The Supreme Court Judged by a Judge

Jed Rakoff is a Senior United States District Judge. In a book review for the New York Review of Books, he summarizes the history of the Supreme Court from the 19th century to the 21st:  

Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to [the last president’s three] appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes….

Judge Rakoff then gets to the book he’s reviewing: Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment. (I’m skipping most of the long review.) Rakoff argues that Justice Frankfurter, a progressive appointed by one of our most progressive presidents, Franklin Roosevelt, was too restrained in his rulings:

Liberals were initially thrilled by Frankfurter’s elevation. But they quickly learned that his conception of a “liberal” Court was rather different from theirs. The conflict was even more noticeable within the confines of the Court, where Frankfurter’s belief that progress best lay in limiting its review of state and federal legislation so as to let the democratic political process hold sway repeatedly clashed with the view of its newest member, William O. Douglas, that the Court’s responsibility was to protect the civil rights and civil liberties of minorities and individuals…..

One of the many virtues of [Democratic Justice] is the wealth of detailed evidence he provides for each of his assertions. His own assessment of Frankfurter’s virtues and faults is that he was prescient in seeing how the supposed lack of restraint of Warren Court jurisprudence could come back to haunt American liberals once the Court returned to its more traditional conservative stance. My view, however, is that Frankfurter got so carried away with his philosophy of restraint that he failed to recognize basic principles of checks and balances inherent in our constitutional design, and in particular the natural purpose of the Court to protect individuals and minorities against excesses in which elected officials and legislators too often engage.

Moreover, it is easy to pay lip service to a particular judicial philosophy in order to achieve any desired result. For example, the Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade, can be interpreted by its supporters as an exercise in Frankfurter-like restraint that leaves the issue of abortion to state legislatures, while its opponents can view it as the Court’s refusal to exercise its inherent responsibility to protect individual rights.

What may not be gainsaid, however, is that the Court has now returned to its historically conservative tendencies with a vengeance that can only be called reactionary. And if you put aside arguments over judicial philosophy and look at the practical results, it is worse than that.

In the last few days of its most recent term, the Court released a series of decisions that, whatever their purported rationales, made the world a more dangerous place: more dangerous for poor people of color, who can no longer effectively seek redress for certain forms of police misconduct; more dangerous for women, who in many states must now resort to backroom abortions and face imprisonment for doing so; and more dangerous for Americans generally, who can no longer hope to meaningfully curb the increase in gun violence now plaguing our nation and whose government will find it ever more difficult to alleviate the climate change that imperils our planet. It is hard to believe that Felix Frankfurter would have been comfortable with such results.