Commentary Magazine

Liberals and the Supreme Court:
Making Peace with the "Nine Old Men"

One consistent thread in the pattern of American liberalism since the founding of the republic has been—at least until recently—hostility to the Supreme Court. In 1810, Jeffersonians protested against the Justices for being “sappers and miners” of republican government. Good Jacksonians in the 1830’s held a similar view. In the 1850’s, abolitionists and anti-slavery elements denounced the Supreme Court’s Dred Scott decision for entering the Constitution into a “covenant with hell.” In the 1896 presidential election, Democrats and Populists alike campaigned against the Supreme Court’s pro-property and anti-labor rulings, and applauded their jointly nominated candidate, William Jennings Bryan, as he thundered against “government by injunction” as well as the “cross of gold.” In 1912, the reformer found his voice in Theodore Roosevelt who, in the name of “direct democracy,” called for a system of popular referenda to allow the overturning of Court decisions.

And in the 1930’s few things seemed so clear to the liberal as the fact that five elderly “anachronisms” were threatening the entire New Deal program. As one liberal spokesman wrote during Franklin Roosevelt’s “Court-packing” fight in 1937, “Democracy must curb the Supreme Court or the Supreme Court, instrument of our great concentrations of economic power, will destroy democracy.” “Judicial supremacy,” the same liberal declared, “is the most important problem of our time” (Isidor Feinstein, The Court Disposes).

But in 1956 the liberal’s attitude toward the Supreme Court is more difficult to summarize. “It seems to me,” an unprejudiced observer might say, “that the cry against ‘judicial supremacy’ has all but tried away, although I understand that the Court has neither lost nor surrendered its power. Instead of deploring that power, liberals seem to be debating with one another over the most appropriate somersaults that a troupe of captive judicial lions should perform—although I am not entirely sure whether it is only the lions who have been tamed. I’d like to hear someone explain what liberalism sees as the proper role for the Supreme Court—and not so much by citing what the Justices should not, as what they should, do.” Two recent books, Professor Fred Rodell’s Nine Men: A Political History of the Supreme Court from 1790 to 1955 and the late Justice Robert H. Jackson’s The Supreme Court in the American System of Government might be offered as attempts to satisfy this demand.



American liberalism has leveled two classic charges against the Supreme Court. First, the Court “legalized” politics, imprisoning social and political issues in the Procrustean bed of the law. And second, the Court, an unrepresentative institution without responsibility to the popular will, exercised a veto over the decisions of Congress, the President, and the state governments.

Some liberals approached the problem as one of structural reform, suggesting that the Court’s power to overturn acts of Federal or state legislatures should be taken from it, or that Congress should be allowed to re-pass laws by a two-thirds vote, or that Supreme Court Justices should be elected for fixed terms. Other liberals saw the difficulty as one of Constitutional ideology; the solution was to substitute a liberal construction of the Constitution for the property-oriented and anti-libertarian one of the Court of that time, and to see to it that judges were appointed to the bench who would support the liberal interpretation.

In his “Court-packing” fight in 1937, Franklin Roosevelt struck out vigorously in the direction of structural reform. He urged that the President be authorized to appoint a new Justice whenever an incumbent Justice, having reached the age of seventy when he might retire at full salary, chose not to leave the Court. It was only because the Supreme Court accepted “ideological” in place of “structural” reform that this proposal was defeated: in 1937, Mr. Justice Roberts made his famous “switch in time which saved nine,” joining the four inveterate dissenters of that day to create a new majority which voted to uphold first the National Labor Relations Act, and then a whole series of “controversial” New Deal measures. By 1938, structural reform of the Court was a dead issue politically and, for the most part, intellectually among liberals. By 1941, six Roosevelt Justices were on the Court; the Constitutional re-interpretation wrung from the reluctant hands of the “nine old men” was now safe in the loving grasp of a New Deal majority.

At this point, having overturned the judicial philosophies of the McReynolds’s and the Van Devanters, liberals found themselves faced with the problem of moving from negative agreement toward elaboration of a Constitutional ideology of their own. The basic concept they arrived at, which partly rejected judicial supremacy and partly retained it, was the New Deal distinction between the Constitutional values of “human rights” and of “property rights,” or—as sometimes put—between “civil liberties” or “individual freedom,” on the one hand, and “economic arrangements” or “social legislation,” on the other.



One of the most persuasive statements of this position came in 1941 from a prominent New Deal lawyer who had battled the Supreme Court as General Counsel for the Internal Revenue Bureau, as Assistant Attorney General, as Solicitor General, and finally as Attorney General of the United States. In The Struggle for Judicial Supremacy (Knopf, 1941), Robert H. Jackson recounted the historical development of Supreme Court power, the Constitutional conflict provoked by the “Old Deal” Justices, and the recent victory of the reform forces. In one of the last chapters of his book, on the “New Position” of the Supreme Court (to which he was appointed shortly afterward), Jackson set forth the distinction between human rights and property rights. The Supreme Court, he wrote, had a special duty to protect the rights guaranteed to individuals in the Constitution; propertied groups could defend their own rights, he felt, but “whatever of value [individual] rights have is because of a Court with power to enforce them.” Jackson applauded the recent rulings of the Court (1938-1940) by which such measures as “handbill ordinances, anti-picketing laws, or bans on public meetings” had been declared unconstitutional. Here, he said, government officials had attempted to suppress “the free dissemination of ideas, upon which the system of responsible democratic government rests.”

These actions should not be equated with the vetoes which earlier Court majorities had placed upon “social legislation.” The Court’s presumption of the binding validity of legislative acts in “social legislation” cases, Jackson explained, was to be “frankly reversed” when legislation was found to interfere with “free speech and free assembly.”

Legislation whose basis in economic wisdom is uncertain can be redressed by the processes of the ballot box or the pressures of opinion. But when the channels of opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point.

By intervening in such situations, Jackson concluded, the Court “restores the processes of democratic government; it does not disrupt them.”

In conformity with the “New Deal position,” the Supreme Court during the war years deferred to the legislative will in cases involving “economics,” but, with only a few exceptions, measured that will against a higher standard in “civil liberties” cases (which mostly involved state governments in this period).

But in the postwar years this “New Deal position” was weakened and finally forced into the minority. Partly, this was the result of personnel changes: two of the staunchest “libertarian activists,” Murphy and Rutledge, tried, and Fair Deal Justices were appointed who did not adhere to the notion of judicial supremacy in civil liberties matters. In other part, it was the result of the greater frequency of a different kind of civil liberties case: now it was no longer “nonconformists” or union pickets who were being prosecuted, but people charged with subversion in the cause of a cold war opponent. Faced by this sort of case, even some of the New Deal Justices began on occasion to “defect” from the New Deal position. By 1950, that position was being defended in principle by Justices Black and Douglas alone, although they would be joined in particular cases by the other New Deal survivors, Frankfurter, Reed, and Jackson, when the Court had before it governmental limitations of civil liberty which seemed particularly oppressive.



Professor Rodell, of Yale Law School, a liberal rationalist and majoritarian par excellence, offers a book in support of Black and Douglas and in defense of the New Deal position. In the first chapter of Nine Men he attacks the prevalent “myths” and “falderal” about the Supreme Court, rejecting the ideas of judicial impartiality and judicial restraint with the argument that the Supreme Court is by nature “powerful, irresponsible, human.” In the following chapters, he narrates the history of the Court from the beginnings of judicial review under John Marshall through the days of reactionary judicial supremacy following the Civil War and extending down to the 1930’s; through the defeat of the Old Guard and the honeymoon years of the New Deal majority, down to the development of “discordance” among the New Deal appointees; the transition to a Fair Deal majority; and, finally, to the first years of the “Warren Court.”

When Professor Rodell comes to consider what the role of the Supreme Court should be today—after making it clear that he is still far from reconciled to the Supreme Court at all—he reiterates the New Deal distinction between “money matters” and “civil liberties.” “The defeat of the democratic will,” he says, is justifiable only if it results in the protection of civil liberties.

In short, if there is any place in a near-democracy for the proper use of ultimate political power by an autocratic group like the nine Justices, that place is in protecting the few against the legalized tyrannies, major or minor, of the many.

This position is supported by the author’s basic premises about the nature of judicial review. The Supreme Court, he feels, does not operate as an institutional entity, nor are there codes of Constitutional doctrine which really control its members. There are only nine individuals, each with certain political inclinations, and each with the opportunity to use his power to further those inclinations. To protect civil liberties from being infringed by government, and to leave unmolested government measures affecting money matters, is to use this power for liberal ends. This is no less justifiable than the old conservative solicitude for property rights and relative disregard of civil liberties.

In his Foreword, Professor Rodell writes: “Better a plain-speaking conservative than a weak and weaseling liberal.” In accordance with this sentiment, he treats that “great Chief Justice,” John Marshall, with especial favor, applauding his bold use of the judicial power to advance his conservative ideas. Marshall’s method, he affirms, can be criticized only in the light of “the mincing and squeamish view of a ‘proper’ judicial attitude that prevails in these milk-toast times.”

The true villain of Professor Rodell’s book emerges as the “nice-nelly notion of judicial self-restraint.” The ultimate refutation of this notion lies, for the author, in the fact that he does not see it even as a possible alternative, but only a “silly, circular self-deception.”

So long as the passivists, the judicial-self-denial boys, the alleged advocates of non-interference in legislative or executive decisions, refuse to go so far as to say that the Court has no power to interfere, refuse to urge abdication by the Justices of the role that Marshall won for them, the Court will continue to interfere, and continue to govern, merely by the imminent omnipresence of that power.

The real choice, then, is simply one between a liberal and a conservative use of judicial power. The fact of that power itself remains.



It Would be hard to find a book that, though professing the same regard for civil liberties and majority rule, presents a view so contrary to Professor Rodell’s as Robert Jackson’s posthumous volume. Published after the author’s fatal heart attack in October of 1954, The Supreme Court in the American System of Government is composed of the three Godkin Lectures he was to deliver at Harvard. What it represents is a modification of the New Deal formula of judicial review by a man who came to feel that the terms “human rights” and “property rights” did not provide a sound working principle for the Court.

Long before Jackson wrote the Godkin Lectures, his change of view had become apparent. As we saw in his earlier book, and as his early opinions as a Justice confirmed, Jackson had been a leading exponent of the New Deal position. When Justice Felix Frankfurter challenged the principle and urged that the Supreme Court exercise deference to legislative will in human rights as well as property rights cases, Jackson had objected vigorously. In the famous Flag Salute cases of 1943, for example, Justice Frankfurter had argued that the state should be permitted to compel salutes from school children if the state thought it necessary to instill patriotism; Jackson wrote the majority opinion rejecting the idea of across-the-board self-restraint. The “very purpose” of the Bill of Rights, Jackson said, was to withdraw certain subjects from the reach of majorities and to establish them as rights to be preserved by the courts.

Beginning about 1946, however, Jackson began to feel increasingly uncomfortable in the New Deal position. In his speeches and opinions he began to challenge the idea of a constitutional difference between human and property rights for purposes of judicial review, or of “preferred” civil liberties which should receive special treatment. Jackson did not “demote” civil liberties to the same level as money matters, nor did he accept the non-intervention approach of Frankfurter. During the late 1940’s and early 1950’s, he adopted what might be called a line of “pragmatic selectivity” in civil liberties cases. Where he felt that agencies of the majority will had gone too far in limiting the citizen’s freedom, as in the Taft-Hartley requirement that union leaders swear that they did not believe in forcible overthrow of the government, he would vote to declare such legislation unconstitutional; he did the same in cases involving fair procedure by the government, particularly in police search and seizure cases. Where he felt that government limitations on individual freedom represented a reasonable choice of policy between conflicting civil liberties, or a reasonable adjustment of the competing demands of liberty and order, as with the regulation of doorbell evangelism or the Smith Act, Jackson voted to uphold this kind of legislation as Constitutional.

Having developed this selective inter-ventionism in the years since 1946 (one can find earlier foreshadowings of it), Jackson’s Godkin Lectures became, in part at least, a defense of his new position and an attack upon the Black-Douglas philosophy.

A cult of libertarian judicial activists now assails the Court almost as bitterly for renouncing power as the earlier “liberals” once did for assuming too much power . . . I may be biased against this attitude because it is so contrary to the doctrines of the critics of the Court, of whom I was one, at the time of the Roosevelt proposal to reorganize the judiciary. But it seems to me a doctrine wholly incompatible with faith in democracy, and in so far as it encourages a belief that the judges may be left to correct the result of public indifference to issues of liberty in choosing Presidents, Senators, and Representatives it is a vicious teaching.



Jackson’s own view of the proper role for the Supreme Court is presented in a chapter of the present book called “The Supreme Court as a Political Institution.” (Two other chapters deal with the Court as a “Unit of Government” and as a “Law Court.”) Here he argues that the Court’s role is essentially that of a preserver of balances: “In a society in which rapid changes tend to upset all equilibrium, the Court, without exceeding its own limited powers, must strive to maintain the great system of balances upon which our free government is based.”

First among the four “chief” balances is that between President and Congress; Jackson holds that the Court is really unable to arbitrate the power relation between these two branches of the national government. The second “chief balance is that between the nation and the states; here he deplores the Supreme Court’s tendency to favor the national power and its lack of sufficient awareness of the other values, notably that of federalism, which may be involved. He gives two examples. One is the Supreme Court’s tendency to set aside state court procedure in criminal law—which he feels to be an unjustified substitution of the Justices’s own ideas of decency for those of the state judges. The other is the use of old civil rights statutes to justify the Department of Justice’s supervision of state police, which ignored the dangers of a national police force with political power. The third balance to be kept was that between state and state; here Jackson discusses the Court’s difficulty in finding a body of law to apply to controversies between different states.

But “the most delicate, difficult and shifting of all balances” is that between government and the individual. Here Jackson’s concern with judicial rather than political ideology is shown at its clearest. “Liberty,” he writes, “is not the mere absence of restraint, it is not a spontaneous product of majority rule, it is not achieved merely by lifting underprivileged classes to power, nor is it the inevitable by-product of technological expansion. It is achieved only by a rule of law.”

In this context, Jackson feels that the real issue in cases involving individual liberty—but rarely faced in the Supreme Court’s opinions—“simmers down to one of the extent to which majority rule will be set aside.” Declaring a law unconstitutional “is a restraint upon the power of the majority to govern.” Refusing to limit the majority at all “leaves the individual in the minority unprotected.” The decision of the “Constitution-makers” on this dilemma was for “limited majority rule” with the Supreme Court as the instrument for the application of limits. But the Court must understand, while it protects the minority, that if it goes too far in limiting the will of the majority it will meet, as it had in the Roosevelt period, “a drive against its power or its personnel.”

“My philosophy,” Jackson writes, in drawing his discussion to a close, “has been and continues to be that [the Court] . . . cannot and should not try to seize the initiative in shaping the policy of the law, either by constitutional interpretation or by statutory construction.” Instead, the Court should practice selective intervention on behalf of minority rights and try to keep the balance between the equally important values of liberty and authority. In doing so, the Court can be guided, and comforted, by the fact that “the attitude of a society and of its organized political forces, rather than its legal machinery, is the controlling force in the character of free institutions.”

Rodell and Jackson have served in this discussion to represent the two main theories of judicial review held by American liberals today. Actually, both authors exhibit special characteristics which somewhat distort the liberal position for which they are cited. Professor Rodell has a penchant for breezy overstatement and for personalization of judicial review which is not essential to libertarian activism. A more representative statement of that position can be found in the writings of Professor John P. Frank, for example his essay “Review and Basic Liberties” in Edmond Cahn’s collection, Supreme Court and Supreme Law (Indiana University Press, 1954). And the over-all drift toward conservatism of Robert Jackson during his later years, as well as the unpredictable nature of his opinions, gave his championship of the principle of selective intervention a distinctly idiosyncratic cast. A more typical spokesman would be Professor Paul Freund, of Harvard Law School, in his book On Understanding the Supreme Court (Little, Brown, 1949), or Professor C. Herman Pritchett of the University of Chicago’s department of government, in Civil Liberties and the Vinson Court (University of Chicago Press, 1954).

There was a third liberal position during the first years of the New Deal Court, that of general self-restraint championed by Justice Frankfurter and defended by liberal spokesmen such as Professor Henry Steele Commager of Columbia University in his book Majority Rule and Minority Rights (Oxford University Press, 1943). This conception, with its belief that institutions expressing the majority will can learn best by being upheld by the Supreme Court even in their excesses, has all but faded from the scene. The cold war pressures against civil freedoms and the heavy-handed behavior of many of the agencies of majority rule have caused most of the supporters of the self-restraint position to edge quietly over into the camp of selective intervention, as the votes of Justice Frankfurter in recent years would suggest.



The significant thing about these contemporary liberal attitudes toward the Supreme Court, for all their differences, is the extent to which they agree in now looking benignly on the institution of judicial review, a re-orientation illustrated by Dean Eugene V. Rostow’s argument in the Harvard Law Review of 1952 for “The Democratic Character of Judicial Review.” Viewed as a whole, American liberals have undergone a remarkable change of attitude with respect to the Supreme Court. Two basic reasons help to explain this development.

First, the liberal no longer worries that judicial review will favor “property rights” over “human rights.” With the growth of labor’s economic and political power, the liberal feels sure that the Court will remain “neutral” in labor-management issues, or if a particular Court majority should take a reactionary line, labor, with its liberal allies, would be able to compel it to reverse itself, as in 1937. He feels the same confidence that the progressive social legislation of the New Deal-Fair Deal era will not be overturned, largely because the nation is in a period of consolidation, not innovation. With even the Republican administration accepting basic social legislation, liberals do not expect the Court suddenly to turn around and find the TVA or social security laws unconstitutional. In short, the liberal, like the banker of the 1890’s, considers the Supreme Court “safe.”

The second reason for the liberal’s present satisfaction with the Supreme Court lies in the fact that the defense of civil liberties and civil rights is one of his paramount concerns today—and the Court can be a very useful instrument for protecting them. To be sure, free speech and desegregation were not unimportant to the liberal community in 1920 or 1937, but such issues were not so immediate and primary then as they are now. In the area of civil liberties, for example, most liberals look to the Supreme Court to defend at least a minimum of free expression and fair procedure, even if it means some judicial “meddling” with the Federal Executive loyalty program, state sedition laws, or Congress’s Communist Control Act of 1954.

On the civil rights side, liberals gave overwhelming approval to the recent rulings against segregation, and they expect the Court to continue its policy just as fast as prudence allows. If the liberal were still opposed to judicial supremacy as a matter of principle, he would find no clearer cause for protest than in the decisions in the segregation cases. Considered dispassionately, the rulings were a frank use of the judicial power to strike down the “majority will” laws of the Southern states, and without the slightest “majority will” sanction from Congress. The fact that the decisions served a noble and just cause, that desegregation was long overdue, and that the Supreme Court disclaimed doing anything more than correcting an earlier Court’s misreading of a Constitutional amendment are true, but it is also true that the use of the judicial power here cannot be distinguished from its use on behalf of property rights by the Fields and Van Devanters. Another fact revealed by liberalism’s reaction to the segregation cases is that, while the “selective-interventionists” rule in the civil liberties area, in the civil rights area the “libertarian activists” reign supreme.



By and large, then, American liberalism has made its peace with the Supreme Court. Today it is the Eastlands and the Talmadges who attack judicial supremacy as the “most important problem of our times”; it is the conservatives and businessmen who are unhappy with the Court’s rulings upholding national regulatory power under the commerce and tax clauses; and it is Senator McCarthy who protests at Supreme Court interference with the powers of Congress or the states. Liberals in the 1930’s ardently debunked the myth of the leonine, dispassionate Justices, but today they are on the side of the lions.


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