Fear Strikes Out
LATHAM, EARL
Another look at the Supreme Court decisions Fear Strikes Out By Earl Latham The Supreme Court nine is making a new bid to climb in the standings. In last place for twenty years, the surging...
...Although Federalist John Marshall asserted the Court's authority to nullify acts of Congress, he never exercised this power against ascendant Jefferson - Jackson forces once he had settled it, and the dominant influence in the Federal Government until the Civil War was in the political branches, not the Court...
...This was the Dred Scott case, exactly 100 years ago, when the Court tried to perpetuate a property interest in slaves precisely at the moment in American history when this interest was to be crushed forever...
...Except in the instance of Negro rights, the beneficiaries of the Court's new doctrines are not a cohesive constituency, and the floating euphoria of the Eisenhower era could disappear with the departure of its author...
...After temporarily turning back some of the works of Populism in 1895, the reputation of the Court lost little luster...
...All this is familiar...
...As the liberal rooters applaud the play, those who keep the records may remember that the judges have been pretty unreliable protectors of civil liberty...
...Although the Court was to reverse the Gobitis case, promote Negro rights, and carry the religious freedom of sectarian cults to occasional absurd conclusions in the war years, main lines of libertarian defense were yielded in cases involving relocation, military rule, saboteurs, and Japanese generals...
...With the judges no longer afraid to risk the outcome of controversy, fear has struck out, and the judicial team is enjoying its hottest batting streak in years...
...One answer is new judges...
...Another is new times...
...The forum where libertarian causes are won or lost is the legislature...
...The judges were not unaffected by the discord of the people's discontent...
...Since the price of mere survival had been surrender to Congress of the power over the economy, the Court began the extensive promotion of non-Manchesterian civil liberties, new freedoms of personal and political definition without economic content, a kind of freedom to which the Court before 1936 had actually been largely indifferent...
...Domestic grievances built up in Roosevelt's second term, and bottled up in his third and fourth terms, were battled out in the years 1946 to 1952 in bitter acrimony...
...And so came the great detente...
...The period between the Civil War and the New Deal was the zenith of judicial power...
...Unfortunately for this design, the country soon went into war when, historically, judges have been modest about their powers...
...The one time in more than half a century when the Court did wield the power that Marshall said it had, produced a disaster...
...In 1857 and 1935, the Court was out of trim with the actual equilibrium of power in the country...
...The people turned from controversy over public affairs to the single-minded pursuit of private aspiration...
...This is why the Court lost influence both times...
...It lacked what Justice Oliver Wendell Holmes called that "conformity to the wishes of the dominant power" that he thought was the test of a good government...
...The crowning ¦frustration was the election of Truman in 1948 when more people voted against him than for him, but couldn't unite on his successor...
...In a fertile burst of judicial invention, the Court wrote new accommodative law: Corporations became persons eligible for benefits in the Constitution intended for human beings...
...in 1954, and 1956, a substantial bipartisan bloc felt that the man in the White House should stay...
...Although the Court's command in 1895 was unpopular with liberals then and later, the decisions in the main satisfied the Holmesean condition, for ascendant business elements who were favored by them continued to prosper in influence, and the reformist Populists were never able to win by war as in 1861, nor organize an Administration, as in 1933...
...The comparable period earlier in the Court's history was the Roger Taney period, especially in the 1840s and 1850s, when the social strains of the day sometimes tore the Court into fighting factions...
...The extensive development of Manchesterian civil liberty after 1884 raised the prestige of the Court to its greatest height, not only because the new enterprise had wide support in the culture, but because it had the fervent support of that very powerful constituency — the managers — who operated the new enterprise...
...Only superficially did this split resemble 1946: Then, a substantial bipartisan bloc felt that the man in the White House should go...
...The Court could find itself without support in depth in the competition in which it has just scored high...
...The reputation of the Court was not restored until well after the Civil War, but the comeback then was spectacular...
...wage laws were null, and those fixing hours only cautiously approved...
...After a generation of soft-saying and yes-butting, the judges are brushing Congressmen back with high hard ones, and heckling the FBI from the cool dugout of Equal Justice...
...and it succored a minority which, however conscious and clamorous, was no longer dominant but doomed...
...How to account for this regeneration which, for the Court as a whole, rivals the comeback of Jimmy Pier-sail of the Boston Red Sox...
...Social strife and party struggle were in indefinite abeyance...
...perverse reading made the Sherman Act a charter for good monopolies and the Clayton Act a trap for unions...
...Two useful conditions for the enlargement of the judicial power now exist: social agreement on the fundamentals of public policy and alliance with the dominant influence—in this case, the Eisenhower coalition of most Republicans and many Democrats...
...The people's voice, like Ophelia's mind, was sweet bells jangled, counter-pointed by cowbells and bazoos in a general cacophony...
...Conversely, when the pattern of political power is reasonably stable with widespread social agreement on the fundamentals of public policy, and the Court has the support of powerful constituencies outside it, judges more easily advance their institutional position in the Federal trinity...
...but when the Court tried to save the country from the New Deal, it was challenged by the President, and it emerged from the struggle beaten, divided and discredited...
...The Court worked a prodigy of devotion to its economic principles in 1895 when, in one year, it killed the income tax, fashioned the injunction into a strike-breaking device, and refused to break up a 98 per cent monopoly on the ground that it had nothing to do with interstate commerce...
...So little did they come to think of party labels that they voted split tickets, and divided party offices between the White House and Congress...
...Plausibility is lent the thesis that it is new judges that make the difference, by the fact that Eisenhower has already appointed four...
...But Earl Warren, William Brennan, John Harlan and Charles Whitaker are not a force en bloc for the New Republicanism, and personalities, although significant, do not seem to have been the decisive elements in the formation of judicial power, or in the adjustment of its balance with other branches of the Government...
...legislatures lost to judges the power to fix final utility rates...
...The Court may now feel that the times are propitious for such an advance...
...To the contrary...
...The heroic posture of the judge defying the behemoth of majoritarian power is largely a fiction of the winter-banquet circuit...
...Historically, the Court has had its ups and downs...
...Although they often talk about the needs of the times, they have to wait for a consensus to proclaim it...
...Personality plays its part in this attunement because some judges are more accurately stringed than others...
...With political controversy now a matter of bad taste, the Supreme Court seems prepared to return to its unfinished business—the restoration of its pristine power through the promotion of civil liberty...
...It might be said that enterprise lost to welfare because it lacked a strong bench, but there are better explanations...
...It is social imperatives that ultimately shape the law, and indeed, the judges say as much when they talk attuning the law to the felt needs of the times...
...Their influence is peripheral, interstitial and s oblique...
...With the end of the war, the opportunity seemed at hand to renew the tasks of restoration begun by Hughes, but surcease of war abroad did not lead to decrease of domestic tension at home...
...In last place for twenty years, the surging jurists now threaten to overtake Congress and the President, who have not failed to finish one-two since 1937...
...and for every Taney trying to serve the writ of habeas corpus inside Fort McHenry there are scores of courageous political profiles in the legislative chambers...
...Before the 1930s there were few such cases, and defendants didn't fare particularly well in them...
...Like his predecessors after the Civil War, though doubtless not in imitation, Chief Justice Charles Evans Hughes and a working majority of his brothers began to repair the prestige of the Court in 1937 by asserting its authority in new directions...
...One secondary sign of the absence of general agreement on the fundamentals of public policy was the large number of plural opinions in the Supreme Court, where the judges tended to speak in solo, with the minimum rapport in some cases necessary to decide the issue...
...When the balance of political power in the society is shifting from one point and plane to another, the judges risk much if they guess wrong about it, and mistake the tendency...
...In suggesting that the times rather than personalities account for the Earl Latham is a professor of political science at Amherst College...
...It disappeared with the election of Eisenhower in 1952...
...new vigor of the Court, one can go further and say that the judges rarely decide fundamental questions of power in the society by themselves...
...And then the tension suddenly abated...
...Hegemony was won by the development of a new law of civil liberty, a Manchesterian civil liberty with a rich economic content, that constitutionalized the gospel of wealth and the freedom of enterprise...
Vol. 40 • August 1957 • No. 33
