A. E. Dick Howard
Professor of Law and Public Affairs
University of Virginia
"The Changing Face of the Supreme Court"
May 3, 2002

A. E. Dick Howard: I want to try out an idea, which is really a hypothesis, that I have been thinking about.  I have not put it into print, but I am thinking about doing that.  I want to take a Jeffersonian motif to frame these remarks.  You will forgive me for quoting Thomas Jefferson here, of all places.  Even the provost might not know that it is written into my contract that I cannot go on the road and give a talk without quoting Thomas Jefferson at least once.  So I will get the obligatory Thomas Jefferson quote in at the beginning of the talk and we will all agree on that.  

Jefferson wrote a letter to a friend of his in 1816 on the subject of the Virginia Constitution.  What he said was, and I am paraphrasing the letter, each generation reinvents the constitution.  In Virginia we have done that.  We have rewritten the state constitution a half of dozen times in 200 years.  He has been proven right on that score. 

What I was thinking, and this is a slightly more contentious notion, is to try out the idea--might it be argued that the Supreme Court reinvents the Constitution once each generation.  Now you might say, "wait a minute.  It is not their job to do that.  They are supposed to interpret the Constitution, not to rewrite it.  That is what the people do through the amending process."  I grant that is the formal structure.  But let me try out this notion that maybe there is more organic change from the court than one might realize.

When Jefferson wrote his letter in 1816, he had to define what a generation is.  He looked at mortality tables of that age when people did not live that long.  He said that of all the people 21 years or older, half would be dead in nineteen years.  So, he said that nineteen years was a generation.  We live longer, happily, so I am going to pick 30 years, as a round number, as a generation.  I am not going to take you all the way back to the beginning of the Republic.  I think neither our time nor your patience will bear that.  But let me take the last century, just the Twentieth Century, and divide it up into three parts--roughly 30 years-- and suggest that you will find the following pattern when you think about the Supreme Court.

I want to start with a 1905 case out of the Supreme Court.  I will not trouble you with case cites and all that sort of thing.  In this 1905 case, the court was reviewing a statute from New York which limited the number of hours that bakers could work in a day.  In our time this would be a fairly conventional sort of piece of economic or social legislation.  When the court reviewed that New York statute in 1905, the court struck it down on the grounds that workmen could decide for themselves how long they wanted to work.  The court said that this was, as they put it, a "meddlesome interference" with the right of grown men to decide for themselves what their laboring conditions were going to be.  I doubt that the laboring men of New York much appreciated that gesture on the court's part. 

That case framed the court's philosophy for the next generation.  From 1905 to roughly the 1930's, the court, on a number of occasions, struck down both state and federal laws that were seen to interfere with freedom of contract or rights of property.  The court was very much protective of enterprise and of the marketplace. 

Fast forward to the 1930's--my second benchmark.  In the mid-1930's we had the collision between the Supreme Court and the New Deal.  Franklin Roosevelt, elected after the Great Depression, was beginning to reconstruct the country's economy, but the Supreme Court stood in the way.  It was still of the mindset of the court of 1905.  At first the court, in about 1935, was striking down major parts of the New Deal--major legislation meant to restructure the economy.  This could have provoked a constitutional crisis. 

You have read, of course, about Franklin Roosevelt's "court-packing plan."  The idea was that, if this plan had been adopted, for each justice then over the age of 70 who did not retire, an additional seat would be created on the Supreme Court.  There were nine justices on the court and this would have added five additional seats on the court for Roosevelt to fill.  Somehow the court got the message.  Historians have debated exactly why the court shifted course, but they did change course.  Roosevelt's plan was never adopted.  A wag once called it, "the switch in time that saves nine."  This is what passes for humor in constitutional law classrooms.  The court changed course, the court stepped out of the way, and Roosevelt got on with the business of the New Deal. 

For the next generation, the court was a bit more off-stage center.  It was not as conspicuous in the life of the country.  We were focused more on the presidency and congress.  Now that takes us to the 1960's as I move from one generation to the other.  I am now moving a period where many people will remember the events of the 1960's--certainly I do.  We enter the age of the so called Warren Court. 

Earl Warren, Chief Justice in the 1960's, ushered in an unparalleled age of judicial activism--a breathtaking period in the Supreme Court's history.  In a very few years in the mid-1960's, the court's record was really quite remarkable.  To give you a couple of examples, this was the period during which the court laid down the one-person, one-vote decree, which restructured American politics at the state and federal level.  Most states had legislators in which rural areas were over-represented and cities were under-represented.  This changed all that.  And indeed where it placed political power, as a footnote, was not so much in the inner city as it was the suburban areas.  If you want to think of why the Republicans took control of the House in 1994, I think you can trace it back to that Warren Court decision in the 1960's.  So, one-person, one-vote was a Warren Court decree. 

The nationalization of criminal Justice.  It was the Warren Court that took the provisions of the Bill of Rights, which had been written to apply to the federal government, and applied them one at a time to the state court system.  The right to counsel, confrontation, cross-examination--all the procedural rights now became rights that you had in state courts as well as federal courts.  That was a revolution of criminal procedure.

The third example is civil rights.  The 1960's, of course, was a time of the Civil Rights Movement--Martin Luther King, the marches in Birmingham.  During that period, of course, blacks were simply not represented on school boards, city councils or state legislatures in the deep south of America.  They really had no place to go but the courts.  When those cases involving sit-ins or demonstrations or the like came up to the Supreme Court, in case after case the Supreme Court would overturn those convictions.  I once counted 30 cases between 1961 and 1965, all involving direct action, and in every one of them the court found some theory--first  amendment, due process, equal protection or whatever--to  overturn the conviction.  So, it was clear that the court was sending a signal to the country that the court was there to protect this particular minority. 

One other example, just to give you a case that I think nicely sums up nicely the Warren Court, is a case from 1965, which is convenient for me because it is exactly six years after my starting point.  It was a case called Griswold vs. Connecticut involving a Connecticut law that forbade the prescribing or use of birth control devices.  Why in the world Connecticut wanted to have that law in the books was never clear, but there it was.  The problem was this--most people, on or off the court, could agree this was an uncommonly silly, pointless law.  But, laws can be silly or pointless.  The problem with the court was whether or not it was unconstitutional.  It might be bad policy, but it could still be completely valid.

The court fumbled about in Griswold vs. Connecticut.  Justice Douglas wrote the opinion for the court.  He had a very strange opinion where he put together different parts of the Bill of Rights.  He talked about emanations from the penumber--the Bill of Rights-- creating a right of privacy.  I have taught constitutional law for a while and I still am not sure what an emanation from a penumber is.  I mean, if I met one out here on University Avenue, I am not sure that I would recognize it.  But it was enough for Douglas.  He said that this was the font of a right of privacy. 

The reason I mention this case as typical of the Warren Court is because, here was a court of social engineers.  They saw a problem and they fixed it.  They were not too worried about the niceties of legal analysis and interpretation.  They got right to the point and did something about it.  That is a very American kind of way to fix problems, but the problem was that a lot of people thought that this was not the court's business.  If you were a liberal activist in the sixties, you thought the Warren Court was great.  If you were of a more conservative bent, you were probably complaining about the court and going around being anti-majoritarian, anti-democratic.  Your complaint was, "who elected the judges to make all these policy decisions?"

I remember an observation made by a professor at the University of Chicago who said that if the road to hell is paved with good intentions then the Warren Court is one of the great road builders of all time.  And that kind of sums it up.

One of the people who did not like the Warren Court was Richard Nixon.  If you remember his first successful campaign for the presidency in 1968, you may remember that Nixon went around the country making very militant speeches attacking the Warren, especially some of the criminal justice decisions.  It was a very militant sort of rhetoric he imagined.  There were the forces of peace and the forces of crime that were in war against each other.  And here was the Warren Court preferring the criminals and not the tax-paying, God-fearing, law-abiding people of America. 

Nixon's pitch was fairly simple.  He said that if you elected him president, he would nominate a very different kind of justice of the court.  He would have judicial conservatives on the court and not this liberal, mad crowd of Warren Court activists anymore.  Nixon was elected and it was a close election, as I recall.  But he won.  And then history played one of its funny little tricks.  Justices are on the court for life and good behavior.  Some of them hang around for a very long time.  There have been, I think by my count, 109 justices in the over two centuries of American history.  That means that, if they retired evenly, there would be a vacancy about every two years.  But it is not even.  They bunch.  Jimmy Carter was president for four years and there were no vacancies.  On the other hand, when Nixon was elected as president, in the first term of Nixon's presidency, there were four vacancies.  You talk about a piece of luck.  One short of a majority on the court.  So naturally, the country was on the edge of its chair waiting to see what Nixon would do.

He started off with what he called his "Southern Strategy" and you may remember this.  He wanted to lock-up southern votes in the next presidential election.  So he appointed Clemon Hainsworth, a very eminent justice from the fourth circuit who was defeated.  Then he reached even further, and I do not know if anyone in the room remembers the name G. Harold Carswell.  He was not fit to be on the lower bench, much less on the U.S. Supreme Court.  So he was shot down.

After these efforts, Nixon did finally get his people nominated and confirmed.  He put on the court Warren Berger as Chief Justice, Harry Blackman, Louis Powell from Richmond--Virginia's contribution--and then finally William Renquest.  By January 1972, all four of these justices were seated on the court together.  The expectations rose and journalists started talking about the "Nixon Court."  I remember an editorial cartoon in the Washington Post who drew this picture of the nine justices of the supreme court all in black robes, each wearing a Nixon face mask.  If you were a card-carrying member of the ACLU, that would make you sleep under your bed at night, wouldn't it?  Imagine the Nixon court marching triumphantly over our liberties.

A funny thing happened as time passed, people stopped talking about the "Nixon Court" and started talking about the "Berger Court."  The counter-revolution that people were predicting never happened. It simply did not come to pass.  I would argue, and this is not the conventional wisdom, that if you take the Warren Court from 1960 to 1969--the activist years I mentioned--and put it together with the Berger Court from 1969 to 1986, I think there is a lot more that those courts have in common than they have separately.  I would say that was one chapter in the Supreme Court's judicial history.

Considering the record of the Berger Court in the 1970's and 1980's, in the first place it was not a Nixon Court.  Except in criminal justice, they really rebuffed the administration's positions on a number of major issues like empowerment of funds, including the United States vs. Nixon.  Remember the Watergate stakes case where the court unanimously held that Nixon had to turn over the tapes, which in turn led to his stepping down as President?  Who signed off on that opinion?  Warren Berger, Nixon's appointee as Chief Justice.  I knew that gratitude was not a commodity of long supply in Washington, but that seems ungrateful.  Can you imagine some aid comes to the Oval Office with this opinion and says, "Chief, you aren't going to like this." 

Not a Nixon court or an anti-Warren Court.  The monuments--those major decisions I mentioned that the Warren Court had to down, still securely in place under the Berger Court period.  The judicial activism was what it was all about.  I am never quite sure how to define judicial activism.  I suspect it really means that the court has decided a case in some way that you do not like and, therefore, the judge must have been an activist since he could not have gotten it right otherwise. 

One of the ways of defining activism is to think about the text of the Constitution and find the court discovering rights that are not there in the text--they have to go beyond the text.  Warren Court did that, for example, in the Griswold vs. Connecticut Case.  The Berger Court did it too.  Surely the paradigm example of modern court activism would be Roe vs. Wade--the abortion decision.  To get to that conclusion, the court had to first find that the due process clause implies the right of privacy, and that the right of privacy includes the women's right to make and effectuate the abortion decision.  It is not there in the text, but you have to find your way to that.  That is a Berger Court decision and not a Warren court decision.

I cannot think of any court in American history that has found more work for judges to do.  I can think of a number of areas that even the Warren Court did not go into but the Berger Court charged right into.  I mentioned abortion, now capital punishment.  The Warren Court never took up the death penalty.  It was the Berger Court that struck that down.  Commercial speech under the first amendment, prison administration, school busing--it is a long list of issues which first came on the court's docket under the Berger Court.

I mentioned all those to give you some sense of how conservative critics in the court must have felt.  Here they thought that they were going to change things.  They elected Nixon and he was going to turn things around.  Now they are getting more of the same--more and better and bigger.  What happened?

At this point we pass another watershed in American political history and that is the Reagan election of 1980.  I think most of us in the room would agree that that really was a seat change in American politics.  The court seemed somehow, because of Vietnam, Watergate, student riots or whatever the reasons, less trustful of federal or national power to solve problems.  They were in a more conservative mood, so Reagan came into the White House. 

In terms of the Supreme Court, the difference that makes is this--the White House has always been political in making nominations to the court.  We understand that democrats typically pick democrats and republicans typically pick republicans, but the old fashion politics was Harry Truman picking justices like Menton and Burton--two justices I suspect you do not remember.  These were the kind of folks that you would like to play poker with.  So, on the Supreme Court they went.  Jack Kennedy picking Justice White--I don't think Jack Kennedy cared what Justice White's judicial philosophy was when he picked him.  I doubt he asked.  He knew he was an All-American Heisman Trophy winner--the kind of guy you like to toss the football around with in Hyannisport.  Therefore, why not put him on the Supreme Court?  So, up he went.  That was the old politics. 

What changed after Reagan's election was that politics became ideology.  The White House had never been so careful in sifting the potential voting pattern.  That brought on a much heightened, more partisan atmosphere between the White House, on the one hand, and the Senate on the other. 

The first Reagan nomination did not really prove my point because Sandra Day O'Connor, the first woman on the Supreme Court, was Reagan's first nominee.  I think what Reagan was about there was essentially gender.  He wanted to be the president remembered for putting the first woman on the court.  But from that point onward, the nominations became more ideological.  You had, in 1986, William Renquest became Chief Justice and Nino Scalia filled in the vacancy in the court.  The right wing of the court was emboldened by that move.

In 1987 you all will remember the Robert Bork hearings.  McNeal Oleary asked me if I would go to Washington to cover the Bork hearings--the gavel to gavel commentary.  Whenever the committee was not talking, I was supposed to be filler.  I accepted this with a fairly heavy heart because I did not want to sit there and listen to these Senators drone on and ask all these boring questions.  I had no idea how electric it was going to be.  I mean, there was nothing on General Hospital like it, right?  This was really drama.  It was like one of those medieval morality plays where good and evil would be warring on the steps of some cathedral.

Reagan then put Anthony Kennedy on the court in that seat.  So there you have the Reagan appointees.  Then the first President Bush put two more justices on the court.  We had another famously controversial nomination--Clarence Thomas.  And then there was the so-called "stealth candidate"--David Souter.  Remember when he was nominated, no one knew anything about Souter.  I didn't.  Finally, after that, you get two Clinton nominees--Ruth Bater-Ginsburg and Steve Bryar (?).  You have not been keeping count, but if you run through all those nominees to the court, it brings us up to the court that we now have.  What is striking is that we now have justices, none of whom served on the Warren Court.  There is no one left.  In fact, the last survivor of the Warren Court was Justice White who, in retirement, died just a few days ago.  One of the four Nixon justices is left--Renquest. 

Of the nine justices on the present court, only two were put there by democrats, seven by republicans.  There has been a complete turnover, not only in the faces but also in the origins of the justices--where they come from on the court. 

If my Jeffersonian thesis has any bite to it, then you can expect some real changes to have taken place.  It has been roughly 30 years since my Warren Court benchmark.  We now have a complete new cast of characters.  What do we find out?

Let me just summarize this to give you some impressions.  First, federalism is back.  If you have ever read the Constitution, you know the 10^th Amendment is the one that says all the powers not delegated to the federal government are reserved to the states. 

From the 1930's onward, the 10^th Amendment was a cipher, an empty shell.  No one paid any attention to it, least of all the Supreme Court.  The Renquest Court has rediscovered the 10^th Amendment.  For years I taught my law students that they would never live to see the day that the Supreme Court would strike down an act of Congress on the grounds that Congress had exceeded its power to regulate commerce.  That was an article of faith.

Well, along came a case in 1995 where Congress had passed a federal law making it a federal crime to take guns into local school zones like here in Charlottesville.  The Supreme Court held that Congress did not have that power, that it exceeded its commerce clause power.  It was a federalism case.

So all those bold comments that I had been making to my students were worthless.  Of course the court did not have the good grace to wait until my semester was over.  I had to go in the next day and say to my students, "remember what I told you the other day?  Well, I lied to you.  They did what I told you they would never do." 

Also, there is a line of cases--I will not go into them--but the court has rediscovered the 11^th Amendment.  Basically it is an amendment about state sovereignty.  The court has applied that amendment in a number of cases to prevent lawsuits being brought for damages under disabilities acts, age discrimination acts and fair employment labor acts and a number of major statutes that now find the court interposing state sovereignty. 

This is a new age.  The Warren Court did not trust the states.  It had problems with the states and just trusted Congress and the federal government.  Now it is inverted.  Federalism is back.

Secondly, race.  I talked about how the Warren Court was a court of civil rights.  The issue today is not discrimination of the 1960's, it is Affirmative Action.  Up until the 1990's, the court had been fairly deferential, especially to Congress, when it had Affirmative Action programs.  The Renquest Court has tightened its screws on this one.  They have held that whether it is the local government, the state government, or Congress, that if there is any program that distinguishes, grants benefits or burdens based on race then the standard to be applied is what the court calls "strict scrutiny."  It is a tough standard.  It means that the program is very difficult to defend and, therefore, is typically overturned.  That is a change from the Warren Court years.

Thirdly, unenumerated rights.  I mentioned how the Warren, and indeed the Berger, Courts were willing to go beyond the text of the Constitution.  This court is not too fond of that.  The case I would give you is a case from a couple of years ago, involving a claim that a terminally ill patient in great pain would have the right to ask the assistance of a doctor to terminate one's life.  In effect, assisted suicide, if you like.  This was made as a Constitutional argument.  I do not know what the Warren Court would have said.  It might have accepted the idea.  The claim got not one vote on the Renquest Court.  The court basically agreed, despite the number of opinions the justices had for different reasons, to turn the problem back to the states and not to articulate a new Constitutional right. 

Fourthly, not only has the Renquest Court not gone to "new turf," it is beginning to reexamine some existing Constitutional doctrine.  For example, church and state--a very Jeffersonian kind of thing.  As you know, it was Thomas Jefferson who coined the phrase, "wall of separation between church and state."  You could take money off your neighbors by asking them where they would find that language.  They would probably say the Bill of Rights or the First Amendment.  Collect your bet because at that point they are wrong.  It was just in a letter that Thomas Jefferson wrote.  The wall of separation has been rather strictly maintained by the modern court.  That is beginning to change in the hands of the Renquest Court.  There is not quite a majority, but teetering on the edge of a majority, but enough justices think that the court has been too strict and the wall ought to be dismantled or at least lowered.

I do not want to suggest that the court is sort of changing everything.  There are some areas--I think it is an interesting phenomenon--in which I think the center has been held.  These are two areas in particular--abortion and sex discrimination.  Many people thought that, with the changing face of the court, Roe vs. Wade would be overturned.  In the 1990's, the Supreme Court had a test case and some people thought that maybe this was the case in which Roe vs. Wade would be overturned.  A plurality came together in this case, not to redefine all of Roe, but the core principle was maintained.  That was that the woman still has a right to decide on an abortion, but the court gave the states a little more breathing room in regulating how that right might be effectuated.

This is my last point about the Renquest Court--how strikingly self-confident this court is.  There has never been a court in American history that is so confident that it is right.