The Law Explosion and Contemporary Legal Culture

Chief Justice Warren Burger, appointed by President Nixon in 1969, complained bitterly in 1982 that the nation's legal system had become burdened by a law "explosion during this generation." Burger claimed that "[r]emedies for personal wrongs that once were considered the responsibility of institutions other than the courts are now boldly asserted as legal 'entitlements'.""The courts," he concluded, "have been expected to fill the void created by the decline of church, family, and neighborhood unit."⁵³ Burger was correct: there were more lawyers, more lawsuits, a vastly expanding regulatory and welfare state, and a pattern of much private law taking on a public character. But did these events amount to a profound disruption that unsettled social relations, added to the costs of doing business, and promoted social contentiousness? Moreover, proponents of the law explosion theory usually failed to include the dramatic upsurge in police and corrections as being in some way bad. When they did take notice, they invariably suggested that the criminal justice system was too lax and too sympathetic to criminals. They complained that there was not enough law. To some extent, the law explosion was a lament by a generation unsettled by the events of the 1960s for a quieter and less perplexing time.

When placed in historical perspective, the major features of the legal system seemed remarkably unchanged and wholly connected to trends extending back at least to the Progressive era. The system remained genuinely federal, characterized by diversity in the substantive law among different jurisdictions and, even though cooperative federalism tilted toward greater national control, state and local lawmakers and regulators retained significant autonomy. Legislation and regulation diminished the breadth of the common law, but it remained, as it had for centuries, a vital component of the legal system.

The quantitative and qualitative changes that swept through the legal system after World War II are best understood as evidence of legal culture resonating, as it had for the previous two centuries, to changes in the underlying general culture. Under the influence of the dominant ideology of liberal legalism, Americans expected more and came to rely more on their legal system. As Lawrence M. Friedman had argued, there emerged in the mid-1960s a general "expectation of justice" and an accompanying "general expectation of recompense" for wrongs. ⁵⁴ Americans got more law because they wanted more, and the Supreme Court promoted this heightened sense of rights consciousness through a revolution in public law, a revolution in which, ironically, Chief Justice Burger participated.

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16
The Imperial Judiciary and Contemporary Social Change

The Changing Public Law Agenda and the Imperial Judiciary

The Supreme Court and Its Business

The transformation of the general culture produced new demands on public as well as private law. The Supreme Court, which had long since established its position as the final arbiter of the Constitution, both reflected and contributed to the heightened sense of rights consciousness that pervaded the contemporary United States. After the constitutional revolution of 1937, the justices turned their attention from matters of economic regulation to issues of civil liberties and civil rights. The civil liberties portion of this new agenda included freedom of speech, press, and religion, and the rights of the accused; the civil rights side dealt with blacks and women. In both of these areas, special-interest groups, like the NAACP, the Sierra Club, the ACLU, and the National Organization for Women, were the agents of social change, pushing back the frontiers of constitutional law.

The composition of the Court revealed the rapidity with which changes in the general culture penetrated the legal culture. President Lyndon Johnson in 1967 appointed the first black, Thurgood Marshall ( 1967- ), and Ronald Reagan in 1981 selected the first woman, Sandra Day O'Connor ( 1981- ). In 1945 the appointment of either a black or a woman would have been inconceivable.

The Court has been a dynamic institution; in no similar period have the justices issued more concurring and dissenting opinions. Their ranks also changed over these four decades. Twenty-seven justices served on the high bench, and four of these were chief justices: Fred M. Vinson ( 1946-1954), Earl Warren ( 1954-1969), Warren Burger ( 1969-1987), and William H. Rehnquist ( 1987- ). Of these, Warren was the

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dominant force because he was a leader who left a lasting stamp on the Court and the nation.

Analyzing the Court based on the tenures of chief justices is misleading. The history of the Court after World War II can be better understood as two long cycles that overlapped in the early 1970s. The first of these ran from 1946 to 1969, an era in which the appointees of Franklin D. Roosevelt, especially Hugo Black ( 1937-1971), Felix Frankfurter ( 1939-1962), and William O. Douglas ( 1939-1975), combined with three Eisenhower appointees, Chief Justice Earl Warren, John Marshall Harlan ( 1955- 1971), and William. J. Brennan ( 1956- ) to form the Court's intellectual core. The careers of Warren and Brennan revealed the difficulty that presidents often have in attempting to give the Court a particular ideological cast. They were the most forceful advocates of liberal legalism, so much so, in the case of Warren, that the conservative Eisenhower observed that his selection was "the biggest damnfool mistake I ever made." ¹ Warren presided over a far-ranging reinterpretation of black civil rights, church-state relations, voting rights, and the rights of the accused.

The second era began about the time of President Richard M. Nixon's appointment of Chief Justice Burger. Nixon campaigned against many of the Warren Court's decisions, promising to forge a conservative majority on the bench that would support law and order and "strictly construct" the Constitution. By strict construction, the president meant that the justices would read it literally and, when it was unclear, defer to the legislative branch. The Senate's Democratic majority, however, frustrated these plans, rejecting two of Nixon's nominees, G. Harold Carswell and Clement Haynesworth, because of the inadequate qualifications of the former and the membership of both in all-white private clubs. Nixon then turned to able lawyers and judges who were, with the exception of conservative William H. Rehnquist, political moderates.

The Court consolidated the work of the first era and, in some instances, such as civil rights for women and the law of libel, expanded on it. In the area of the rights of the accused, it granted police officials somewhat greater discretion and sustained the death penalty.

The Court was the featured but not the sole actor in the theater of public law. The same interest groups that litigated before it also turned to Congress for legislation and even constitutional amendments. In the 1980s, they also successfully urged many state supreme courts to supplement federal constitutional rights with an expanded interpretation of state constitutional guarantees of liberty. Throughout the postwar era, however, the Supreme Court was at the hub of controversy, with legal scholars, politicians, and even the justices clashing over its role in modern society.

Process Jurisprudence, Neutral Principles, and the Imperial Judiciary

The sociological jurisprudence of Roscoe Pound and Louis D. Brandeis gave way in the 1930s to the legal realism of Karl Llewellyn and Jerome Frank. In the 1940s, legal realism was squeezed on the private law side by the "policy science" approach of Myers McDougal and Harold Laswell and, on the public law side, by process jurisprudence. The last of these began with the critique of legal realism made by Lon Fuller, a Harvard Law School professor, in the 1930s and 1940s, and it blossomed into "a full- blown political science theory in the 19[50]s, prescribing carefully defined roles for courts, legislatures, and administrative agencies." ²

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Process jurisprudence, like "policy science," emerged from the consensual intellectual atmosphere of the Cold War era, and it was an effort to establish guidelines by which appellate judges could operate in a democratic polity. Where realists had taken an essentially fatalistic approach to unchecked judicial power and to judicial whim, exponents of process jurisprudence aimed to rein in judicial authority. Process jurisprudence stressed that there were limits to judicial power and that judges had to defer to the legislative branches. Those limits involved the ways (i.e., the processes) by which judges reached their opinions. According to this theory, judges were to follow a course of "reasoned elaboration" rooted in the best skills of being a lawyer rather than to follow the more open-ended, political compromising that characterized legislative decision making. Substance was subordinated to process, and nothing was as important as "thinking like a lawyer." ³ Process jurisprudence was not antagonistic to judicial creativity and to substantive change in the law; rather, it insisted that such activity be set in a way that would make it legitimate for judges (as judges and not legislators) to undertake to bring about meaningful change, by ensuring that they decided cases based on "impersonal and durable principles." ⁴

Professors Herbert Wechsler of Columbia University Law School and Alexander Bickel of the Yale Law School in the 1960s and 1970s carried the idea of process jurisprudence a step further, in reaction to the Warren Court's role in formulating public policy. Wechsler in 1959 published a highly influential essay, "Toward Neutral Principles of Constitutional Law," which stressed that judicial review could only contribute to the growth of democracy when it was "genuinely principled" and based "on analysis and reasons quite transcending the immediate result that it achieved." ⁵ The most significant limit, according to Wechsler, was "professional constraint"; that is, the craft techniques of the legal profession justified the substitution of the judiciary's judgment for that of electorally accountable representatives. Bickel also worked within the concept of process jurisprudence, but he concluded in The Morality of Consent ( 1975) that even neutral principles and correct processes could not ensure that the decisions of unelected justices would be legitimate. The Supreme Court could be a great moral teacher, but it could not pretend to be able to do what the popular branches of government were unwilling to do.

In the 1950s and 1960s a second line of scholarly debate emerged about the role of the judiciary in American democracy. It was also liberal, but it stressed the importance of the justices in achieving substantive results, and it might be termed substantive liberal jurisprudence. Former liberal critics of judicial power, which the regulatory and social welfare state secured from judicial scrutiny by the constitutional revolution of 1937, became proponents of judicial review as a tool to force social change. "The power of judicial review," Yale Law Professor Eugene Rostow wrote in 1953, "stands . . . as an integral feature of the living constitution, long since established as a working part of the democratic political life of the nation."⁶ Proponents of substantive liberalism argued that judicial review, while in the formal sense undemocratic, was actually a necessary instrument of democracy because it permitted justices to break down practices like racial segregation that prevented the United States from becoming a genuinely open society. Substantive liberalism meant that the justices had a responsibility to overturn practices that were clearly antithetical to the broad purposes of American life: open discourse and social egalitarianism. The process used to end racial discrimination, for example, was less important than that it be ended. In public law, substantive liberalism was the fullest expression of liberal legalism.

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The debate over process and substance also occurred within the Court. Felix Frankfurter and John Marshall Harlan were the strongest proponents of process jurisprudence. Frankfurter was a longtime adherent of liberal causes, notably Sacco and Vanzetti, but his reaction to their fate was typical of his beliefs. He supported them less from the belief that they were innocent or that they had been singled out because of their ethnic backgrounds and political ideas, and more because he believed that they had not had a fair trial and that the process had failed. As a justice, Frankfurter went out of his way to appear disinterested in liberal causes and to stress repeatedly the theme of judicial restraint. Reason and the professional skills of a lawyer should guide the outcome of the case not the wishes of the judge. Justice Harlan agreed with Frankfurter, arguing that the Court should not attempt to do what legislatures were unwilling to do.

Earl Warren, however, had a substantially different conception of the judicial role. He believed that the Court had a positive responsibility to intervene where social injustice was evident. Warren was much more skeptical than Frankfurter about the efficacy of the political process, believing that it too often was insensitive to the values for which the United States should stand. Moreover, Warren found that the construction of legislative authority was such that it would block meaningful change. Without the prodding of the Court, why then would an all-white legislature ever adopt a position to do away with racial segregation? Why would malapportioned state legislatures, with rural areas far outweighing much more heavily populated urban areas, ever agree to change the existing system upon which rural domination rested? When asked to name the most important decision of his tenure, Warren chose Baker v. Carr ( 1962), a case in which the Court mandated the apportionment of legislative districts based on the principle of "one man, one vote." ⁷ Warren and Black, in short, believed that the Court should promote humanitarian values.

The concept of substantive liberalism evoked a growing chorus of complaints that the justices were substituting their values for those of the framers. In the 1970s and 1980s, the debate about judicial review and judicial power shifted increasingly toward the issue of original intent--that is, the role that the intentions of the framers of the Constitution (and the various amendments) should have in judicial interpretation. Conservative legal scholars, judges, and politicians argued that the Court had become a. lawmaking body. Raoul Berger of Harvard University Law School condemned the substantive liberalism of the Warren Court and concluded that the justices had formed themselves into an "imperial judiciary," substituting their vision of the good society for that of the framers. ⁸ President Ronald Reagan and Attorney General Edwin Meese echoed this theme in the 1980s. Meese urged that the Court return to a jurisprudence of "original intention" and that the justices refuse to decide matters that properly belonged to the states and the legislative branches. ⁹ Ronald Reagan underscored the depth of his commitment in 1987 by appointing William Rehnquist (the most outspoken proponent of the idea of original intent) as chief justice and Antonio Scalia (a federal appeals court judge, also noted for his strict constructionist views) as an associate justice. After a fierce battle in the judiciary committee, the full Senate rejected the nomination of Robert Bork, a federal appeals court judge and former Yale Law School professor, to the high court. Liberal and moderate senators concluded, somewhat incorrectly, that Bork mouthed the doctrine of original intent as a means of legitimating his conservative goals.

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Civil Liberties

Ordered Liberty and Preferred Positions

The modern reconsideration of civil liberties and civil rights began in the 1930s. At the same time that the Court was jettisoning its concern with economic rights and government regulation, it announced clearly its intentions to take on new issues involving matters of human freedom.

The Court moved cautiously to "nationalize" the Bill of Rights through its selective incorporation into the Fourteenth Amendment. In Palko v. Connecticut ( 1937), the justices considered a claim that the Fourteenth Amendment's due-process clause incorporated the Fifth Amendment's protection against double jeopardy. Justice Benjamin N. Cardozo rejected the argument in this instance, but he did find that there were some rights that were so "fundamental" that liberty and justice could not exist if they were sacrificed. Cardozo made clear that First Amendment rights were "the indispensable condition" of nearly every other form of freedom, and that they had been fully incorporated. But other rights, notably jury trials, indictments, immunity against compulsory self-incrimination, and double jeopardy "might be lost, and justice still be done." Incorporation of the different parts of the Bill of Rights, therefore, depended on how fundamental they were to a "scheme of ordered liberty." ¹⁰ Selective incorporation meant that the justices would have broad authority to pick and choose in the future, but that in doing so they would not interfere with the state systems of criminal justice. The Court reiterated this position in a five-to-four decision in Adamson v. California ( 1948), another criminal justice case involving the Fifth Amendment, leaving the process of incorporation to go on selectively.

The justices also signaled their intention to switch the agenda to matters of civil liberties and civil rights in United States v. Carolene Products Co., a case decided a year after Palko. Justice Harlan Fiske Stone initiated the famous preferred-positions doctrine in a footnote to an otherwise unremarkable case. Stone indicated that in the future the Court was going to give special attention to noneconomic freedom, so much so that it was willing to impose a double standard of review. On the matter of state economic policy, the Court would defer to the legislature; but on issues involving civil liberties and civil rights, Stone announced that the justices would apply special scrutiny to legislative actions and give a preferred position to liberties and rights. Legislative efforts to curb liberties and rights would have to be more securely founded than would measures involving the economy. The preferred-positions doctrine, even buried as it was in a footnote, was an invitation to litigants to bring civil liberties and civil rights appeals to the Court. Judicial review, Stone concluded, was necessary because of "prejudice against discrete and insular minorities, which tends seriously to curtail the operation of those political processes ordinarily to be relied on to protect minorities, and which may call for a correspondingly more searing judicial inquiry. ¹¹ The Court was setting itself up as a guardian of social minorities.

Armed with the concepts of "ordered liberty," selective incorporation, and preferred positions, the postwar Court expanded the sphere of civil liberties, although its actions were not without contradictions. When national-security issues were involved, as in the Japanese relocation cases, the Court was far more willing to defer to Congress than when security issues were not present.

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Date: 2015-01-29; view: 729