“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 …