“Never in its entire history can the Supreme Court be said to have for a single hour been representative of anything except the relatively conservative forces of its day.”
So wrote Robert H. Jackson in The Struggle for Judicial Supremacy, a book written, as he put it, “in odd intervals between arguments in Court as Solicitor General” between 1938 and 1940. Those years followed the great fight over President Franklin Roosevelt’s plan to break a conservative judicial stranglehold on the New Deal by packing the Supreme Court with up to six new members.
How strange Jackson’s words must seem to most Americans today. By the end of 1941, the year his book was published, Roosevelt had made seven appointments to the Supreme Court, including finally Jackson himself—and the Court was utterly transformed. Over the sixty-five years since then it has largely been a liberating force in American life, on such matters as race, freedom of speech and the press, privacy, political districting, and the criminal justice system.
Few Americans know now what the Supreme Court was like before 1937. It held in 1905 that a New York law limiting the work of bakers to ten hours a day deprived them of liberty without due process of law. (Justice Holmes, dissenting: “A constitution is not intended to embody a particular economic theory….”) It held in 1918 that Congress went beyond its power over interstate commerce when it forbade the introduction in commerce of the products of child labor. (Justice Holmes, dissenting: “It is not for this court to pronounce when prohibition is necessary to regulation—if it ever may be necessary—to say that it is permissible as against strong drink, but not as against the product of ruined lives.”) From 1935 until the spring of 1937 the Court tried to disable the federal government’s efforts to deal with the worst economic disaster the country had known.
The question at hand—the profound question—is whether the Court is about to turn back toward something more like the conservative voice that Robert Jackson described: not all the way back to the extremity of, say, the child labor case but significantly retreating from its modern role as the guardian of individual liberty. Will it, for example, abandon or drastically reduce its protection of women’s right to have an abortion? Will it yield to the Bush administration’s unrelenting pressure for unconstrained executive power?
The question arises, of course, because of Justice Sandra Day O’Connor’s retirement and her replacement by Justice Samuel Alito. The conservative movement in the country has been pressing for years to undo or roll back the liberal legacy of Chief Justice Earl Warren’s Supreme Court. That passionate wish has been frustrated as justices appointed by three Republican presidents—Nixon, Reagan, and Bush I—turned out to be on the whole more moderate than desired and, in particular, preserved the constitutional protection given to abortion by the decision in Roe v. Wade. Now, many conservatives believe, their moment has finally come with the second Bush’s appointment of John G. Roberts as Chief Justice and of Justice Alito.
In these past years of right-wing frustration, Sandra Day O’Connor played a crucial part. On abortion, affirmative action, and some other issues, she cast the deciding vote that preserved the status quo. Depending on one’s point of view, she was a brave defender of the Constitution or a traitor to the president who put her on the Court, Reagan, and his supporters. All of which makes Joan Biskupic’s study of Justice O’Connor a timely and important book.
Biskupic says O’Connor became the Court’s “most influential justice.” That is true in a nose-counting sense. In notable 5–4 decisions she was on the majority side, the decisive vote. But it is not true in the sense of propounding a doctrine, an approach to interpreting the Constitution, that influenced her colleagues and remains a beacon for future justices. By contrast, think of Justice Hugo L. Black, who single-mindedly argued for an absolute view of free speech. He was often in dissent, on that and other matters, but over the years many of his dissenting opinions became the law—strikingly so when the Court in 1962 overruled its earlier view and held that the fairness of legislative districting was subject to judicial scrutiny.
In deciding cases in which fundamental judicial beliefs clashed, like affirmative action and abortion, O’Connor frequently avoided taking either side in the philosophical debate. Instead she looked for factual points and nice legal distinctions that enabled her to come out somewhere near the middle. Under the impact of the Voting Rights Act of 1965, for example, some Southern states that had long had all-white delegations in the House of Representatives made changes to assure that there would be black-majority populations in some districts. White voters challenged the process, saying it denied them equal protection of the laws. Justice O’Connor, skeptical of the process, at first held the black-majority districts unconstitutional; but she later approved such redistricting, drawing fine distinctions that others could not see.
That approach was praised by advocates of what Professor Cass Sunstein of the University of Chicago calls judicial “minimalism.” Biskupic quotes Sunstein’s view that avoiding large constitutional principles as the basis for decisions is a way “to keep things open for the future…for democratic deliberation….” Another admiring quotation, from Professor John Jeffries of the University of Virginia Law School, describes Justice O’Connor’s method as “first, to do justice on the facts of a particular case,” then to link “the results in the case to general principles.” “That’s a very different approach from someone who starts off with ideological principles,” Professor Jeffries said, adding, “I think Americans generally have more confidence in judges who do not reach too broadly.”
Others were critical. Too often, they said, O’Connor’s opinions gave no meaningful guidance to lower-court judges—which is one thing Supreme Court decisions are meant to do. They were like restricted railroad tickets, as Justice Owen J. Roberts complained in a 1944 dissent, “good for this day and train only.” An example of an opinion so narrow as to leave the law in question, in my judgment, was in a 1993 decision, Shaw v. Reno, holding that a “bizarrely” shaped North Carolina congressional district had unconstitutional effects on white voters—without indicating what could be done to improve the chances that at least some black candidates could be elected from that part of North Carolina. Justice Byron White, in dissent, said that concentrating on the shape of the district rather than the impact of the districting on the real world set no usable standard. White pointed out that white voters still were a majority in ten of North Carolina’s twelve congressional districts—a bit more than their share of the state’s population.
O’Connor’s opinion in Shaw v. Reno leaves the impression that she was simply uneasy about using skin color as the basis of a governmental decision. She came close, in other words, to the position of the four justices who voted consistently against any affirmative action: Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. But she held back from adopting such a firm rule, and that was crucial to the future of the issue. It left the way open for the Court’s later decision—in an opinion by O’Connor—upholding the steps taken by the University of Michigan Law School to assure minority representation among its students.
For an assessment of Sandra Day O’Connor as a judge, then, the case of Shaw v. Reno shows the advantages and disadvantages of her incremental approach. I think it also shows the limitations of her historical understanding. Biskupic quotes what she calls a “rhetorical flourish” from the opinion: an assertion that the North Carolina districts bear “an uncomfortable resemblance to political apartheid.” It was a grotesque flourish, if flourish it was, to compare South Africa’s denial to its black majority of the right to vote at all, and virtually all other rights, with an attempt to assure blacks in the American South a chance to elect some of their own after suffering unconstitutional discrimination for a century.
Biskupic makes no comment on O’Connor’s flawed analogy to apartheid. Throughout the book she avoids critical analysis of her subject’s opinions. She gives dissenters their day, straightforwardly describing the opinions on both sides and, often, giving illuminating accounts of the struggles behind them that took place among the justices. Her reporting is fair and accurate, but I found it a bit bland and, sometimes, lacking a larger perspective. I especially missed discussion of the turbulent history behind one of the main themes of O’Connor’s years on the Court: state versus federal authority.
The child labor decision of 1918 was not an isolated example of the old Court’s narrow view of the federal government’s power under the Constitution. Again and again the Court found that federal regulations and laws went too far. In 1936, in the depths of the Depression, it struck down the Agricultural Adjustment Act of 1933, which sought to raise grimly depressed farm prices by cutting production of various crops: a model for the system that exists today without any constitutional challenge. It was decisions like that one, United States v. Butler, that led President Roosevelt to challenge the Supreme Court. His Court-packing plan—which would have allowed him to appoint a new justice if a justice refused to retire at seventy—was rejected by public opinion and by Congress. But the Court retreated, and conservative justices began to retire. Before long the Court upheld federal regulation of wages and hours, and federal limits on the wheat a farmer could grow even for his own use.
In 1995, in United States v. Lopez, the Supreme Court held unconstitutional—as beyond Congress’s power over interstate commerce—a federal statute barring guns in zones around schools. It was a startling reversal of the assumption, almost universally held after the wheat-grower’s case and other landmarks of the post-1937 judicial revolution, that Congress could regulate just about any activity as an aspect of interstate commerce.1 The opinion for a 5–4 majority was by Chief Justice Rehnquist, joined by Justice O’Connor. Biskupic describes it in a few sentences, with no reference to the history behind it,
The federalism revolution, as commentators called it, was marked by a series of cases deciding that Congress could not authorize civil suits against state agencies that violated federal laws. Among the statutes thus restricted were ones that authorized patent and trademark suits against states, one that directed states to negotiate with Indian tribes about gambling activities and allowed tribes to sue states that refused to do so, and one requiring states as well as private employers to give premium pay for overtime.
The basis of all those decisions was the Eleventh Amendment to the Constitution, which forbade suits by a citizen of one state against another state. It was intended to deal with suits on issues of state law, such as contract disputes. These decisions applied the amendment to suits on federal issues, including cases brought by individuals against their own states. The text of the Eleventh Amendment did not literally cover the situation. But the Court’s majority said the amendment implied a larger principle: the sovereign immunity of states, which was essential to the states’ “dignity.” They were breathtaking decisions, breaking sharply with precedents. They have been neglected in public discussion, and Biskupic does not convey how astonishing they were, or remark on the irony that conservative judges who often complain about judges “legislating from the bench,” and departing from constitutional texts, were engaging wholesale in those practices.
In 1971 Philip B. Kurland, a greatly respected professor at the University of Chicago Law School, wrote: "For all practical purposes, federalism in this country is a thing of the past.... The national government now has plenary governmental authority. That is to say, there is no area of governmental operations that cannot be rationalized as coming within the national sphere, whether by reason of the power over commerce or some other amorphous grant of authority." Statement before the House Committee on Government Operations, June 30, 1971, reprinted in the Green Bag Almanac (2006), p. 308.↩
In 1971 Philip B. Kurland, a greatly respected professor at the University of Chicago Law School, wrote: “For all practical purposes, federalism in this country is a thing of the past…. The national government now has plenary governmental authority. That is to say, there is no area of governmental operations that cannot be rationalized as coming within the national sphere, whether by reason of the power over commerce or some other amorphous grant of authority.” Statement before the House Committee on Government Operations, June 30, 1971, reprinted in the Green Bag Almanac (2006), p. 308.↩