Marshall Court to Richard M. Nixon during the high-water mark of the Warren Court, future and past Presidents have argued before the Supreme Court on such varied and important topics as land scandals in the South, slavery at home and on the high seas, the authority of military commissions over civilians during the Civil War, international disputes as an aftermath of the Alaskan Purchase, and the sensitive intersection between the right to personal privacy and a free press. Here, briefly, are stories of men history knows as Presidents performing as appellate lawyers and oral advocates before the nation's highest court.

As the twentieth century ended, the Supreme Court's place within American liberalism became increasingly conflicted. The triumph of Ronald Reagan's Republican conservatism and the sudden cessation of the Cold War eroded the heritage of the New Deal and Great Society. The Supreme Court symbolized the rise, consummation, and decline of this liberal tradition. Franklin D. Roosevelt's success after 1937 in placing upon the Court supporters of his vision represented the New Deal's ascendency; the appointment to the Court during the 1980s and early 1990s of Reagan Republicans signaled that a new conservatism had taken hold. At the historical center of this gradual transformation was the Supreme Court under the leadership of Chief Justice Earl Warren, known to history as the Warren Court. From 1953 to 1969, it brought about the most significant expansion of civil rights and liberties the nation had ever known. Since the late 1960s, the rights revolution became synonymous with a larger, more activist liberal government, feeding growing public dissatisfaction which Reagan conservatism tapped to gain victory. Overcoming the Warren Court's legacy proved to be, however, more difficult than the conservatives had hoped; the new books by Mark V. Tushnet and Morton J. Horwitz reveal much about the origins and character of an ongoing struggle. Horwitz's small book summarizes well what has become the standard

In my work lately I have been considering whether we can get a better perspective on constitutional development and Supreme Court decision making by placing the Court and its policies/doc trines/interpretations in the larger context of "regime politics."1 I have no technical definition of regime politics; I am just refer ring to the various ways in which governing coalitions organize their power and advance their political agenda within a system of institutions. Within the political science literature I am using the work of Robert Dahl and Martin Shapiro as points of depar ture, and the "new institutionalism" literature as a template.2 From the point of view of governing coalitions, courts can be seen as similar to executive branch agencies. What these institu tions have in common is that they are staffed by politically appointed office holders who have policy-making responsibili ties over issues that are of interest to party leaders and their con stituents. This means that there is a routine and ongoing interest in shaping the "decision-making bias" of these institutions. The main differences between these institutions are that courts (a) have much more political insulation (and thus decision-making independence) and (b) have much broader policy-making juris diction. Of course, courts and agencies also generate different internal institutional norms that may impose different constraints or institutional viewpoints upon officeholders. What can be done with this starting point? In some recent essays I have tried to examine certain periods in American con stitutional development that are best understood as the by-prod uct of "partisan entrenchment," that is, an effort on the part of the President and Senate leaders to protect a potentially vulnerable political agenda by shaping the decision-making bias of the fed eral judiciary (and especially the Supreme Court). The two case studies I have looked at so far relate to the post-Reconstruction efforts of the Republican Party to promote an agenda of conser vative economic nationalism, and the efforts of Democratic leaders in the 1960s to reshape the federal judiciary so that it reflected the values of the Great Society.3 The point would be to see whether certain developments in constitutional law can be traced, not just to the individual policy preferences of judges, but to the agendas of political parties. In other words, when we think about the Lochner era, it may be more useful to think a little less about the specific jurispru dence and life histories of the individual justices and more about the attitudes of the post-Reconstruction Republican Party about how courts fit into their general agenda. This echoes Lucas Powe's point that the Warren Court is better seen as politically constructed to be a functioning partner in the promotion of the Great Society rather than as a creature of judicial whimsy.4 All of this is linked to other work on what might be called "the polit ical construction of judicial power."5 This effort to tie developments in constitutional law to politics outside the Court works best when one can show that governing coalitions have an interest in a specific area of constitutional decision making. There is good evidence that post Reconstruction Republicans cared about the treatment received by national corporations in the judiciary (after all, they changed the federal judiciary's jurisdiction making it possible to remove cases from state courts into the federal courts) and about the larger legal-constitutional context for the development of a national industrial economy. There is good evidence that Johnson cared about having the courts there to protect/promote a civil rights agenda. On the other hand, courts have very broad policy-making jurisdiction, and so it is inevitable that judges will be addressing issues that were of very low salience to the policy-conscious party leaders who selected them. When this happens, how accu rate is it to attribute the constitutional decision making to parti san entrenchment, or to some other extra-judicial feature of regime politics? Constitutional law governing free speech may be a useful focal point for this question. There is little evidence that Supreme Court appointments in the twentieth century have been driven specifically by a governing coalition's interest in advancing a certain understanding of free speech doctrine. Still, at various times in the 20th century, the nature of free speech doctrine has been an important matter for important political constituencies associated with governing coalitions. As Ken Kersch has pointed out, free speech law had important implica tions for the labor movement during the New Deal and for the civil rights movement in the years leading up to the Great Society, and there is good reason to think that "the shape of free speech law commonly reflects substantive regime commitments, expanding in certain areas and being trimmed in others."6 At a time when national party leaders had no real interest in extending special national protections to non-economic personal liberties, and when national elites of both parties favored corpo rate rights and were hostile to labor demands, it is no surprise that Supreme Court justices (chosen largely because they were reliable economic conservatives) would articulate first amend ment principles that were hostile to labor marches, pickets, or