The Supreme Court and the Idea of Progress
Professor Bickel’s book has had more attention than most books by law professors—even when they write about the Supreme Court. I was not in the United States when the book was published, but I saw several newspaper columns and a rather long article in Time magazine about the book, all of them claiming that it was a thorough-going and harsh criticism of the Warren Court. Bickel’s view that the Court’s most famous decision, Brown vs. Board of Education, is “irrelevant” and obsolete was regarded as especially news-worthy. The dust jacket, moreover, tells us that the book accuses the Court of “irrationality, inconsistency, and, at times, incoherence; of overconfidence in itself and in the rule of the majority; and of unwise decisions which lead to undue centralization of government.”
The book does not live up to its advance billing. For the most part the arguments in it are all familiar ones—at least within legal and academic circles—having been made previously by Professor Bickel and many other law professors in the law reviews. His criticisms of the Warren Court, while often polemical and strident, are, if anything, less harsh and more balanced than a number of others that have appeared during the past fifteen years. The book is neither especially novel nor forceful in its criticism of the Court. It is of interest largely because it illustrates a common kind of legal, academic criticism and is worth examining for this reason.
Bickel criticizes in detail the major decisions of the Warren Court and presents some general arguments intended to show why the Court went wrong and how it might improve. As he makes clear, he sees himself as writing in the tradition of judicial criticism associated with Felix Frank-furter, Learned Hand, and the teachers of Constitutional law in many law schools, especially Harvard and Chicago. This tradition puts great weight upon the rigor of the methods used by the Supreme Court in accepting and deciding cases; and it places even more emphasis upon the “conservative” judicial position, which insists that the court has no business attempting to solve complicated and controversial social problems. Bickel moves beyond this tradition, however, in his willingness to give equal, if not greater, weight to the historical effects of the Court’s decisions, which he analyzes to discover whether on the whole they have worked in practice.
Most of Bickel’s “internal” criticisms of the Court are of a kind that is familiar to legal academicians and lawyers. He tries to show how the Warren Court strayed from the traditional canons of judicial craftsmanship to which the Supreme Court is supposed to adhere. The purpose of these canons is to ensure that the Court will not be arbitrary or cursory in deciding cases but will decide them in accordance with appropriate rules and principles of law. They insist that due weight be given to the earlier decisions, or precedents, made in analogous situations, to the legislative history of relevant statutes, and to the relationship of the Court to other institutions of government. They emphasize the importance of explaining carefully and plausibly on what grounds a decisions rests.
In a general way, adherence to these canons does make good sense. It is obviously desirable, for example, that the Court attend carefully not only to the language of a statute but to what took place in the legislature when it was passed. A number of the specific flaws Bickel finds in the various opinions of the Warren Court are worth noting, although they are, as Bickel himself concedes, perhaps no more serious or numerous than those of the Marshall Court or any of the other great eras of the Supreme Court. These canons, moreover, are a good deal more slippery than is generally granted in legal circles, and some of Bickel’s own attempts to apply them are hardly convincing. Sometimes the stridency of his language simply becomes a substitute for persuasive analysis.
Thus he charges that the Court has willfully simplified, if not distorted, history. To support this claim, he cites Katzenbach vs. Morgan, a case which concerned the constitutionality of that portion of the 1965 Voting Rights Act which extended the franchise to Puerto Rican citizens of the US who were literate in Spanish but not in English, and who were barred from voting by state statutes requiring literacy in English. The Supreme Court upheld the power of the Congress under the Fourteenth Amendment to pass this portion of the act. Bickel rejects the Court’s interpretation of the Fourteenth Amendment on the grounds that it has distorted history:
The framers of the Fourteenth Amendment explicitly rejected the option of an open-ended grant of power to Congress freely to meddle with conditions within the States, so as to render them equal in accordance with Congress’s own notions. [p. 48]
For all its assertiveness, this is not convincing. To begin with, Bickel does not support this statement with any evidence whatever. There is neither a footnote to anyone nor a quotation from anyone to show an explicit (or even implicit) rejection of anything. In addition, his notion of the “framers” is a notoriously vague and ambiguous one. Bickel nowhere tells us whom he has in mind or what would count as evidence of “rejection” by a “framer.” Most important, the passage quoted above serves to show how merely pejorative language can be invoked to make a point. Terms such as “open-ended,” “meddle,” “Congress’s own notions” lack rigor and are little more than rhetorical. They do not inform, but do create a mood. Yes, we are inclined to nod, the framers probably didn’t want to give an open-ended grant of power to meddle.
Another kind of internal criticism, and it is the one most often made, is that the Court failed to give a satisfactory reason for its decision. Again, many of Bickel’s observations are sound, but not all of them, for example his attack on the Court’s decision in Harper vs. Virginia Board of Elections. In that case the Supreme Court declared the poll tax unconstitutional. According to Bickel, its reason was that the levy of such a tax was not plausibly related to any legitimate State interest in the conduct of elections. Bickel’s objection to this rationale can be simply stated: the levying of a poll tax is not necessarily capricious or irrelevant, as the Court argued. It might, for example, be imposed by a State in order to weed out those of its citizens who lack a sufficient interest in civic affairs to plunk down their $1.50 or $2.00.
The problem with this kind of argument is that it is too easy to make. Bickel says that the poll tax is not necessarily capricious. Of course it isn’t. But then, barring a legislature that is both candid and insane, no piece of legislation would be necessarily capricious. When a Court holds that a statutory requirement is unconstitutional because it is irrational, it can be making any one of several different kinds of rough, but plausible, judgments. It can be saying that the requirement is not convincingly imposed because it is not justifiable when considered in respect to other interests that are interfered with. It can also be saying that the requirement is not convincingly imposed because it is ill-designed to achieve the objective that is sought.
In barring the poll tax the Supreme Court in the Harper case can be understood to be saying two things: first, that it does not regard the states as having a significant interest in limiting the franchise to those who “really care” about voting (especially since if they don’t care they won’t vote). And second, that it regards the connection between paying a poll tax and “really caring” as an extremely unlikely one. To put the matter this way is not, I think, to strain the Court’s characterization of the poll tax as capricious.
Less satisfying than Professor Bickel’s views on particular decisions are his attempts to elucidate the general grounds upon which his internal criticisms are based. Too often, as I have said, the discussion depends on his use of merely pejorative terms. Characteristic of the entire effort is his description of the Court’s internal failings as excessively “subjective.” Subjectivity, preferences, ad hoc determinations, these are all obviously naughty, for Bickel. They are to be contrasted with objectivity, principle, reason, and other comparably virtuous qualities.
The difficulty with this way of putting things is that the labels become substitutes for meaningful analysis. So I do not think Bickel has said very much or anything controversial when he asserts that a Supreme Court such as ours in a political democracy can only be justified, “if at all, only in the claim that the function never relinquishes the pursuit of reason, and that ultimately it is principled, that the Court does not discharge its office even by doing what most people may think is right or necessary, unless it does so in a principled fashion” (p. 86). All of the justices on the Supreme Court would insist that they too strive for objectivity, principled decisions, and reason. If they have gone wrong it is not because there are any theoretical disagreements on this point. None of the justices, certainly, is committed to the view that his own “subjective preferences” ought to determine the outcome of cases.
The more celebrated charges Bickel makes contain quite different sorts of objections and claims: those relating to how the Court’s decisions worked out in fact. It is, however, hard to see why so much fuss has been made about his argument. Here is one version of it:
…the Warren Court’s noblest enterprise—school desegregation—and its most popular enterprise—reapportionment—not to speak of school prayer cases and those concerning aid to parochial schools, are heading toward obsolescence, and in large measure abandonment. [p. 173]
Obsolescence and abandonment are not very clear notions, but let us see what the claims concerning them come to. In the case of school desegregation, to take only one example, Bickel’s argument turns out to be a weak one for at the outset he makes an enormous qualification: to the degree to which Brown vs. Board of Education was concerned with the evils of segregation imposed by the State—and that was surely the central focus of Brown vs. Board of Education—Bickel does not, apparently, have much to quarrel with. Indeed, his only comment upon what he calls the “minimal” proposition of the Brown case is that it was “about time” that the State was forbidden to classify the population along racial lines (p. 118). In Bickel’s view, Brown is obsolescent only where the Court discusses the central role of education and the harm done to black children who receive a segregated education.
Suppose, he writes, the principle of the Brown case is that segregated education is harmful to black children regardless of whether the segregation results from State laws, or, as is commonly the case in the North, from patterns of residential living. On this reading of Brown, segregated education, whatever the cause, is unconstitutional. It is this special principle and the underlying commitment to the assimilationist role of the public school that Bickel thinks is being abandoned.