In response to:
A Prisoner of His Own Restraint from the November 3, 2022 issue
To the Editors:
Jed S. Rakoff’s fine review of Brad Snyder’s biography of Felix Frankfurter [NYR, November 3] is incorrect in one detail: the turn to more progressive decisions dates at least from FDR’s reconstitution of the Supreme Court in his second term, after the failure of the court-packing plan. From then on New Deal and progressive legislation had a smooth ride until quite recently. Chief Justice Earl Warren sped up that momentum in Brown v. Board and Baker v. Carr. Frankfurter joined the first and dissented in the second. William Brennan joined the Court in 1956. No doubt the Nixon judges (Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist) slowed this down, but they were there for and joined—not all of them—Griswold v. Connecticut and Roe v. Wade. Even the Rehnquist Court did very little damage to the trend, perhaps mainly in matters of criminal and civil procedure.
The radical differences started with the Roberts Court. The press likes to describe these and the justices who animated this trend as conservative. They were not that—think Edmund Burke, the iconic conservative. The correct term is “reactionary,” and the best description of what they are doing is a program to repeal the twentieth century. And by that I would include the reforms of Theodore Roosevelt and Woodrow Wilson. Think of administrative law and administrative agencies’ regulation of business, regulation of elections and campaign finance laws (through McConnell v. FEC in 2003), the empowerment and regulation of public- and private-sector labor unions, the secularization of publicly funded primary and secondary education—in all these areas in the last few years the Court has overturned precedents and doctrines, understandings and practices reaching back at least to 1903. And there may be more to come.