Role Reversal and the High Court

By Cass R. Sunstein
Sunday, July 10, 2005

Debates about the Supreme Court have become eerily reminiscent of those a half-century ago. Having acquired power, conservatives are showing the same high ambitions as liberals did in the court's most pivotal period.

In the 1930s liberals despised the exercise of judicial power. For over two decades, an activist Supreme Court had proved an obstacle to progressive legislation, including laws covering minimum wages, maximum hours and child labor. Much of Franklin D. Roosevelt's New Deal was in constitutional jeopardy.

Led by professor Felix Frankfurter and Attorney General Robert Jackson, liberals argued for judicial restraint. They contended the Supreme Court should not seize on ambiguous constitutional provisions to strike down legislation. They objected that the federal judiciary was engaged in politics, not law. They argued that the Constitution should not be interpreted to entrench political commitments.

In the late 1930s the Supreme Court capitulated to their arguments. Roosevelt appointed to the court Frankfurter and Jackson, apostles of restraint who now rank among the Supreme Court's giants. Roosevelt also appointed Sen. Hugo Black and professor William O. Douglas, who happily joined Frankfurter and Jackson in approving progressive legislation.

But by the late 1940s a deep fissure had developed among liberal activists and Roosevelt's most distinguished appointees. Liberals started to turn to the courts to protect civil rights and civil liberties. Frankfurter and Jackson often rejected their pleas and adhered to restraint. Black and Douglas, however, were far more sympathetic. They argued for near-absolute protection of freedom of speech -- an argument that Frankfurter and Jackson ferociously resisted. To Frankfurter's dismay, Black led the mostly successful effort to rule that the entire Bill of Rights applied to the states. Black and Douglas helped spur the court to strike down racial segregation and miscegenation laws.

By the early 1970s few liberals believed in judicial restraint. Frankfurter and Jackson seemed betrayers of the liberal cause. Black and Douglas were heroes, "movement judges" alongside Earl Warren, William Brennan and Thurgood Marshall, eager to use judicial power for liberal ends. Some people seemed to think the Constitution should be interpreted to fit the views of the Democratic Party's extreme wing -- as in the suggestion, made seriously, that the Constitution created rights to welfare, food, housing and even employment.

Conservatives started to sound like New Deal liberals. President Richard Nixon argued that the courts should back off. Attacking ambitious desegregation plans and decisions protecting criminal defendants, he insisted that the Supreme Court should respect the judgments of the elected branches. President Ronald Reagan spoke in similar terms.

Two of Reagan's appointees, Sandra Day O'Connor and Anthony Kennedy, played a role closely akin to that of Frankfurter and Jackson. They showed little enthusiasm for the liberal rulings that preceded them. But they were skeptical of using the Constitution to promote conservative goals. They were not "movement judges."

Republican appointees William Rehnquist, Antonin Scalia and Clarence Thomas have been far more ambitious. Like Black and Douglas, they have been willing stand against the elected branches of government. They want to restrict Congress's power, heighten the protection given property rights and strike down most affirmative action programs and campaign finance restrictions.

Among many conservatives, O'Connor and Kennedy are now seen as infidels. Like their liberal counterparts in the 1970s, conservative activists show no interest in judicial restraint. Some conservatives argue that the Constitution should be interpreted to invalidate key provisions of the Clean Air and Occupational Health and Safety acts, to strike down restrictions on commercial advertising and to eliminate the Federal Communications Commission in its current form. If they can appoint judges who will entrench views of the Republican Party's most extreme elements, well, so much the better.

To be sure, there are differences between the liberal shift in the mid-20th century and the more recent movement in conservative thought. Conservatives have a distinctive theory for interpreting the Constitution. They believe in the "original understanding" of the document, and they aim to recover what they sometimes call the Lost Constitution or the Constitution in Exile.

The liberal activists of the 1970s usually made no pretense to rediscovery. But it would be a neat coincidence if the original understanding of the Constitution matched the views of the GOP's extreme wing. As it happens, there is no such match. Nothing in the original understanding justifies the movement to strike down affirmative action programs, to eliminate the FCC or to protect property rights against environmental regulations that diminish the value of property.

What lessons can be drawn? People will use power when they have it -- and when a particular side controls the courts, the idea of judicial restraint will go out the window.

But history is full of surprises, and America's institutions have a way of defeating cynics. Frankfurter and Jackson, reviled by their political allies, devoted their careers to rejecting the cynical conclusion. Will they ultimately be vindicated? The jury is still out.

The writer is a professor at the University of Chicago Law School and author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," to be published in September.

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