Front Page Titles (by Subject) PHILIP B. KURLAND, Trends in the U. S. Supreme Court - New Individualist Review
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PHILIP B. KURLAND, Trends in the U. S. Supreme Court - Ralph Raico, New Individualist Review 
New Individualist Review, editor-in-chief Ralph Raico, introduction by Milton Friedman (Indianapolis: Liberty Fund, 1981).
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Trends in the U. S. Supreme Court
I INTEND TO CONFINE my observations to the constitutional aspects of the Supreme Court’s work. It is here that the Court performs its unique role as ultimate arbiter of the meaning of our fundamental law; law beyond the power of the other branches of the government to revise and, for the most part, beyond the control of the people themselves.
Looking over the past decade of the Court’s work—roughly the period between the school desegregation cases1 in 1954 and the reapportionment cases2 of 1964, one quickly discovers that the Justices have wrought more fundamental changes in the political and legal structure of the United States than during any period in our history since Mr. Chief Justice Marshall first wrote meaning into the abstractions of the Constitution’s language. To make my essential point at the outset, the problem is not primarily whether in one’s personal opinion these changes are good or bad; but whether the Supreme Court, constituted as it is by nine lawyers with life tenure and politically irresponsible, is the proper organ of government to accomplish the goals it may decide to set for this country.
THREE DOMINANT MOVEMENTS are evident in the Court’s recent work. First and foremost has been the emerging primacy of equality as a guide to constitutional decision. Perhaps an off-shoot of the Negro Revolution that the Court helped to sponsor in Brown v. Board of Education,3 the egalitarian revolution in judicial doctrine has made dominant the principles to be read into the Equal Protection clause of the Fourteenth Amendment rather than the Due Process clause, heretofore the polestar of Supreme Court action. Just as the Court read its own notions of appropriate governmental policy into its creation of substantive due process in the period that culminated in the 1930’s, so we now have a similar construction by the Court of what the Swiss have most appropriately called “substantive equal protection.” The decisions in the school segregation cases, the sit-in cases, and the reapportionment cases are merely the most prominent of a very large number of decisions pushing this egalitarian theme. Quite clearly the movement is at its inception; certainly it is nowhere near its conclusion.
Two fundamental difficulties face the Court in this effort, or would face the Court were it more conscious of its obligation to justify and explain its judgments. The first is the question whether the Equal Protection clause empowers the Court to eliminate not only the inequalities imposed by law, but the inequalities that derive from non-governmental action or inaction, the social and economic inequalities as well as the political inequalities. Until now the Court has successfully avoided confrontation of the problem either by finding governmental action where few others can discover it, as in the sit-in cases that preceded the Civil Rights Act,4 or by sweeping the problem under the rug, as in the sit-in cases decided by the Court since the Civil Rights Act.5
The second major problem presented by the new egalitarian movement is the task of adequately reconciling the competing claims of equality on the one hand with liberty and other fundamental guaranties on the other.6 Again the confrontation has not been publicly made, although the conflict was revealed in the 1963 Term in the Court’s split over its own power to command that private business concerns make their premises, goods, and services equally available to all.7 The split in the Court was all the more interesting because it separated Mr. Justice Black, heretofore the acknowledged intellectual leader of the “liberal” wing of the Court, from Justices Goldberg and Douglas, who have now assumed the role of leading the levellers. Mr. Justice Goldberg, for example, expressed himself—extracurricularly—as believing that equality and liberty were one and the same.8
This short article is not the place to document further my proposition of the Court’s new egalitarian pose. Those who are hardy may find some of the details set out in a recent article of mine in the Harvard Law Review.9 Those of you who are foolhardy can look forward to seeing them expressed at greater length in a book I hope to publish soon.
LET ME TURN THEN to the second prominent theme of current Supreme Court adjudication. This one, however important, is hardly novel. I am referring to the effective subordination, if not destruction, of the federal system. This movement is not entirely disparate from the egalitarian push, for each is a drive toward uniformity and away from diversity. Equality demands uniformity of rules. Uniformity cannot exist if there are multiple rulemakers. It follows that the objective of equality cannot be achieved except by the elimination of authorities not subordinate to the central power. It, too, is an important part of our political and social and economic movement away from diversity towards conformity.
Because of its lack of novelty there is no need to dwell on the Court’s behavior on this front. Perhaps the most amazing fact about the Court’s recent infringements on state authority is that, having taken so much power away from the states, it continues to find more to take away. But one point should perhaps be made clear. Governor Rockefeller in his 1962 Godkin lectures at Harvard said “The reports of the death of federalism, so authoritatively asserted in the nineteen-thirties, were, as we have seen, highly exaggerated.”10 But the Governor obviously had a different concept of federalism in mind than I do here. Certainly, as the Governor pointed out, state governments are bigger than ever, both in the amount of money they secure and disperse and in the number of tasks they perform; but this reflects not the continuance of federalsm but merely the growth of the role of government in modern society.
As Rector K. C. Wheare of Exeter College, Oxford, in his book on federalism, has pointed out: “What is necessary for the federal principle is not merely that the general government, like the regional governments, should operate directly upon the people, but, further, that each government should be limited to its own sphere and, within that sphere, should be independent of the other.”11 As you all know, there are today few, if any, governmental functions performed by the states that are not subject either to the direct control of the national government or to the possibility of preemption by the national government. The concept of separate sovereignties within this country is now largely a matter of history. Vestigial remains are perhaps still to be found in the fields of education and health and the administration of criminal justice, but even here state power is clearly on the wane. It is especially in the area of control of police and prosecution that the Court has, in recent years, drawn the reins tighter and tighter.
It would not be correct to leave the impression that this fundamental revision of governmental structure was brought about solely by the Court. Advances in transportation, communication, and science, which reduced the size of the world, were the primary causes. The rise of the United States as a world power was certainly a most important factor. And the essential default of the states in failing to assume the responsibilities that were theirs cannot be ignored. But the Court, too, has made and is making its contribution. It may be that federalism is no longer desirable or feasible. The question remains, who should make that judgment. Ought it, or must it, be the Court?
THIS BRINGS ME TO the third of the major trends discernible from a study of the Court’s efforts over the past ten years. I have in mind the enhancement of the judicial dominion at the expense of the power of other branches of government, national as well as state. Again it is not a novel theme. In the past, the Court’s powers have risen and declined like the business cycle; but like the recent economic prosperity, the Court’s recent dominance has been unusually long-lived and shows no signs of recession. (Automation creates no problems here.) There was, at one time, a fairly substantial area of governmental action that the Court had wisely declared off-limits for itself. The reapportionment cases seem to have dealt a fatal blow to the idea that there are certain functions of government beyond the competence of the Court to perform. There was, at one time, a notion that the Supreme Court was a court like other courts, called upon to resolve specific controversies between specified parties and not to lay down general blueprints for the reorganization of society. For Mr. Justice Brandeis, for example, if not for his successor: “If the Court were to exercise its grave function of reviewing the validity of co-ordinate branches of government, the Court must be careful to keep within its appointed bounds as a condition of judging whether others had kept within theirs.”
This calls to mind the fact that the Court in recent years has struck down so much Federal legislation as unconstitutional that it is reminiscent only of the activities of the nine old men in their frustrated attempt to dam the tide of the New Deal. Certainly it is true that the Court has engaged in this pastime of judicial review since it was invented by Mr. Chief Justice Mashall in Marbury v.Madison. Even so, striking down two statutes in a single Term is a little better than par for the course; and that is what the Court accomplished at the 1963-64 Term. In an opinion by Mr. Justice Douglas, it held that it was so unreasonable as to be unconstitutional for Congress to say that the benefits of citizenship conferred on a foreign-born person are dissipated when the citizen returns to his homeland for an indefinite period of time, perhaps never to return to this country.12 In an opinion by Mr. Justice Goldberg, Aptheker v. Secretary of State, it held that no legitimate governmental purpose could be served by denying passports to all members of the Communist Party and therefore no legitimate governmental purpose could be served by denying passports to the chairman of the Communist Party and its chief theoretician.13
IT IS ONLY FAIR TO note, however, that the Court treats its own precedents with no less disdain than it accords Congressional legislation. Indeed, a Court that considers its pronouncements to be “the law of the land” might be expected to pay more respect to its own opinions. The fact of the matter is that the number of its own cases overruled by the Court in the past decade, either openly or covertly, have accelerated at such a rate as almost to remove the hyperbole from Mr. Justice Roberts’ charge that the Court’s judgments were coming to be like railroad excursion tickets, good for this day only.
I shall not burden the reader with the details of my complaint about the technical deficiencies of the Court’s performance except to quote from an article written over seven years ago by two members of the Yale Law School faculty, in which they said:
The Court’s product has shown an increasing incidence of the sweeping dogmatic statement, of the formulation of results accompanied by little or no effort to support them in reason, in sum, of opinions that do not opine and of per curiam orders that quite frankly fail to build the bridge between the authorities they cite and the results they decree.14
I would report here only that the difficulties suggested have become exacerbated rather than resolved in the more immediate past.
The Court has not, however, acted entirely without excuse for its behavior, although there are some who think the excuse is not adequate. The essential justification is that the Court has acted, perhaps overacted, as the conscience of a nation when no other branch of our government was capable of demonstrating adequately decent behavior. Certainly there is merit in the argument when one considers the conduct of our other governmental departments in the face of the abuses that the community has rained on the Negro; the evils of McCarthyism, and the continued restrictions on freedom of thought committed by the executive and legislative branches of our national and state governments; the refusal of the states and the nation to make it possible for the voices of the disenfranchised to be heard; the continued use of police tactics that violate the most treasured rights of the human personality. The list may be substantially extended, but to no good purpose here. There can be little doubt that the other branches of government have failed in meeting some of their most fundamental obligations to provide constitutional government.
This justification may be inadequate, however, because the Court’s conduct has gone far beyond the necessity suggested by the action or inaction of the elected officials of our government. Or it may be inadequate because, as Learned Hand once told us, “a society which evades its responsibility by thrusting [it] upon the courts . . . in the end will perish.”15
THE SOLUTION OF THE problem of excessive judicial power, of what Leonard Boudin called, in the 1930’s, “Government by the Judiciary,” of what Morris Ernst damned at the same time as “The Ultimate Power,” is not to be found in the various gimmicks that have been suggested for limiting the Court’s jurisdiction or subordinating it to so silly an institution as “The Court of the Union,” any more than it was to be found in 1937 in Roosevelt’s “court-packing plan.” The answer must be found in making the judicial branch of the government politically more responsible without impinging on its independence. It should be remembered, as Sir Winston Churchill was fond of pointing out, that the success of Anglo-American democracies has depended in no small part on the independence of the judiciary.
Such an answer, if it is to be found anywhere, may possibly be found in the responsible utilization of the amending power. I would emphasize the qualification that the utilization of the amending power must be responsible. Recent efforts to push amendments through state legislatures without the knowledge of the people of the states is not what I have in mind, for there are, of course, serious dangers in an expanded use of power of constitutional amendment. The people of California have only recently provided us with some examples of silly, if not tragic, behavior in this regard. Professor Paul Freund has told us that the essential difficulties are threefold.16
The first, and I think the most important, is that “proliferating amendments would impair the sense of attachment to the old and familiar, the spirit of loyal devotion to a deeply rooted institution.” The second is that amendment may precede second thoughts that would demonstrate the undesirability of the amendment. The third is that an amendment may create more difficulties than it would solve.
In no small measure, the Founding Fathers anticipated two of these difficulties in providing for the means of constitutional amendment. The method is sufficiently cumbersome to assure that no large number of amendments could be successfully promulgated. The same lack of ease of amendment would provide more than adequate time for second thoughts to prevent unduly hasty action. The problem of the “risk of substituting new dissatisfactions for old, new uncertainties for old perplexities,” can be avoided only by dealing with proposed amendments with the care received, for example, by the proposed School Prayer Amendments in the House Judiciary Committee.
There is, however, a prerequisite to the utilization of the amending process, a prerequisite that will both justify the process and, in many instances, make it superfluous. That prerequisite is a real comprehension on the part of the electorate of the role and performance of the Supreme Court. The obligation of this understanding falls particularly on the leaders of the community, for, I think. I can say without fear of being proved wrong, that the press has failed in its obligation to educate the public about the decisions of the Court. It is also unfortunately true that the bar has failed in this regard; too few lawyers are themselves concerned with the efforts of the highest judicial tribunal in the land. Only an educated public can understand whether judicial decisions appropriately call for constitutional amendment. At the same time, an educated and aroused public may make the Court politically more responsible than it has been. It may, at times, even convince the Court itself to reconsider constitutional judgments that it has promulgated. History shows that the Court understands that, to use Professor Thomas Reed Powell’s phrase, “a switch in time saves nine.”
In conclusion, like another unsuccessful campaigner, I would remind you that the people get the kind of government they deserve. He was speaking of the elected branches of government, but I think it is also true of the Supreme Court. If the country thinks it deserves better, it should do something about it.
[* ] Philip B. Kurland is the editor of The Supreme Court Review, and a professor of law at the University of Chicago. He is a frequent contributor to law reviews.
[1 ]E.g., Brown v. Board of Educ., 347 U.S. 483 (1954).
[2 ]E.g., Reynolds v. Sims, 377 U.S. 533 (1964); Lucas v. Colorado General Assembly, 377 U.S. 713 (1964).
[3 ] 347 U.S. 483 (1954). In retrospect, the importance of Brown inheres as much in the fact that it shook the equal protection clause completely loose from its moorings in history as in its substantive ruling. This is not to suggest that theretofore history had been a controlling factor in the application of the equal protection clause, but only that it had not been, as it would now seem to be, totally irrelevant except in its more fictionized versions.
[4 ]E.g., Peterson v. Greenville, 373 U.S. 244 (1963).
[5 ]E.g., Hamm v. City of Rock Hill, 379 U.S. 306 (1964).
[6 ] On the question of the meaning to be assigned the term “equality” see Wollheim, “Equality,” in Proceedings of the Aristotelian Society, 1955-56, London, LVI, p. 281; I. Berlin, “Equality,” ibid., p. 301. On the question of the appropriate resolution of conflict between “liberty and equality,” compare R. H. Tawney, Equality (4th ed.; New York: Capricorn Books, 1952), with F. A. Hayek, The Constitution of Liberty (Chicago: Univ. of Chicago Press, 1960). The comparison is not intended to suggest that “liberty” is the watchword of conservatism and “equality” the battle cry of revolution.
[7 ] Bell v. Maryland, 378 U.S. 226 (1964)
[8 ] Arthur J. Goldberg, “Equality and Governmental Action,” 39 N.Y.U. L. Rev. 205, 207 (1964)
[9 ] “The Supreme Court, 1963 Term, Foreword,” 78 Harv. L. Rev. 143 (1964).
[10 ] N. A. Rockefeller, The Future of Federalism (Cambridge, Mass.: Harvard Univ. Press, 1962), p. 29.
[11 ] K. C. Wheare, Federal Government (4th ed.; New York: Oxford University Press, 1964), p. 14.
[12 ] Schneider v. Rusk, 377 U.S. 163 (1964).
[13 ] Aptheker v. Secretary of State, 378 U.S. 500 (1964).
[14 ] A. M. Bickel and H. Wellington, “Legislative Purpose and the Judicial Process: The Lincoln Mills Case,” 71 Harv. L. Rev. 1, 3 (1957).
[15 ]The Spirit of Liberty (2nd ed.; New York: Alfred A. Knopf, 1953), p. 164.
[16 ] P. A. Freund, “To Amend—or Not to Amend—the Constitution,” New York Times Magazine, December 13, 1964, pp. 33ff.