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History of the Supreme Court

By Ronald L. F. Davis, Ph. D, California State University, Northridge

Blind Justice: Statue located at the entrance to the Supreme Court Building.
In their wisdom, the founding fathers (and mothers and brothers and sisters) based the government of the new nation on a fundamental law that embodied the ideals and process by which society itself would be held together. This Fundamental Law is the U. S. Constitution, which was ratified by the states in 1788. It is a written document for the entire world to see, and it contains within it the procedures by which the document itself can be changed by the people as they see the need for change.

The delegates, who went to Constitutional Convention in Philadelphia in 1787 to make the Articles of Confederation more workable, eventually drafted a document that replaced the Articles with a new and more powerful central government. The Constitution, which was the basis for this new order of government, separated the legislative, judicial, and executive powers, without fully spelling out the powers of each branch, especially those of the Supreme Court. Many of the founding fathers, such as James Madison and Alexander Hamilton, believed that each of the branches of government should be "supreme" within their own spheres. Much of American history since 1788 is about how these three branches have exercised their individual supremacy subject to the decisions of the Supreme Court, which assumed early in the Nineteenth century the authority for reviewing all government actions and laws in the context of their constitutionality. This means that the Court has functioned over time as the principal interpreter of the meaning of the Constitution.

In undertaking this responsibility of interpreting the Constitution, the Court was helped immensely by the fact that the Constitution is a written document--indeed, the first written Constitution in the history of the world. Being written, the Court has a text, which can be analyzed and studied. In general, the Court has looked at the Constitution from the following perspectives: the "original intent" of the creators and ratifiers of the Constitution at the time of its framing; how an average citizen would today interpret the words or text of the Constitution; the decision that would most obviously flow from the structure of relationships between the various, separate branches of government as implied by the Constitution; the wisest and most prudent decision to make when all the costs and benefits to the general welfare are taken into consideration; the use of precedents from earlier cases that have provided accepted and workable general rules; and the ethical considerations that are embedded in the moral ethos of the Constitution.

The history of the Supreme Court and the decisions it has made over time can be divided into four segments: firstly, from 1797 to 1865, when the Court struggled to define itself and to deal with the conflicting powers of the state and the federal government as the nation rushed toward Civil War; secondly, from 1865 to 1920, when the Court had to deal with the reconstruction of the southern states, civil liberties for African-Americans, and the emergence of a new industrial era; thirdly, from 1920 to 1930, when the Court moved away from the progressive thrust of previous years; fourthly, from 1930 to 1960, when the Court confronted the problems associated with economic collapse and the Great Depression, World War II and its Cold War aftermath, and the Civil Rights Revolution; and fifthly, from 1960 to 2005, when the Court dealt with the claims of citizens to have their rights upheld and protected as women, minorities, dissidents, voters, workers, non-residents, prisoners, the disabled, the elderly, gays, victims, and young people.

1797-1865

John Marshall: Chief Justice (1801-1835)

The delegates who wrote the Constitution created a Supreme Court in Article III, but left its powers and role somewhat unclear. The First Congress established, in the Judiciary Act of 1789, that the Court would consist of six judges working within a system of district courts and circuit courts. Three circuits, consisting of one district court judge and two Supreme Court justices, heard criminal cases and civil suits as well as appeals from the district courts. The Court also dealt with treaties and those cases in which a state was a party to the case. This meant that the Court was given exclusive jurisdiction over all civil suites between a state and the United States and in cases between two states. All other cases were tried in state courts, with the question of their appeal to federal courts being left uncertain except where clear federal law was involved. All criminal cases, except those involving federal crimes, were adjudicated in the state courts.

In 1807, Congress increased the size of the Supreme Court to seven, principally because of population growth in the western states of Kentucky, Tennessee, and Ohio. The Court's size rose to nine in 1837 and to ten during the American Civil War, with a new circuit made up of California and Oregon. By 1860 there were ten circuit courts within the federal system. The number of justices was changed back to eight in 1866, and then to nine again in 1869, where it has since stood. Today, the Court oversees 13 Courts of Appeal (Circuit Courts) and 94 District Courts in 50 states, the District of Columbia, Puerto Rico, and the territories of Guam, the Northern Mariana Islands, and the Virgin Islands. These courts, along with specialized legislative courts, make up the federal court system.

All Supreme Court Justices in the beginning were required by Congress to "ride circuit," attending 27 circuit courts and two sessions of the Supreme Court a year. This was difficult duty that meant logging thousands of miles annually. Legislators thought circuit riding was a good thing because it kept the Justices in touch with the people and out of Washington, D.C., where a sitting president might influence them unduly. This practice continued until 1891.

In the first 70 years of the nation's history, the Supreme Court was presided over by only five Chief Justices. The first three, John Jay (1789-1795), John Rutledge (1795), and Oliver Ellsworth (1796-1800), left little mark on the Court, at least in comparison to their two successors, John Marshall (1801-1835) and Roger Taney (1935--1864). Marshall dominated a Court whose numerous decisions greatly impacted the nation, and many of these rulings still stand today. As Chief Justice, Marshall increased the public respect for the Court by the clarity and profundity of the Court's legal opinions. He also established the Court's authority to review and invalidate, if necessary, acts of Congress and state court decision. And he acted decisively to promote the supremacy of the federal government over individual states. (See The Court Defines Itself Essay).

His successor, Roger B. Taney, moved boldly to counter Marshall's support for national supremacy by his doctrine of "dual federalism," which treated states as equal in sovereignty to the federal government. The Court held that states could exercise their police powers to protect the health and safety of state citizens to limit the scope and reach of national law. His attempts to limit Congress's authority to interfere with slavery in the territories greatly inflamed antislavery sentiment in the nation, while undermining the authority of the Court in public opinion as an instrument of pro-slavery ideologues. And his overtly racist opinions contrasted markedly with Marshall's carefully crafted statements, most famously his comment that blacks were "regarded as beings of inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so inferior, that they had no rights which the white man was bound to respect."

Looking back on the history of the Supreme Court from 1789 to 1865, the era is marked by the Court's struggle to establish its Constitutional power and authority by means of the doctrine of judicial review, to make clear the powers of the federal government in matters of commerce and trade, and to articulate the character of the relationship of state power to federal power. Among the most important decisions during these years were the following.

The Court, speaking though Chief Justice John Jay, declined to function in an advisory capacity to the president or to Congress, nor would it accept any duties that were not properly judicial (1793)

The Court functioned as a court of last resort, with the power to declare an act of Congress or the president unconstitutional. This became known as the power of Judicial Review. (Hayton v. United States--1796; Marbury v. Madison--1803)

The Court used the Contract Clause of Article I of the Constitution to bar states from modifying the terms of contracts legally made. (Fletcher v. Peck--1810; Dartmouth College v. Woodward--1819)

The Court allowed Congress to make laws based on what the Constitution implied rather than on what it explicitly stated. (McCulloch v. Maryland--1819;)

The Court determined that the national government, though limited in its powers, was supreme within its sphere of action, based on the Supremacy Clause of Article VI of the Constitution (McCulloch v. Maryland--1819; Collin v. Virginia--1821)

The Court used the Commerce Clause of Article I to exercise pervasive federal regularity power over the states in matters of interstate commerce. (Gibbons v. Ogden--1824)

The Court deferred to states all matters of criminal jurisdiction, stating that there was no federal common law that superceded state law in these matters. (Wheaton v. Peters--1834)

The Court ruled that no implied monopoly rights existed in charters granted by states. All monopoly rights had to be explicitly stated in the charter of incorporation. This ruling supported the competitive model of economic enterprise rather than the monopoly model. (Charles River Bridge v. Warren Bridge--1837)

The Court upheld the doctrine of "dual federalism" that established a balance between the regulatory power of the states and the national authority of federal courts (Bank of Augusta v. Earle--1839; Louisville Railroad v. Letson--1844)

The Court maintained that the Constitution did not empower the federal government to "guarantee to every state in the Union a Republican form of government (Luther v. Border--1849)

The Court upheld the constitutionality of the Fugitive Slave Act of 1793, maintaining that the slavery clauses of the Constitution were "sacred compromises." The ruling asserted the dictum that judges could not refuse to enforce an immoral law. (Jones v. Van Zandt--1847)

The Court ruled that Congress could not authorize a territorial government to abolish slavery in the territories. Because Congress had no authority under the Constitution to prohibit slavery in the territories, enslaved persons did not become free persons when taken into so-called free territories. Moreover, Congress had to protect and promote slavery in the territories under the obligations to slaveholders arising from the Due Process Clause of the Fifth Amendment. (Dred Scott v. Sanford--1857)

The Court generally upheld President Lincoln's unilateral suspension of habeas corpus, the arrest by the military of anyone suspected of being disloyal, and his imposing of naval blockades in decisions that deferred to Congress and the Executive branches of government during times of war. (Ex parte Stevens--1861; Prize Cases--1863; Ex parte Vallandigham--1864)

1865-1920: From the American Civil War through World War I

In the historical era from the American Civil War (1865) through the end of WWI (1918), two monumental issues engaged the Supreme Court and every person in America: the place in American society of four million formerly enslaved blacks; and the transition from an agrarian society to an industrial world. In confronting these problems, the nation re-made itself. Almost every case heard by the Court involved directly or indirectly these two issues. What follows is a discussion of the interwar era and the Court in seven parts: Changes in the Court; Chief Justices; Civil War Years; Reconstruction and Jim Crow America; Industrial Economy; Legal Classicism; and World War I.

Changes in the Court: The day-to-day business of the Court changed dramatically in the years after 1865. The Court moved into the former Senate Chamber when the Capitol was remodeled in 1860, during the latter part of Chief Justice Taney's term of office. Prior to this move, the Court had met (since 1819) in basement rooms beneath the old Senate Chamber in the Capitol building, which itself had been restored after the British burned it during the War of 1812. (Legend has it that the British used Supreme Court documents to light the fires.) The Court occupied this location until it moved into its own building across from the Capital in 1935, where it is presently housed.

The burden of riding circuit had become a nearly impossible weight on the Court by the time Confederate troops fired on Fort Sumter. Nine states had been admitted to the Union since 1802, and with the inclusion of a Pacific Court Circuit shortly after the Civil War, the call for limiting the circuit duties of the nine justices reached a crisis point. Some justices were forced to ride hundreds of miles each year in trains and horse-drawn coaches over poorly kept roads. In 1839, for example, the nine justices traveled nearly 30,000 miles riding circuit. Justice Stephen J. Field's Pacific circuit took him by sail to the West Coast, traveling by rail across Panama. After the completion of the transcontinental railroad in 1869, he at least was able to make the journey by rail. What's more, Congress left the justices to their own devices to cover travel expenses. They frequently used passes and vouchers provided by the railroads, a dubious practice seeing that many of the cases coming before them in this period involved the railroads.

During the years from 1860 to 1890, moreover, the number of cases heard each term mounted dramatically, from 310 to 1,816. Congress responded with the Judiciary Acts of 1866, 1869, and 1891. The first reduced the number of justices to seven and the number of southern circuits from three to two. More important was the Judiciary Act of 1869, which permanently set the Court's membership at nine and required each justice to ride circuit only once in two years. It also allowed them to retire after ten years of service at full pay.

In 1891, Congress eliminated entirely the circuit riding duties of Supreme Court justices in face of the distances involved, the costs of travel, and the staggering number of cases heard on appeal by the Court each year. It did this by creating intermediate federal courts of appeal, staffed with nine new judges. In 1911, the old district and circuit courts were abolished. Each Circuit Court of Appeal, which was the name given to the new courts in 1948, consisted of three judges. The decisions rendered by these courts were final in cases involving parties from different states, federal patent law, federal revenue law, and admiralty law. Thus was created the present system of district courts, federal courts of appeal, and the Supreme Court.

The new courts of appeal resulted in a dramatic reduction in cases heard by the Supreme Court. In 1892, only 275 were heard. Still, the right of appeal to the Supreme Court remained intact in a number of key areas: those cases involving more than $1,000; prize cases; convictions for capital crimes, all cases asking constitutional questions; and appeals from state supreme courts. Additionally, the Court could review any case it wished to hear that had been ruled on by the circuit courts. This reduction did not last long. The 1890s and the new century witnessed a spurt in regulatory legislation at the state and federal levels, and the Court's docket once again exploded. It grew from 723 cases in 1900 to 1,116 in 1910.

With the end of circuit riding, Supreme Court justices began to reside permanently with their families in Washington D. C. rather than within the boundaries of their assigned circuits. This ended the traditional geographic diversity of the Court's members. Because they did not have to ride circuit, there were less compelling reasons for them to be appointed based on their residency in the circuit districts. Thereafter, Supreme Court justices were appointed largely irrespective of any geographic issues or constituency.

Chief Justices: During these years, five Chief Justices led the Supreme Court, and each of them left a mark on their terms of office, although none equaled the imprint made by Marshall and Taney or later Chief Justices. Salmon P. Chase, a strong antislavery politician from Ohio, headed the Chase Court as Chief Justice from 1864 to 1873. He had served before his appointment to the Court as Lincoln's Secretary of the Treasury during the Civil War. The Chase Court oversaw the assassination of Abraham Lincoln, Radical Reconstruction, the impeachment of President Andrew Johnson, and the passage and ratification of three constitutional amendments--the Thirteenth, fourteenth, and Fifteenth. Historians do not think of Chase as a great Chief Justice. He is considered to have been a weak leader, and his term is noted for the assertion of congressional authority over both the executive and judicial branches of government. A man who had hoped to be president, his management of the impeachment proceedings of President Johnson is viewed as his finest hour as Chief Justice, and he often found himself on the dissenting end of Court opinions.

Morrison R. Waite became Chief Justice in 1874, serving until 1888. Nominated to the Court as the fourth choice of President Grant, Waite was a relatively unknown Ohio politician and Republican Party loyalist whose principal claim to fame stemmed from his service as one of the counsel in the dispute over England's role in outfitting Confederate commerce raiders. He is remembered as an able and effective administrator and he wrote more than 1,000 opinions in his fourteen years of service. The Waite Court was one of the most influential in history, hearing and ruling on scores of cases involving civil rights and regulation of the economy.

Melville W. Fuller, a Harvard-educated lawyer from Main who moved to Illinois prior to the Civil War, was a life-long Democrat. When Grover Cleveland was elected president, the first Democrat since before the Civil War, he appointed Fuller as Chief Justice principally because he needed political support in the pivotal state of Illinois. Although a man of no national reputation, he was a controversial appointment because of his anti-Lincoln affiliations and because Republicans still dominated Congress. His opponents spread gossip about him as having been disloyal during the Civil War, holding up his confirmation for over two months. He was finally confirmed by a vote of 41 to 20. Under his leadership the Court reached its apex of conservatism, blocking both state and federal regulation of the economy as well as the use of federal authority to combat racial discrimination. He wrote 840 opinions and offered only 30 dissents. Overshadowed both physically and intellectually by other justices on the Court, such as Oliver Wendell Homes, Jr., John Marshal Harlan, Stephen J. Field, and Joseph P. Bradley, Fuller nevertheless held his own as a manager of Court proceedings. He worked hard to achieve consensus in Court rulings, and he put great stock in the pomp and ceremony of Court affairs. To the end of his days, he eagerly participated in countless official events as the third person behind only the president and vice-president in ceremonial recognition.

Edward D. White served as Chief Justice from 1910 to 1921. Born on a plantation in Louisiana in 1845, White served in the Confederate army during the Civil War, as a state senator, and briefly as a member of the Supreme Court of Louisiana in the years after the end of Reconstruction. Appointed to the U. S. Senate in 1888, Grover Cleveland nominated him to the Supreme Court in 1894. Although a died-in-the-wool Democrat, White was confirmed without opposition the same day he was nominated. Because he had made little impact on the Court during his 17 years as an Associate Justice--he authored only a few opinions, it came as a surprise when President William Howard Taft nominated him to be Chief Justice. Most everyone expected the seat to go to recently appointed Associate Justice Charles Evans Hughes. Historians agree that White got the appointment because President William Howard Taft hoped to assume the position for himself after leaving the presidency, and the sixty-five year old White was a better bet for retirement in the near future. As Chief Justice, White contributed little that was memorable, except for his role in the Standard Oil v. United States (1911). In that landmark case, White persuaded the Court to apply the so-called subjective rule of reason to deciding cases involving alleged monopolies. This principle held that the Sherman Antitrust Act prohibited only those business combinations that constituted an unreasonable restraint of trade. This gave the Supreme Court tremendous power to decide what was reasonable and what was not. Legal historians contend that with White, the Court embraced "judicial subjectivism," which helped pave the way for the emergence of "legal realism' in the 1930s.

The Civil War Years: The Supreme Court emerged from the Civil War as a weakened Court. The Court's pro-slavery decision in the Dred Scott case had left it open to the charge of political if not moral opportunism on behalf of the so-called slave powers in the nation. With the outbreak of fighting, the Court took a backseat role in deference to the authority of the federal government principally because the big issues were being settled on the battlefield and not in the courtrooms. Few could successfully doubt, or effectively challenge, the power of the executive as commander-in-chief when the very survival of the nation was at stake.

When Lincoln responded to secession by launching a blockade of southern ports without calling for a declaration of war from Congress, the Supreme Court affirmed his decision by a bare majority (Prize Cases 1863). This ruling helped to define the struggle to put down a domestic insurrection as though it were a full-fledged international war, for which the president as commander-in-chief was obligated to meet with whatever means necessary. This ruling also set the stage for the Court's approval of other presidential acts of war, such as the Emancipation Proclamation and the suspension of habeas corpus.

Although Chief Justice Taney, acting in his capacity as a circuit judge, had declared unconstitutional Lincoln's suspension of habeas corpus while Congress was out of session, Lincoln simply ignored the ruling (Ex parte Merryman, 1861). Congress later ratified Lincoln's actions with the Habeas Corpus Act of 1863. The Court also refused to intervene when Lincoln arrested, tried, and sentenced a civilian before a military tribunal (Ex parte Vallandingham, 1864). Nor did it challenge Congress's passage of the Second Confiscation Act in 1862, which freed the slaves of certain rebellious slaveholders and authorized the use of black soldiers. The Supreme Court upheld this law in 1870 (Miller v. United States).

Reconstruction and Jim Crow: With the end of the Civil War the nation was faced with a monumental question: what would become of the four million formerly enslaved African Americans and the several hundred thousand free blacks in the nation? Would they be treated as equal to whites politically, socially, and legally? In the first decade after the War, the nation answered these questions with a series of unprecedented federal actions. The defeated Confederacy was occupied by federal soldiers and governed by federal efforts to reconstruct the state of the Confederacy to achieve full political equality for black Americans. This political equality would be achieved with the passage and ratification of three constitutional amendments (Thirteenth, Fourteenth, and Fifteenth) aimed at protecting the rights of black Americans as citizens.

With the ratification of these three amendments, the nation embarked on what some historians refer to as an era of "constitutional creationism." The nation clearly announced in these amendments that all people born in the United States are citizens deserving equal protection under the law; and that no person could be denied the rights of citizenship, including the vote, on the basis of one's race, color, or conditions of previous servitude. These amendments, by abolishing slavery and granting equal citizenship to former slaves and free blacks, overturned Chief Justice Taney's ruling in the Dred Scott case. They also removed from the Constitution the "three-fifths persons clause" in allocating house seats.

The language of all three amendments empowered Congress with the responsibility for enforcing them by passing appropriate laws. The most important of these laws were the Civil Rights Act of 1866, which guaranteed to blacks the same rights as whites to "make and enforce contracts" and to "purchase, lease, [or] hold property;" the Enforcement Acts of 1870 and 1871 (also known as the Ku Klux Klan Acts), which attempted to deal with the violent efforts of southern whites to terrorize blacks to keep them from voting; and the Civil Rights Act of 1875, which barred discrimination in public accommodations. These laws enjoyed the widespread support of African Americans as well as many northern, white Republicans. Because it was almost certain that African Americans would cast their votes for the party of Lincoln, leaders of the Republican Party saw these laws as the best hope for assuring the power of the Republican Party in the South, African Americans believed the laws were absolutely necessary to counter the terrorist efforts of those southern whites willing to use violence to intimidate and subjugate blacks.

The federal reconstruction of the South outraged southern whites, producing in response a concerted effort to undermine if not block the enforcement of the Reconstruction-era laws and amendments. This resistance ranged from the economic intimidation of blacks to outright acts of terror. Southern blacks, by 1870, had become a class of landless and impoverished agricultural laborers or tenant farmers, known as sharecroppers. This happened principally because federal programs included no meaningful economic aid for the formerly enslaved, economic support that might have helped them achieve self-sufficiency or economic independence. No lands owned by the former Confederates, for example, were redistributed to the formerly enslaved. Nor were long-term economic subsidies provided to prevent blacks from falling into the trap of debt-peonage to southern merchants. As a result, it was almost impossible for the formerly enslaved to stand independent in the face of efforts by Southern whites to intimidate them or to terrorize them into submission.

The Court initially responded to Reconstruction by upholding the authority of Congress and the President in passing and enforcing the Reconstruction Acts for southern states. This stance solidly affirmed the authority of the federal government relative to the states. But by the mid-1870s, the Court switched gears and began to limit if not block the applicability and impact of the three Reconstruction-era amendments and the various federal laws aimed at enforcing them. Ironically, the first Supreme Court case that greatly limited the ability of the federal government to protect African Americans did not include any African Americans as participants: Slaughterhouse Cases, 1873.

In Slaughterhouse, which was a combination of several suits, a group of New Orleans butchers challenged a state law granting a butchering monopoly to a specific meatpacking company in the crescent city. These white butchers sued under the Fourteenth Amendment on the grounds that no state law could deprive any citizen of life, liberty, or property without the due process of law. The Court, in upholding the state law, ruled that the Fourteenth Amendment affected only African Americans and was not grounds for a suit by other white citizens. But it also ruled, in a major setback to civil rights, that the Fourteenth Amendment affected only those individual rights related to national citizenship; all other rights fell under the authority of the states to protect or regulate. The state could pass laws affecting butchers and or blacks without the interference of the federal government, unless the state laws impaired a person's right as a national citizen or directly violated the race-based provisions of the Fourteenth and Fifteenth Amendments.

This ruling proved devastating for the enforcement of civil rights because it distinguished between the rights of national citizenship and state citizenship. It limited the federally protected rights of U. S. citizens to a few constitutional claims: "the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts." Congress, according to the Court's ruling, could not go beyond these limitations to interfere with a state's right to exercise its "powers for domestic and local government, including the regulation of civil rights, the rights of persons and of property," and any others not specifically delegated in the Constitution to Congress. This opinion essentially said that Congress had no business trying to enforce civil rights. Such enforcement, according to the Court's ruling, was up to the states. If the states did not act, the federal government could not interfere. It could not force the states to protect the civil rights of blacks. It could only prevent a state from passing laws that violated the rights of African Americans as citizens of the U. S.

Most importantly, although Congress could move, according to this opinion, to stop state laws that discriminated on the basis of race, it could not prevent private actions directed against blacks. Only the states could act in these matters. And no southern state after the end of Reconstruction prevented by law the infringement of the civil rights of blacks by private individuals. With this ruling the Court held that the Privileges and Immunity Clause of the Constitution is not grounds for federal action in protection of civil liberties.

Three other Supreme Court decisions weakened significantly the role of the federal government in enforcing civil rights for African Americans: United States v. Cruikshank (1876), the Civil Rights Cases (1883), and Plessy v. Ferguson (1896). The final case, which held constitutional those state laws permitting the segregation of the races in public places and schools, drew on Slaughterhouse and the Civil Rights Cases as precedents.

Cruikshank involved the most brutal slaughter of African Americans by a white mob in American history. At least 100, and possibly as many as 280, black men were killed when they surrendered to a band of whites that had surrounded them in the Colfax Courthouse in Grant Parish, Louisiana. Ninety-eight men were eventually indicted for violating the Ku Klux Klan Act (Enforcement Act) of 1870, which outlawed conspiracies to deny the constitutional rights of citizens. Of these only nine stood trial and only three were convicted, one being William Chruikshank. Because murder was not a federal crime, the defendants were convicted in federal courts of violating rights guaranteed to blacks by the Fourteenth and Fifteenth Amendments, namely of (1) "the free exercise and enjoyment of the right to peaceably assemble," and (2) "due process of the law." Interfering with the rights of the murdered blacks to vote and assemble was a federal offense under the Enforcement Acts of 1870 in the opinion of the lower courts.

The defendants appealed to the Supreme Court on the grounds that as private individuals they had not denied to the murdered blacks any federally protected rights. The Court agreed, ruling unanimously that the right to "due process and equal protection" was a constitutional limit on state actions not on private actions. Moreover, because the indictment did not accuse the defendants of being motivated in their actions by race, there could be no grounds for federal intervention under the provisions of the Fourteenth and Fifteenth Amendments. And finally, the Court held that the right to the freedom of assembly was a privilege of national citizenship (meaning a right protected by federal law) only when it is exercised for the purpose of petitioning Congress, which was not the case in Colfax. Therefore punishment for the Colfax massacre rested with the state of Louisiana not the federal government. This ruling essentially made the Enforcement Acts of 1870 and 1871 unenforceable by federal authority; it promoted continued violence by whites against blacks in the Reconstruction South, culminating in an epidemic of public lynching and the torture murder of African Americas that plagued the nation for the next 50 years.

This case was followed a few years later in 1883 by a ruling that deemed unconstitutional the Civil Rights Act of 1875 (Civil Rights Cases). The Court decided, by a vote of 8 to 1, that federal laws prohibiting racial discrimination in hotels and inns, public conveyances, and places of public amusement violated the police powers of the states. The ruling proclaimed that Congress had no authority to prevent the interference of private citizens with the civil liberties of other private citizens, such as voting rights, jury service, and appearances as witnesses in state courts. Such violations by individuals of a person's civil rights had to be addressed by the states not the federal government. This decision removed federal enforcement of civil rights for blacks until the 1950s and the emergence of the Civil Rights Movement of that era. The Civil Rights Act of 1964 was aimed specifically at prohibiting discrimination in public accommodations, and it was based not on the Privileges and Immunities Clause of the Constitution but on the Commerce Clause, which had not been addressed in the Court's 1883 opinion.

In the landmark segregation case of Plessy v. Ferguson, decided on May 18, 1896, the Court ruled that the Reconstruction-era amendments protected the political equality of blacks but not their social equality. Homer Plessy, a light-skinned, resident of New Orleans with African ancestry (an "octoroon"--a term used at the time to describe someone with seven white great-grandparents and one black grandparent) challenged the state law segregating blacks and "people of color" from sitting with white passengers on municipal trains. Plessy was arrested because he refused to sit in the "colored only" section of the train, It was the most notorious legal challenge to the wave of Jim Crow laws that swept over the nation in the 1890s, beginning with those in Mississippi aimed at segregating blacks in public facilities that were theoretically "separate-but-equal" to those afforded whites.

The Court ruled against Plessy 7 to 1, contending that the segregation laws in question did not discriminate on racial grounds but merely recognized a distinction between the races. It agreed that state laws could not deprive blacks of political rights, but it held that social rights were not considered fundamental in the same sense as political rights. Moreover, according to the Court, states are constitutionally empowered to protect the public's health, welfare, and morals by passing reasonable laws; segregation laws met this test as a reasonable exercise of the state's police powers. In the opinion of Plessy's lawyer, Albion Tourgee, the decision destroyed for all practical purposes the Fourteenth Amendment and "emasculated the Thirteenth." Plessy put the Supreme Court on the side of segregation and disfranchisement, giving credibility to a flood of Jim Crow laws that engulfed the southern states and many parts of the rest of the nation.

Those who defend the Court's actions in these decisions, then and now, claim that the Court was upholding the traditional concepts of "dual federalism," or the constitutional theory that certain powers of government should remain in the hands of the states. These state powers--ordinary criminal law enforcement, health and safety regulations, and authority for establishing the rules governing the daily activities and relations of local citizens--promote the values of grass-roots democracy and adhere to the original intent of the founding fathers. In this perspective, the federal government under the provisions of the new amendments can prosecute private individuals only when racial discrimination is the provable motivation behind the actions in questions. But the job of fighting for Civil Rights, according to this perspective, is best left to the states, as intended by the founding fathers.

Critics of the Court's decisions limiting federal authority over civil rights argue that the new amendments removed the distinction between national and state citizenship, creating one form of citizenship. In this perspective, federal authority is responsible not only for preventing state actions that violate an individual's civil rights but also private actions when the state fails to act. The debate hinges on the meaning of the words, "the rights of citizens of the Unites States." How inclusive were these rights? What is the role of the federal government in protecting these rights against any and all infringements? Also, do the Fourteenth and Fifteenth Amendments empower the federal government to ensure the social as well as the political equality of whites and blacks?

Critics also charge that the Court's opinions in the Civil Rights Cases and in Plessy rejected the idea that racial discrimination in public accommodations was a consequence of slavery, which the Thirteenth Amendment had abolished. They contend that any laws designed to keep blacks inferior to whites violate the spirit and intention of the three Reconstruction-era amendments. They see laws restricting the voting and public movement of blacks as the "incidents" of slavery. It is interesting to note, moreover, that a century later, in 1986, the Supreme Court held that Congress has the authority to ban discrimination in housing as an "incident" of slavery; and it used the Thirteenth Amendment as the basis of its ruling.

Although Plessy upheld the power of states to oversee matters of racial discrimination in voting, travel, and housing, the Court did not always abandon African Americans to state authority. In 1915, for example, the Court modified but did not reverse an earlier opinion (Williams v. Mississippi, 1898) regarding state-imposed racial barriers to voting. It held that the so-called grandfather clause, which allowed anyone to register to vote if he had been eligible in 1867, or if he were a legal descendant of such a man, violated the Fifteenth Amendment (Gunn v. United States). Four years earlier, the Court struck a blow against peonage labor, or the practice of keeping indebted blacks at work as agricultural laborers, in Bailey v. Alabama (1911). In 1917, the Court unanimously overturned a lower court's support of a Kentucky ordinance prohibiting residential integration (Buchanan v. Warley). In this case, the Court ruled that such an ordinance interfered with the rights of blacks and whites to dispose of their property to their best advantage. Still, these cases were largely symbolic and had little real impact. Most states had dropped the grandfather clauses by this time, using literacy tests, poll taxes, and violence to disfranchise blacks. In the matter of residential segregation, the Court thereafter upheld private restrictive covenants among white neighbors to limit sales of property or rentals to non-Jewish whites (Corrigan v. Buckley, 1926).

The Supreme Court and the New Industrial Era: At the same time as the Court was dealing with the aftermath of slavery, it also engaged the onset of the new industrial age that engulfed the nation after the Civil War. This era between the wars witnessed the virtual transformation of American life as most of the nation's citizens became industrial workers rather than farmers and skilled craftsmen or autonomous laborers in commerce and trade. Cities exploded in size, filling up with a new breed of immigrants from Southern and Eastern Europe, men and women culturally different from the majority of the nation's residents in 1860. Giant corporations emerged from the Civil War with unprecedented power concentrated in the hands of so-called captains of industry, or robber barons, depending on one's perspective at the time. Farmers all over American found themselves deeply in debt as they borrowed heavily to adopt the new machinery of the industrial era, such as reapers and mechanical harvesters, which made them incredibly productive. As their crop yields soared, their crop prices fell through the floor while the costs of shipping their crops by rail increased dramatically.

In the ensuing chaos of the industrial age, giant industrial corporations, militant labor unions, and angry farmers battled politically to control federal, state, and local government to the benefit of their own interests. These battles gave birth to important third party political movements, such as the Populist and the Socialist Parties, which contested the two mainstream parties (Democrats and Republicans) for power. Farmers wanted the government to regulate railroads and to support price increase of farm products. Workers demanded collective bargaining, job security, the ten- hour day, and health and welfare benefits. The giant corporations opposed all of these efforts for government regulation as un-American, unconstitutional, and socialistic.

When the economic depression of 1893 hit the nation, which was the worst economic collapse in the nation's history, many Americans thought that revolution was at hand. Out of this economic debacle burst a spontaneous drive for reform known in the 1890s as the Progressive Movement--and it was made up by-and-large of middle-class urban dwellers. These reform-minded men and women, furious with the excesses of unregulated capitalism and the new industrial era, sought to curb the industrial exploitation of natural resources, turn out corrupt political bosses, extend suffrage to women, stop the manufacture and sale of alcohol, regulate the industrial behemoths that seemed to have a strangle hold on the nation's politics and economy, and protect the most vulnerable of the nation's people--its children, women, and average consumers--from horrible working conditions, abject impoverishment, poisonous foods, foul air and water, corporate arrogance, and shoddy products. By the end of the century, American citizens from all walks of society began demanding government action on behalf of the public interest.

This outburst of political fervor sent reform-minded leaders into the White House (Theodore Roosevelt and Woodrow Wilson) and impacted every branch of government from local towns and villages to the Supreme Court of the United States. A myriad of new laws aimed at regulating the economic disorder of the industrial state began pouring forth from Congress after 1900. In addition, four new constitutional amendments reflecting the calls for reform were eventually passed and ratified: the Sixteenth Amendment reformed the U. S. Senate by allowing for the direct election by the people of its members; the Seventeenth Amendment made legal a progressive income tax on the wealthiest of Americans; the Eighteenth Amendment prohibited the manufacturing and sale of intoxicating liquors; and the Nineteenth Amendment gave the vote to women. And it was up to the Supreme Court of the United States to interpret the constitutionality of these laws and the practical meaning of these new amendments

In the initial two decades after the Civil War, the Supreme Court vacillated somewhat in addressing the new industrial order. At first the Court upheld state regulatory authority over enterprise, even over businesses that crossed state borders. It did so in the Slaughterhouse Cases in 1873 and in Munn v. Illinois in 1877. The Supreme Court upheld state power to regulate private enterprise in the public interest--the butchering of meat, in Slaughterhouse, and rates charged to farmers, in Munn, by the owners of grain elevators. Justice Stephen J. Field issued a strong dissent in both cases, arguing that certain rights are protected by the Constitution and cannot be taken away without due process, meaning a hearing and legal representation. For Field the right of butchers to labor freely was among the privileges and immunities of citizens of the United States. He articulated this idea even more forcefully in his dissenting opinion in Munn, saying that such state regulation of enterprise threatened every business in the state with government intervention. In time, Field's opinion, which rested on the novel idea of "substantive due process," became the position held by the Court's majority in the years from 1880 to 1920.

It was clear by 1900, that the Court generally opposed both state and federal regulation of enterprise. Its ruling in 1886, that corporations were legally persons, gave corporations the right, under the provision of the Fourteenth Amendment that forbids a state from denying to any person the equal protection of law, to demand due process (Santa Clara County v. Southern Pacific Railroad Co.). It also gave corporations the legal grounds for challenging as unreasonable any law that deprived it of profits or property.

As the Court embraced Fields' perspective in the 1880s and 1890s, it began overturning state regulatory laws, especially those regulating railroads. This judicial stance strengthen, ironically, the call for federal regulatory laws, resulting in the creation of the Interstate Commerce Commission in 1887 and the Sherman Antitrust Act in 1890. Not surprisingly in view of its opposition to regulation in general, the Court looked with suspicion on this new federal law and the ICC. In 1895, the Court narrowed the scope of the Sherman Act by limiting its regulatory powers over corporations to interstate trade and commerce but not to the local manufacture of the products traded. The case in question was the suit brought by the federal government to break up a sugar-refining monopoly that controlled nearly all the sugar refined in the nation (United States v. E. C. Knight Co). Here the Court said that such federal regulation would violate the state's authority to regulate local business. This meant that the federal government could not use the Sherman Act to deal with abuses to workers, for example, in the factories or to oversee the impact of the industry on the local environment. To do so would violate the corporation's constitutional right to due process, under the Fourteenth Amendment, and the state's constitutionally defined police power to deal with health and welfare issues within state boundaries.

The Court also required regulatory commissions to show that their rates were reasonable. This stance allowed enterprises to challenge rates set by the ICC as unreasonable (Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota, 1890; Reagan v. Farmers' Loan & Trust Co., 1894; Smith v. Ames, 1898). And in the 1890s, the Court all but tied the hands of the Interstate Commerce Commission to set rates or even to investigate businesses in interstate commerce. Besides holding suspect any state or federal laws that regulated business as a violation of substantive due process, the Court began to define property rights in such a way as to challenge regulation as the potential confiscation of private property, which is unconstitutional except in rare cases.

In protecting big business from state and federal regulation, the Court came down especially hard on those laws aimed at protecting or empowering workers. In these matters, the Court was blatantly inconsistent in its view of state and federal regulatory power. What it held to be impermissible regulation of businesses, it deemed valid regarding labor. The best example of this inconsistency came when the Court allowed for a court injunction In Re Debs to stop a labor strike against railroads by the American Railway Union in 1995. The Court ruled that the strike, which threatened to halt all railroads running through Chicago, constituted "a restraint of interstate commerce" in violation of the Sherman Antitrust Act. The Union's president, Eugene v. Debs, and other union officials, were arrested and jailed when they defied the injunction and continued the strike. The imposition of this court injunction was the first time it was used as a means of breaking strikes, and the device remained the favorite tool of anti-labor forces in the nation for the next 30 years. This ruling came in the same year as the Knight case discussed above, in which the Court held that the Sherman Antitrust Act did not apply to the manufacture of goods used in interstate commerce but only to the actual interstate movement of those goods.

In one of the most important anti-labor decisions of the era, the Court struck down a law limiting the working day of bakers to ten hours (Lochner v. New York, 1905). The Court argued that this New York law violated a worker's right to freely contract for his or her labor without government interference. Moreover, the Court declared that only legislation designed to protect public morals, health, safety, or peace and public order could be justified as a reasonable exercise of power by the state. The Court stated that while a minimum hour rule might be acceptable for miners, it was not acceptable for bakers, because their health was not obviously threatened by a long workday. In this case, the Court effectively substituted its judgment for that of the New York legislature, formulating what became a pattern of judicial activism that lasted until the mid 1930s.

This case also provoked a vigorous dissent from Associate Justice Oliver Wendell Holmes, perhaps the most famous of his many dissents. He argued that the majority opinion introduced a new fundamental right not clearly spelled out in the Constitution: the liberty of contract. In his mind, the Court's opinion in Lochner was based on "an economic theory that was not a fundamental principle of law." For Holmes there was no solid evidence that the invisible hand of the free market place achieved justice for workers. More importantly, in terms of later decisions and the changing perspective of the Court in the 1930s, Holmes firmly established with his dissent the basis for arguing that judges should not counter easily the will of the legislature in making policy if the legislatures decision is a reasonable one that does not violate fundamental principles. This would eventually become known as the doctrine of "legal realism."

The Court's position on regulation proved to be widely unpopular, drawing criticism from all areas of American life, including President Theodore Roosevelt. Perhaps because of its unpopularity, the Court began to embrace somewhat the idea of regulation as a positive good. In 1911, the Court found reasonable the federal government's call for breaking up Standard Oil Company (Standard Oil Co. v. United States, 1917). In making this decision, the Court introduced the idea of making a reasonable judgment about which monopolies to break up as unreasonable constraints of trade. In asserting the principle of "judicial subjectivism," the Court retained its role as the ultimate referee as to what was reasonable or not in government regulation. As a result of the unpredictability of such a position, the federal government passed the Clayton and Federal Trade Commission Acts 1n 1914 in support of the Sherman Act. These laws specifically barred pricing agreements among competitors that restrained trade, prohibited interlocking directorates in large corporations, and made it illegal for a firm to own stock in the company of a competitor.

In reaction to a popular demand for laws that served the general welfare, the Court began to move away from its narrow interpretation of government regulatory laws. It upheld an expanded jurisdiction of the federal government to regulate interstate commerce, to levy taxes, and to ban undesirable products from interstate commerce under the so-called police power of the federal government. It also allowed the federal government to establish health and safety regulations for local businesses at the beginning or ending point of national commerce, including every aspect of employment in interstate transportation companies such as railroads. This notion of a stream of commerce with a beginning point essentially overturned the precedent banning federal and state regulation of the manufacture of products later involved in interstate commerce. The Court also broadened its perspective on what legislation served the general welfare, including paternalistic laws that set maximum hours for women and children (Muller v. Oregon, 1908). This pattern of support for government activism reached its peak during WWI, with the pervasive economic controls imposed by Congress and upheld by the Court.

Legal Classicism: For the Court, the issues surrounding state and federal regulation of the economy and the protection of the civil rights of blacks were not easy ones legally speaking. It had to grapple for the first time with interpreting not only the original constitution but with the meaning of the new amendments. Never before in the nation's history had so many new forces emerged on the scene demanding judicial protections, sanction, and wisdom. For most of this interwar era, the Court acted as a besieged institution and fell back upon a traditional view of the law. This view has been described by legal scholars and historians as "legal orthodoxy," "constitutional fundamentalism," or "legal classicism." What this means is that the Court's members typically believed that the law was above popular democracy, that it consisted of a set of general principles beyond the will of the people. It was the job of the judiciary to render decisions based upon their understanding of these principles. At the foundation of these principles, which classical legalists find embedded in the Constitution, was the bedrock of human liberty. Flowing from this bedrock was a set of human rights, which the legal orthodoxy defined as security of life and person, the unfettered ability to exercise individual will, and the sanctity of property. None of these could be denied of a citizen without the due process of law. Any government action, no matter how popular, that threatened an individual's liberty was fundamentally suspect and in violation of the Constitution. This was the legal orthodoxy of the day.

Except for the brief few years of Reconstruction, the Court tended to view in the interwar year as suspect any government actions that threatened to redistribute wealth, to protect some people by taking wealth from other people, to deprive owners of the fruits of their labor and the benefits of their property, and to interfere with contractual relationships that were deemed to be freely and voluntarily negotiated. It was the job of the Court, according to this view, to block government actions that threatened individual liberty. What the majority of the people might want to do had to be constrained by the fundamental principles found in the constitutional order--principles that might run counter to statutory law. No individual or group of individuals, no matter how strong, could take one's life, liberty, or property with out the due process of law.

Employing the judicial philosophy of legal classicism, the Court worked to block those efforts by reformers to check the power of corporate interests and those efforts by the supporters of racial equality to use federal power on behalf of African Americans. And the Court exercised its authority in the name of liberty and the Constitution. It would be misleading to say, however, that the Court always operated with a single mind on these matters. Historian William C Wiecek points out that while the Court upheld most state and federal laws aimed at regulating the economy, it nevertheless opposed such laws in the most important cases of the day. And some of its members issued path-breaking dissents that forecast the coming of a different judicial perspective in the 1930s, most notably Justice Oliver Wendell Holmes. Still, the Court between the wars was largely and principally a Court governed by the perspective of legal classicism rather than the notion that the Court's first responsibility is achieving justice for all the nation's citizens.

WORLD WAR I: America's entry into the European war in 1917 ushered in a period of massive federal power, similar to what had happened during the Civil War, but on a much larger scale. The federal government began to regulate and coordinate much of the American economy, drafted civilians for service in the armed forces, and spent lavish amounts of money on national defense. The executive branch assumed great authority as commander in chief, head of wartime bureaucracies, and dispenser of government revenues. New federal agencies, such as the Office of Food Administration and the War Industries Board, exercised regulatory power over most of American industry and commerce. And Congress handed tremendous power to the president. The Lever Act of 1917 authorized President Wilson to control the production of food and to set prices, to operate mines and factories for war production needs, and to limit the production of liquor and redistribute it for use in military hospitals. The Wartime Prohibition Act in 1918 halted completely, if temporarily, the sale of liquor. The Congress empowered the president to control rents in Washington, D. C., to seize and operate the railroads, and to set up a program of rationing the sale, distribution, and consumption of goods consumed by the civilian population.

Almost no area of the American economy and society escaped government regulation during the war years. Much of this regulation introduced some of the reforms associated with the Progressive Movement and became a model for later government programs during the Great Depression of the 1930s. The War Finance Corporation, which helped firms convert to military production, inspired the Reconstruction Finance Corporation under President Herbert Hoover, and the New Deal's National Recovery Administration was copied from Wilson's War Industries Board. The handling of labor disputes by the National War Labor Board served as the inspiration for Franklin D. Roosevelt's Labor Relations Act of 1935. The Eighteenth Amendment's prohibition in 1919 of the sale and manufacture of alcohol was greatly facilitated by the Wilson's ban on liquor for civilian consumption during the war.

Even more than its control of the economy, the Wilson Administration exercised unprecedented force in suppressing political dissent. The Espionage Act of 1917, along with the Sedition Act of 1918, enabled the government to legally prosecute scores of pacifists and left-wing opponents of the war, most notably Socialists and the Industrial Workers of the World (IWW). The government also launched a massive propaganda campaign to pump up support for the war and Wilson's executive actions. Wilson created the Committee on Public Information (CPI) in 1917, which mobilized 75,000 speakers, called "four-minute men," who delivered patriotic talks and led pro-war cheering rallies in the nation's churches, schools, movie theaters, and public squares all over America. The CPI handed out millions of pro-war pamphlets printed in several languages, sponsored exhibitions and parades in numerous cities, and produced patriotic films, such as The Kaiser: Beast of Berlin.

These pro-war measures not only generated support for the war, they also fed the flames of vigilantism and resulted in many atrocities where innocent people fell victim to the passions of patriotic mobs. In one case, a German-American was stripped naked, wrapped in an American flag, and lynched by a mob of 500 persons near St. Louis, Missouri. The examples of such out-of-control passions are many. Beethoven's music was banned in Pittsburgh, mobs burned books taken from libraries that contained German words or written by Germans, and countless people were tarred and feathered for speaking against the war or for not demonstrating adequate patriotism. Victor Berger, a Milwaukee socialist newspaperman, indicted for violating the Espionage Act, was denied his elected seat in the House of Representatives with only one vote cast in opposition. Scores of people were sent to prison for criticizing the war, often for the most minor infractions--such as saying that socks darned by women would never be put on the feet of American soldiers.

In almost all of the above areas, the Supreme Court capitulated to federal authority. The issue of government censorship came to the Court in Schenck v. United States (1919). In this case the General Secretary of the American Socialist Party was convicted under the Espionage Act of obstructing the draft for printing and mailing to draft-age men antiwar leaflets. The case raised a fundamental question: what are the limitations on the First Amendment's guarantees of freedom of speech and of the press? The Court unanimously upheld the Espionage Act, reasoning that the right of free speech is never an absolute right in war or in peace. Associate Justice Oliver Wendell Holmes argued for the Court, presenting his now famous "clear and present danger" test for what constitutes protected speech, stating that: "Free speech would not protect a man falsely shouting fire in a theater, and causing a panic."

A week after the decision in Schenck, the Court upheld the conviction and ten-year sentence of the Socialist leader Eugene V. Debs for making antiwar speeches (Debs v. United States, 1919). In this case, Holmes applied the so-called "bad tendency test" to the question of free speech. He argued the legality of speech could be measured by its tendency to cause an illegal act. This ruling made speech little different from other attempts at crime. Speech that has a tendency to cause illegal action is not protected speech. Critics argued that the "bad tendency test" violated First Amendment protections for discussing government policies. Debs was sent to jail, where he campaigned for the presidency in 1920, garnering over 900,000 votes.

It is important to note, that Holmes later modified his position in a series of dissents in the 1920s, making the point that the clear and present danger test had to be defined as an immediate evil of great consequence. In Abrams v. United States, which upheld the Sedition Act, Holmes broke with the Court when it convicted and sentenced to 20 years in prison a anarchist Russian immigrant, for writing, printing, and distributing two leaflets protesting the presence of American troops in Russian during WWI. Holmes said that the "surreptitious publishing of a silly leaflet by an unknown man" did not constitute speech that posed an imminent threat to the nation. He argued that the Sedition Act amounted to a draconian threat to free speech and the search for truth.

1920-1953: From the end of World War I to the start of the Cold War

The nation underwent profound changes in the 30 years following its victory in WWI to the onset of the 1950s. It experienced in these years both the Great Depression and a world war, which its soldiers won in an international alliance that included, among other allies, Great Britain and the Soviet Union. Both events were unprecedented for their impact on American life and for the changes they wrought in the role of the government, including the Supreme Court. During these years a fundamental shift in power occurred as Congress and the President assumed new authority to fight economic collapse and fascism. Most fundamentally, the Executive branch became the most powerful arm of government. It did this because of Congressional grants of power to newly created agencies administrated by the White House, and because of the deference shown to Congress and the White House by the Supreme Court,

Put simply, the Supreme Court in these years moved from a Court committed to judicial activism--or challenging regulatory legislation by Congress and the states--to a Court that accepted congressional and presidential oversight of the larger economy. In a sentence, the Court all but abandoned long-cherished ideas and legal dictums that were once set in concrete: the sanctity of contracts and private property, the importance of "substantive due process," the validity of unregulated markets, and an abhorrence of laws and actions aimed at redistributing income. This turnaround, or judicial revolution, began in 1937 when the Court started upholding the New Deal legislation of the Roosevelt administration; it also included a increased commitment by the Court to protecting civil liberties and civil rights in a rush of judgments that made it the most activist Court in these matters since Reconstruction.

This new posture by the Court helped to usher in a new era in American history, often called the modern liberal state, or the era of judicial liberalism. Scholars debate the extent to which the Court's new stance regarding the economy and civil liberties was truly revolutionary rather than an evolution towards liberalism that began in the Progressive era and rested on government actions dating to Reconstruction. What is clear, however, is that the Court of the late 1930s and 1940s had completely abandoned its commitment to what historian William Wiecek calls "classical legalism" in favor of "legal liberalism"--a judicial philosophy that questions the ability of judges to have a better grasp on truth than the president or elected representatives. Legal liberalism placed property, contracts, and markets within the reach of government control for the good of the public interest and the general welfare. In doing this, nearly every tenant of traditional judicial thinking was rejected if not summarily cashiered by the liberal Court. This new Court embraced pragmatism, scientific inquiry, the relevance of actions to results, the validity of the social sciences for providing evidence in judicial deliberation, and the importance of skepticism about fundamental truths supposedly buried in a natural law discoverable by clear and reasoned thinking. All of these ideas were rejected, down played, or deemed irrelevant by the Court for dealing with the Great Depression, World War II, and the challenges of the Cold War.

What follows is a discussion of this transition from judicial activism to judicial restraint in economic matters and from judicial restraint to judicial activism in matters of civil rights and civil liberties. The material is covered in seven parts: changes in the Court, Chief Justices, the 1920s, the Court and the New Deal/World War II economy, Civil Rights and Personal Liberties, Legal Realism, and the Cold War Court.

Changes in the Court:

The Taft, Hughes, Stone, and Vinson Courts that spanned the years from 1920 through 1953 experienced significant alterations in the character of its operation and physical setting. Each of the Chief Justices in these years worked hard to produce an efficient federal judicial system. Two significant congressional reform measures passed in the 1920s assisted Taft in his quest for managerial smoothness. The Judicial act of 1922 empowered the Chief Justice to meet in conference on a regular basis with each circuit's senior justices (and in national conferences with all federal judges), to streamline proceedings in appeals, to move district court judges around to deal with backlogs of cases, and to deliver in person an annual State of the Court report to Congress. Three years later, Congress granted the Supreme Court complete authority over which cases it would hear. This greatly relieved docket congestion. Prior to this enabling legislation, it took two years or more for a case to reach the Supreme Court from its initial filing. Chief Justice Taft had long believed that the Court should function as constitutional court in the main, dealing only with issues that would provide precedents for the lower courts and Congress. With the Judiciary Act of 1925, the Court shifted from being a final correction of errors body to a constitutional tribunal.

No major administrative changes occurred in the Hughes, Stone, and Vinson Courts, except for the creation of standard rules of procedure binding on all the courts in the system. This set of rules governs the system's administration, functioning, staff, procedures for argument, disciplinary and disbarment procedures, Writs of Certiorari, jurisdiction, appeals, archival holdings, disposition of cases, budget matters, and terms of the courts. One other change that occurred in 1935 was the creation of a public information officer and staff, which supervises public relations, operates a press room, and handles questions about the Court other than interpretation of opinions and orders.

When William Howard Taft became Chief Justice, he brought with him his dream of erecting a building to house the Supreme Court., equal to the Capital building and the White House in stature and grandeur. After much lobbying, he convinced Congress to commission a Supreme Court Building with him as its building chair. Taft appointed Cass Gilbert, a prominent neoclassical architect, to design the building, knowing that he would come up with something monumental, probably similar to the Beaux Arts version of classicism at the World's Fair exhibit in Chicago in 1893. The building, located in a square block area, east of the Capital's Senate wing, and directly adjacent the Library of Congress, was constructed between 1931 and 1935 at a cost of around nine million dollars.

The majestic building is indeed all that Taft had hoped for, although he never lived to see it. Made of white marble, the structure's tall nave-like central section is flanked by low symmetrical wings, and modeled on the Greek Parthenon. The building stands far back on its lot from the street behind a spacious marble plaza, giving it a sense of being distant from the normal business of government. A grand stairway of 53 steps ascends from the plaza to its central entrance. Two enormous marble blocks stand abreast the stairway, supporting large sculptures by James E. Fraser: a seated male figure, representing the "Authority of Law," and a female figure, classically draped, who symbolizes the spirit of equity. She is titled "Contemplation and Justice." The male holds a tablet in his left hand, and a sword is sheathed at his side, which represents the power of government to enforce the law. The woman holds in her right hand a small statue of "Justice" balancing scales; a law book is placed near her left hand. These figures stand like guardian warriors, evoking awe, fear, and humility in the tiny humans who enter the building or stare up at it as tourists.

The building's stairs reach to a double row of Corinthian columns supporting a triangular pediment that caps the building. Within this pediment are historical symbols and figures, placed just above the words "Equal Justice Under Law." The Goddess of Liberty sits enthroned in the middle of the panel with the scales of justice on her lap. Roman soldiers, representing "Order" and "Authority," flank her on both sides. Next to these protective, male statutes are double sets of figures that represent "Council" and "Research." The toga-clad councilors on the right look remarkably like the sitting Chief Justice, Charles Evans Hughes, and the designer of the pediment, Robert Aitken. Those on the left resemble Cass Gilbert and the lawyer-statesman Elihu Root. The two research figures are John Marshall and William Howard Taft, as young students. The pediment's east side includes words written by Chief Justice Hughes: "Justice, the Guardian of Liberty." This side frieze pays homage to the role of law in civilization, including a trio of ancient lawgivers: Moses, Confucius, and Solon. These three are flanked by other historical figures that symbolize the civilizing benefits for a nation whose citizens live by, and hold respect for, the law.

Massive Bronze entrance doors, which slide into the walls, open into a Great Hall whose coffered ceiling is supported by majestic white columns of marble. At the end of this hall is the courtroom. To reach it, visitors, appellants, litigants, and the public traverse the spacious foyer, which is filled with busts of the Court's deceased Chief Justices, giving the Great Hall a temple-like feeling wherein the nation's deities reside while dispensing justice. Like the walls and the columns, the busts are of white marble.

Three thousand people can be seated in the Court Chambers; the impressive Supreme Court Bench, made of darkly textured and engraved wood, dominates the room from along the east wall. Behind the bench, a row of marble columns fronts a backdrop of heavy red curtains that reach from floor to ceiling. The rest of the floor, which is closed to the public, contains the private justice chambers, conference rooms, a robing room, press rooms, and an assortment of staff offices. Each justice was given a suite of three rooms, a marked improvement over their lack of private quarters in the Capital building. The basement includes space for parking cars, and the second floor features a private dining room and reading rooms. The Court's oak-paneled library and archives occupy the entire third floor. And while interior remodeling has taken place over the years, the building today is much like it was when it opened its doors to the public on October 7, 1935.

Chief Justices:

William Howard Taft came to the Court in the fulfillment of his dream. One of the most qualified of Chief Justices ever appointed, he had served in a remarkable range of positions from U. S. Solicitor General, Judge of the Ohio Superior Court and U. S. Circuit for the Sixth District, Governor of the Philippines, Secretary of War, and President of the United States. He never liked politics, and he agreed to run for president in 1908 largely to satisfy his politically ambitious wife and Theodore Roosevelt. After losing the presidency to Woodrow Wilson, he left politics to teach and to lobby his appointment to the Court as Chief Justice, which he received from President Harding in 1921. So expected was the nomination that it was confirmed the same day it was made, without it ever going to committee. As Chief Justice, Taft sided with the conservatives most of the time but not always. He worked hard to create a consensus (to "mass" the Court) among the justices, and he largely succeeded. Having appointed six justices to the Court as president (more than any president since Jackson), he lobbied Congress and the White House (although done privately) to appoint his personal favorites. Here too he largely succeeded. During his term, 84 percent of the Court's written opinions were unanimous compared to fewer than 20 percent today. Historians credit Taft for his efforts at modernizing the operations of the federal court system and for his managerial efficiency, his role in building the modern Supreme Court building, and for his ability to achieve consensus in Court deliberations. During his tenure, he wrote 249 opinions for the Court, delivering only four written dissents.

Charles Evans Hughes, like Taft, was highly qualified to be Chief Justice when President Hoover appointed him in 1930. Born in Glenn Falls, New York as the son of a Baptist Minister, Hughes graduated from Columbia Law School and became Governor of New York in 1906. He served as professor of law at Cornell, Associate Justice of the Supreme Court from 1910 to 1916, Secretary of State in the Harding administration, and a judge on the international Courts of Arbitration and Justice prior to his appointment as Chief Justice in 1930. His Senate nomination was narrowly accepted on a vote of 52 to 26, principally because of opposition from progressives and southern Democrats and because of his age. At 67, Hughes was the oldest man ever to be selected as Chief Justice. Once at the helm, Evans led a Court that had to grapple with the Great Depression, and Hughes worked at his full capacity on some of the most important cases ever heard by the Supreme Court. During his 11-year tenure, Evans produced 283 opinions. On matters of civil liberties, Hughes was an unmitigated judicial activist who supported the incorporation of the Bill of Rights into the Fourteenth Amendment in order to make them binding upon the states. On economic issues, Hughes had a mixed record, supporting limits on the regulatory powers of the states and the federal government until 1937, when he switched sides. This move by Hughes and Associate Justice Owen J. Roberts was so dramatic as to be a revolutionary break for the Court in the opinion of many legal historians. Thereafter, the Court generally has deferred to the will of the people as expressed by federal statutes. This shift coincided with the failed effort of President Franklin Roosevelt to add new justices to the Court and the death or retirement of the Court's most conservative members. Hughes is remembered as a "great Chief Justice" because of his legal acumen, leadership skills, and intellectual flexibility at a time of profound national crisis.

Harlan F. Stone served only five years as Chief Justice (1941-46), but he had been on the Court as Associated Justice since 1925. Born in Chesterfield, Ohio, to a farm family, Stone was expelled from the Massachusetts Agricultural College for assaulting a college chaplain. This unfortunate incident sent him away from a life in farming to Amherst College and, after teaching high school chemistry for a few years, to Columbia University Law School. After 13 years as Dean of Columbia Law School, Stone was appointed U. S. Attorney General in 1924, where he served for one year before his nomination to the Supreme Court by President Coolidge. He was confirmed by a vote of 71 to 6, despite having worked extensively over the years as legal council to J. P. Morgan and other Wall Street bankers. Stone had occupied every seat on the Supreme Court Bench from that of its junior member onward from 1925 to 1940, and he was the only Chief Justice ever to have served in two prior Courts, which gave him a wealth of experience. Still, he was less effective than either Taft or Hughes in management of the Court, allowing the un-ending airing of views in conference. Unlike Hughes, who kept a firm grip on the judicial conferences, Stone often lost control. As a result, his Court was frequently divided and given to quarreling in public during proceedings. His personal opinions were almost always in the middle. He objected in his earlier years to the laissez fair obsession of conservatives on the Taft and Hughes Courts while voicing concern about the introduction of a liberal political bias in civil liberty cases in the 1940s. His tenure as Chief Justice was one of the shortest in history. Hughes suffered a cerebral hemorrhage on April 22, 1946, while reading a dissent from the bench; he died the next day. He is remembered as a dutiful but largely inapt manager of a Court that deferred to the legislative and the executive branches during the world war.

Fred M. Vinson came to the Court in 1946 with much administrative experience and the personal friendship of President Harry S. Truman. He was born poor in Louisa, Kentucky, to a father who made his living as a jailor. Earning his college and law degree from Centre College in Danville, Kentucky, Vinson practiced law and entered politics, severing as a city attorney and then district attorney before being elected as a Democrat to the House of Representatives in 1923. Defeated for reelection in 1928, Vinson returned to the House in 1931, where he remained for eight years more. As an ardent New Dealer, FDR appointed Vinson to a judgeship on a federal appeals court in 1939, and then to a string of positions in his administration: Director of the Office of Economic Stabilization, Federal Loan Administrator, Director of the Office of War Mobilization and Reconversion, and Secretary of the Treasury under President Truman. Although admired by Truman, Vinson's fellow justices did not respect him at first. They thought that he was just a political crony, and lazy on top of that. There was more than a little truth to these charges. He let his clerks have a major hand in writing opinions, appointed additional clerks, and reduced the Court's docket substantially (from the 200 cases annually in the Hughes Court to 100 cases under Vinson). Regarding cronyism, he voted against the majority, for example, in the controversial steel seizure case when Truman tried to federalize the steel industry to prevent a strike that threatened steel production during the Korean War (Youngstown Sheet & Tube Co. v. Sawyer (1952). Although generally a moderate on economic and personal liberty issues, Vinson strongly supported judicial activism on civil rights. Nor did the Court move away from its deference to legislative and executive action regarding the economy. President Truman valued Vinson's loyalty and work as Chief Justice. In 1952, Truman tried to persuade Vinson to consider running as the Democratic candidate for president. Vinson declined the offer, and he died suddenly from heart failure on September 8, 1953.

The 1920s:

The Supreme Court of the 1920s, headed by Chief Justice William Howard Taft, former Republican president (1909-1913), complemented the conservative, pro-business policies of the Harding, Coolidge, and Hoover administrations in the 1920s. During this era of "mass society," the economic philosophy of laissez faire dominated government behavior at the national level. As Americans became caught up in the new consumer society of radios, silent movies, sewing machines, refrigerators, paved roads, Ford automobiles, bathtub gin, flappers, a resurgence of religious fundamentalism, nativism, the new literature of Hemmingway and Faulkner, and a roaring stock market, the nation's government and the Supreme Court catered to the elites of the corporate world. The mood was best summed up by the words of Calvin Coolidge, who stated his philosophy of government with an aphorism: "The business of America is business." When Herbert Hoover, the Secretary of Commerce in the Harding and Coolidge administrations and a wealthy mining engineer prior to WWI, ran for president in 1928, he confidently predicted that poverty would soon disappear in the nation due to the benefits of the unregulated capitalist economy.

As in no other time in American history, the corporate leaders of the business world dominated the nation. Harding and Coolidge appointed corporate executives to their cabinets and to the government agencies created during the Progressive era to regulate business, such as the Federal Trade Commission. Government policies favored tax cuts for the rich, limited government expenditures, a high protective tariff, and court injunctions barring strikes by labor while blocking price support programs for American farmers. The Secretary of the Treasury throughout the 1920s, Andrew Mellon, for example, who crafted the nation's tax reduction policy, came from one of the wealthiest banking families in the nation.

The Taft Court was solidly pro-business and anti-labor, and easily so because its membership included only two liberal justices: Louis D. Brandeis and Oliver Wendell Holmes. The conservative members, most of whom were appointed by Coolidge and Harding, were led by four entrenched advocates of free enterprise and the sanctity of property rights: William Devanter, James C. McReynolds, George Sutherland, and Pierce Butler. Their opponents came to call these staunch conservatives the "Four Horsemen of the Apocalypse." Together with Taft, who often occupied a centralist position, and Edward Terry Sanford, who generally followed Taft's lead, and Joseph McKenna, an elderly holdover serving since 1898, the Court encountered few obstacles to its conservative agenda. Both Brandies and Holmes continued to offer important dissenting opinions, many of which paved the way for the onset of so-called "legal realism," which characterized the Court after 1937.

The range of pro-business decisions blocked effectively the Progressive-era regulatory measures inherited from the Wilson years. Its decision in FTC v. Curtis Publishing Co. (1923), for example, defanged the Federal Trade Commission's investigative powers by allowing federal courts to survey evidence independently of the FTC. This in effect enabled corporations to tie up the FTC indefinitely by introducing new evidence and challenging FTC findings. In an important rate-setting case, Southwestern Bell Telephone Co. v. Public Service Commission of Missouri (1923), the Court blocked state regulation of rates by holding that the regulatory commission had under-assessed the value of corporate profits. This set the standard for numerous appeals by corporations to federal courts on the grounds that the rates set by public commissions were unfair. These tactics all but eviscerated state rate-setting commissions.

The Court supported, ironically (in view of its opposition in general to regulation), federal authority over state authority in ways that generally benefited big business. It upheld the right of the Interstate Commerce Commission to set rates on the national level that were higher in many areas than rates established by state regulatory commissions (Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy Railroad, 1922; and Colorado v. United States, 1926). It also struck down state legislation that "unduly burdened" interstate commerce or that hampered the operations of a national market for business (Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 1927).

The Court's treatment of labor proved to be reactionary if not fundamentally hostile. The Court rejected that provision of the pro-labor Clayton Act of 1914, which forbade the use of antitrust laws to block Unions from seeking "legitimate" goals. Section 20 of this Act specifically prohibited federal courts from granting injunctions in labor disputes to prevent picketing or primary boycotts. When unions in New York boycotted the products of a Michigan firm under strike by its workers, the Court affirmed an injunction granted by a lower court. It reasoned that the action by New York unions was a secondary boycott not permitted by the Clayton Act (Duplex Printing Press Company v. Deering, 1921). It also struck down a state statute that banned injunctions against peaceful picketing. It held that such a state law was an arbitrary and capricious exercise of state power, resulting in a substantial violation of private property rights (Tuax v. Corrigan, 1921). In 1925, when the United Mine Workers tried to organize workers in southern coalfields, the Court ruled that a strike against mine owners would interfere with interstate commerce in violation of the Sherman Antitrust Act.

The Court boldly asserted its opposition to legislation constraining business when it struck down a child labor law passed by Congress.. This law attempted to get around an earlier Court objection to a similar law by basing it on the government's taxing powers rather than the Commerce Clause of the Constitution, which the Court had previously rejected. But the Taft Court ruled it unconstitutional to use taxing powers to obtain goals that could not be achieved under the Commerce Clause (Bailey v. Drexel Furniture, 1922). More controversial was the Court's attack on a minimum wage statute for women in the District of Columbia. In this decision, Justice Southerland announced that women no longer needed special protection because the Nineteenth Amendment had fully emancipated them (Adkins v. Children's Hospital, 1923). Thereafter, the Court struck down dozens of state laws regulating business as unconstitutional violations of the Due Process Clause of the Fourteenth Amendment.

According to the Court, laws regulating business deprived individuals (corporations) of private property in violation of the Constitution, unless it could be shown that a larger public interest demanded such regulation. The Court in numerous cases narrowly interpreted this public interest test. In Wolff Packing Company v. Court of Industrial Relations (1923), the Court struck down a Kansas law requiring arbitration by a special Industrial Court in labor disputes in essential industries, such as food, clothing, and shelter. The Court found no grounds for identifying such industries with the public interest. It did the same when New York tried to regulate ticket agencies (Tyson v. Banton, 1927), when New Jersey tried to regulate employment agencies (Ribnik v. McBride 1928), and when Tennessee tried to fix gas prices (Williams v. Standard Oil Company, 1929). The one exception to this pattern was the Court's upholding municipal zoning codes, contending that such regulation actually enhanced the value of all adjoining property rather than depriving owners of vested value (Euclid v. Ambler Realty, 1926).

Surprisingly, the Taft Court was somewhat more protective of civil liberties and civil rights. For some time, progressives had argued the idea that the Fourteenth Amendment guaranteed individual liberties beyond the right to contract ... Justice Louis D. Brandeis had said as much in several powerful dissenting opinions, notably in Gilbert v. Minnesota (1920), holding that the Due Process Clause of the Fourteenth Amendment included more than the protection of property. In his mind, the authors of that amendment intended to apply the Bill of Rights to the states as well as to the federal government. This idea that the Bill of Rights is incorporated into the Fourteenth Amendment and is thus binding on the states is known as the "incorporation doctrine." It was first enunciated though not clearly established by the Taft Court in a series of cases, starting with its decision to strike down a Nebraska law that forbade the teaching of foreign languages in elementary schools (Meyer v. Nebraska, 1923). Two years later, the Court overturned an Oregon law sponsored by the Ku Klux Klan requiring children to attend public schools (Pierce v. Society of Sisters, 1925).

The doctrine of incorporation was not firmly embraced, however, as demonstrated by the Court's conservative position in several freedom of speech and press cases. In Gitlow v. New York (1925), the Court upheld the conviction of a prominent member of the American Communist Party for publishing a radical newspaper in violation of the state's Criminal Anarchy Act. It also upheld, in Whitney v. California (1927), the conviction of Charlotte Anita Whitney for joining the Communist Labor Party in violation of the California Criminal Syndicalism Act of 1919.

In Whitney, although Justice Brandeis wrote a concurring opinion rather than dissenting, his words eloquently express a defense of intellectual freedom based on the benefits conferred on society by the free exchange of ideas. For Brandeis, a state could only curtail speech if the words posed a clear an imminent danger to society, not only to property interests. In order to meet this test, the state was responsible for developing objective standards. This view of the merits of free speech differed from the "free marketplace of ideas" articulated by Justice Holmes a few years earlier. For Brandeis, free speech (of all sorts and not just political) was fundamental to a free people and the essence of citizenship for the simple reason that a free citizenry was an informed citizenry--a citizenry exposed to all viewpoints and opinions. Brandeis's concurring opinion--that free speech is essential to American democracy--became in time the fundamental principle used by later Courts in First Amendment decisions.

Enforcing the Prohibition Amendment and dealing with issues of domestic surveillance of suspected enemies of the state, more imagined than real, confronted the Taft Court with questions about federal jurisdiction in crime and the criminal law provisions of the Fourth through the Eighth Amendments. Traditionally, these Constitutional Amendments had never been applied to the states, and the Court preferred in the 1920s to keep it that way. But the open defiance of the Volstead Act of 1920 (which enforced the Eighteenth Amendment) by bootleggers and smugglers who crossed state lines posed new challenges. For one thing, it was almost impossible to obtain a timely warrant to search the cars used in smuggling bootlegged liquor, so the Court allowed, in Carrol v. United States (1925), an automobile exception to the Fourth Amendment's rule that no search or seizure take place without a warrant

It also permitted the use of a new technology, wiretapping, to pry into a suspected criminal's private affairs (Olmstead v. United States, 1928). Justice Holmes objected to Taft's majority opinion that wiretapping was not entry, which would have violated the Fourth Amendment, but only an enhanced sense of hearing. For Holmes, it was a "dirty business." Brandeis wrote that 'it is less evil that some criminals should escape than that the government should play an ignoble part.... If government becomes a lawbreaker, it breeds contempt for law." Most importantly for Brandeis, wiretapping violated a fundamental right to privacy enshrined in the Fourth Amendment, "the right to be let alone--the most comprehensive of rights, and the right most valued by civilized man." The Supreme Court eventually articulated this view of privacy as a liberty protected by the Bill of Rights in Griswold v. Connecticut (1965).

On matters of race and ethnicity, the Court turned a deaf ear. It did allow in Moore v. Dempsey (1923) for a federal court to hear the appeal of five African Americans convicted of murder in Arkansas, holding that the threat of mob violence had tainted the proceedings. It also struck down a Texas law banning blacks from voting in the Democratic primary (Nixon v. Herndon, 1927), but such rulings were few. More typical was the Court's decision upholding restrictive housing covenants, which were used to prevent the sale or lease of property to blacks (Corrigan v. Buckley, 1926); laws excluding Japanese, East Indians, Filipinos, and pacifists from naturalization (Ozawa v. United States,1923; United State v. Bhagat Singh Thind, 1923; Toyota v. United States, 1924; and United States v. Shwimmer, 1929); and state laws in western states prohibiting land ownership by aliens (Terrace v. Thompson, 1923). Perhaps its most callous display of unconcern for civil liberties came with its decision to uphold the sterilization of a young white woman, a rape victim, whom the state of Virginia had declared feeble minded (Buck v. Bell, 1927). This woman went on to lead a productive life, did well in school, and was not the imbecile (defined legally as the mental age of a six-year-old) depicted in the hearing. This tragic case of misguided justice occurred in a day when sterilization was a controversial means of improving the race (Eugenics). The Court upheld the Virginia ruling 8 to 1. Only Pierce Butler dissented without opinion.

The Court and the New Deal/World War II Economy:

William Howard Taft died in 1930, just a few weeks after retiring as Chief Justice of the Supreme Court. In his last days, as the Great Depression overtook the nation, and as his friend and president, Herbert Hoover, struggled to understand and come to grips with the economic debacle, Taft worried obsessively about the Court's future. He feared that the Court's conservative legacy would be undermined in the hands of a Chief Justice less committed than he to classical conservative values. He was greatly relieved when he learned from Hoover that Charles Evans Hughes, a conservative Republican and the former governor of New York, an Associate Justice of the Supreme Court from 1910 to 1916, Secretary of State under Presidents Harding and Coolidge, and Judge of the Permanent Court of International Justice from 1928 to 1930, would succeed him as Chief Justice.

Hughes opponents were not as happy. They believed that Hughes--although born to modest circumstances, as the son of Baptist minister--had become just another stooge of the rich and the powerful because of his work from 1925 to 1928 as a corporate lawyer. Others thought he was too old. At age sixty-seven, he was the oldest person ever appointed chief justice. The vote for his confirmation was a narrow 52 to 26.

When Hughes took the oath of office, the nation was nearly on its knees, caught up in an economic depression that was worldwide and deepening. By 1932, over one-quarter of the nations working people were unemployed, thousands of banks had failed--wiping out the life savings of millions of Americans, and 90 percent of the value of stocks had disappeared in the last three years. Countless numbers of people lost their houses and their farms in foreclosure proceedings. Millions stood on the brink of starvation in bread lines that stretched for blocks in every American city. The nation's standard of living was cut in half, as production of goods dropped by at least one third. And no one seemed to know what to do. Capitalists and corporate leaders urged caution, hoping that the business cycle would eventually swing upward if not interfered with by government regulation. Progressives and socialists urged government action and radical collectivist solutions to alleviate human suffering and restore economic confidence. Some Americans even looked to Italian and German brands of fascism for answers.

President Herbert Hoover seemed uncertain about what to do and how best to do it. Although he did advocate government action and introduced programs like the Reconstruction Finance Corporation, support programs for farmers, public works, and relief appropriations, they were far too little in scope or funding to have much impact. The only significant government action under Hoover was granted over his objection: the veterans' bonus. He lost public confidence completely when he callously allowed soldiers to physically route WWI veterans encamped in Washington D. C. in support of the government bonus payment.

It was in this atmosphere of depression and despair that the nation elected the reform governor of New York, Franklin D. Roosevelt, to the presidency in 1932. This election swept into office a force unlike any ever known in American politics, including an assortment of new thinkers and old-line progressives. Determined to try new ideas, to apply new solutions, and to experiment at every level, the Roosevelt administration launched a program of government involvement that ushered in the modern era of liberalism. Its hallmarks are a series of government programs aimed at recovery, relief, and reform. In all areas, however, presidential actions rested on a program of massive government regulation of the economy.

In his first hundred days, Roosevelt pushed through Congress a legislative program of unprecedented scope, which is known as the New Deal. The National Association Recovery Act (NIRA) and the Agricultural Adjustment Act (AAA) were administrative agencies assigned broad oversight powers by Congress. The AAA introduced price subsidies and production controls to protect farmers from the uncertainties of the free market. The NIRA set up "cooperative" codes of production designed to eliminate competition in order to restore confidence to manufacturers. It included a guarantee of collective bargaining for workers and a large federal public works program (the PWA). Other reforms introduced early on by Roosevelt included a regulatory agency to oversee the stock market (Securities and Exchange Commission), the Federal Deposit Insurance Corporation to guarantee the savings of the middle class, and a series of relief measures to help the 15 million people unemployed, such as the Civilian Conservation Corps (CCC), the Civil Works Administration (CWA), and the Federal Emergency Relief Administration (FERA). He also established the Tennessee Valley Authority (TVA), a breathtaking experiment in federally administered flood control, public electricity, and regional planning.

In what some historians refer to as the Second New Deal, Roosevelt launched in 1935 a surge of new initiatives. He did this in response to the public demand for more vigorous action in the face of the lingering depression. The National Labor Relations Act (aka Wagner Act) strengthened the collective bargaining protections for workers; and hundreds of thousands of new jobs were created with the Works Progress Administration (WPA). The Social Security Act set up a system of old-age pensions while new welfare programs provided unemployment insurance and aid for dependent children and the handicapped. With the onset of a severe downturn of the economy in 1937, Roosevelt began attacking corporate monopolies with a new fervor, creating the Temporary National Economic Committee as a public investigative body. He also instructed the Justice Department to aggressively prosecute monopolies.

Historians disagree as to the impact and effectiveness of the New Deal measures in ending the Great Depression. Critics on the right contend that Roosevelt's programs postponed economic recovery because they undermined business confidence and disrupted the natural tendency of a free market economy to provide market and price remedies to business downturns. Critics on the left claim that New Deal spending was never enough to turn the economy around and that most of its programs were aimed at sustaining the capitalist system by providing insurance for the middle-class rather than eradicating poverty. Both the left and the right point out that while the New Deal did not end the Great Depression--only the massive government spending of WWII did that, it did change the role of government in American life in fundamental if not revolutionary ways. No longer would there be any question but that the federal government was responsible for assisting the poor, regulating the economy, and serving as a broker between the competing economic interests in the nation. It produced a new political coalition in support of a new set of ideals, known as liberalism, that has dominated the politics of the nation from the 1930s even to the present.

Initially, the Supreme Court responded to Roosevelt's efforts to fight the Great Depression with trepidation, obstinacy, and mixed reactions. Its conservative majority was bitterly opposed to all efforts by state and federal government to regulate business and the economy (Butler, McReynolds, Sutherland, and Van Devanter), while the liberals on the Court (Brandeis, Harlan F, Stone, and Benjamin N. Cardozo) were more willing to allow government intervention. Chief Justice Hughes and Justice Owen J. Roberts, were opposed to regulation but not to the point of absolute opposition. This less than solid perspective on government action gave Hughes and Roberts tremendous power on the Court as swing voters, which they used consistently from 1932 to 1937 to join with the "Four Horsemen" to block government regulation at all levels.

The litany of cases in which the Court applied a strict scrutiny to judging issues of economic regulation was long and broad. They found that Okalahoma could not require ice manufactures and distributors to be licensed by the state because the ice business did not affect the public interest (New State Ice Co. v. Liebmann, 1932). This law was passed prior to Roosevelt's term, but it was a precursor of things to come. The Court took on Roosevelt and his New Deal legislation directly when it struck down the so-called "hot oil" (oil produced in excess of limits set to raise prices) provisions of the NIRA, which empowered the president to stop the interstate shipment of the disputed product (Panama Refining Co. v. Ryan, 1935). Four months later, on "Black Monday," May 27, 1945, the Court invalidated the National Industrial Recovery Act in Schechter Poultry v. United States; struck down the Frazier-Lemke Mortgage Act in Louisville Joint Stock Land Bank v. Radford, and curtailed the president's power to remove members of regulatory commissions in Humphrey's Executor v. United States.

Schechter laid out the philosophical bases of the conservative opposition to the New Deal. The government's attempt to prosecute a Brooklyn poultry producer charged with selling sick chickens and violating the poultry codes on wages and hours was dismissed as unconstitutional on several grounds: that the nation's economic crisis did not justify laws that enlarge constitutional power, that Congress's delegation of its legislative powers to the president violated checks and balances, and that the regulation in this case was on local commerce that had only an indirect impact on interstate commerce. In Louisville, the Court held that a federal law regulating bank foreclosures on bankrupt farms violated the Fifth Amendment's Due Process Clause by taking property of the mortgage holders without judicial proceedings in each case. In Humphrey's the Court held that Roosevelt's removal of a Federal Trade Commissioner who opposed the New Deal was a political act unrelated to the person's job performance.

The prospect for the New Deal worsened when the Court held unconstitutional a tax on processors of farm products (United States v. Butler, 1936). The revenue from this tax was used to fund price supports for farmers who curtailed or limited production according to the codes of the Agricultural Adjustment Act. By ruling that the tax was an instrument of social and economic policy rather than a source of revenue only, the Court essentially pulled the rug out from the AAA. The Court followed this decision by striking down measures to regulate the coal industry, which it defined as local operations beyond the power of Congress (Carter v. Carter Coal Company, 1936). Shortly thereafter the Court deemed unconstitutional the Municipal Bankruptcy Act of 1934 , which it saw as an invasion of state sovereignty (Ashton v. Cameron County Water Improvement District, 1936). When the Court struck down a New York minimum wage law for women and children (Morehead v. New York ex rel.Tipaldo, 1936), Roosevelt feared that the Court would soon challenge such bedrock New Deal measures as the Social Security Act of 1935, the Securities Exchange Commission, and the Labor Relations Act, all of which spelled permanent reform with far-reaching consequences.

It was in this context that Congress and Roosevelt moved to control the Court. Some of his supporters wanted a constitutional amendment to reign in the Court's independence, but FDR preferred something quicker and more controllable. On February 5, 1937, Roosevelt announced his plan to appoint 50 new federal judges, including six new justices to the Supreme Court. He justified the proposal as helping those judges over seventy years of age better manage their workload. This aroused such opposition from all members of the Court--including its liberal judges--that FDR eventually admitted that his court-packing scheme was mainly about ensuring the survival of his New Deal programs. Faced with opposition at every turn, it was clear that the plan would be defeated, which it was in the Senate on July 28, 1937.

In the midst of the debates over the court-packing proposal, the Court began to hand down a series of rulings favorable to the New Deal. The clearest signal that the swing voters on the Court were ready to support regulation was its 5 to 4 decision in West Coast Hotel v. Parrish (1937), which sustained a Washington state minimum-wage law nearly identical to the one struck down in Morehead. Called the "switch in time that saved nine," this decision turned the Court away from the "substantive due process" approach to economic regulation. Two weeks later, the Court interpreted the Commerce and General Welfare clauses to permit Congressional regulation of labor relations in the steel industry, thus upholding the National Labor Relations Act (NLRB v. Jones & Laughlin Steel Corp, 1937). This decision, which was one of five cases testing the authority of the National Labor Relations Board, defined steel production, and indeed most local manufacturing linked to interstate business, as part of a "stream of commerce" impacting the national economy. Jones & Laughlin overturned the "liberty of contract" precedent set by Lochner once and for all. Then six weeks later, the Court upheld unemployment insurance (Steward Machine Company v. Davis, 1937) and the old-age provisions of the Social Security Act (Helvering v. Davis). Thereafter, the Court supported every federal regulation law it heard, abandoning completely its opposition to the New Deal.

This transformation of the Court in 1937 was so quick and so complete that historians have labeled it the "judicial revolution of 1937." Defenders of the Court contend that it was not an overnight change. They point to the Court's support for the TVA in February of 1936, months before Roosevelt announced his court-packing plan (Ashwander v. Tennessee Valley Authority) and its earlier upholding of Congress's repudiation of the gold standard in both private and public contracts (Norman v. Baltimore & Ohio Railroad Co., Nortz v. United States, 1935; and Perry v. United States, 1935). In these cases, the Four Horsemen held firm but Hughes and Roberts joined the liberal justices--and Hughes did so with force and an unmatched eloquence that indicated the depth of his transformation. Additionally, Justice Roberts had cast his vote in West Coast Hotel two months before FDR went public with his court-packing plan. Still, there can be no doubt but that 1937 was a major turning point for the Court. After that year, the Court never again tried to check federal regulatory power until the 1990s, and then only modestly.

Among the reasons for the change in the Court in 1937 (besides the threat from supporters of the New Deal and FDR) was the retirement and death of its conservative members. Justice Van Devanter retired in May of 1937. FDR replaced him with Senator Hugo Black of Alabama, a staunch New Dealer. With the resignation of Justice Southerland in 1938, Roosevelt put another loyalist on the Court, his Solicitor General Stanley F. Reed. Justice Cardozo died in July 1938, as did Pierce Butler in November of 1939. Brandeis had retired ten months earlier. These seat were filled by Roosevelt loyalists: Harvard law professor Felix Frankfurter (a member of FDR's brain trust); William O. Douglas, former chair of the Securities and Exchange Commission; and Frank Murphy, the Attorney General. By 1940, only one of the original Horseman remained on the bench, Justice McReynolds, who refused to resign until Roosevelt's election to a third term in 1942. McReynolds had desperately hoped to rob FDR of the opportunity to name his successor to the Court. In the years from 1941 to 1944, FDR appointed every member of the Court except for Owen J. Roberts, who stayed on the Court until 1945, and Harlan Fisk Stone. Both men had served through the 1930s. When Hughes retired in June of 1941 at age 79, Roosevelt nominated Stone to take his place as Chief Justice.

With the onset of WWII, followed by the Cold War that began immediately after, the Court continued to defer to Congress and the Executive branch. It was an easy shift to make because of the Roosevelt's vigorous response to the expanding war after 1940, which placed the nation on a war-basis economy and a war-induced alliance with Great Britain. He did this largely by his own actions, at least at first, in using the executive order in domestic matters and the executive agreement in foreign affairs. Congress then quickly ratified most of the actions taken by FDR under the cloak of executive orders and executive agreements.

No president in history, neither Wilson nor Lincoln, used these orders and agreements more aggressively or more completely than did FDR. By 1943, FDR had imposed on the nation a complex and comprehensive system of economic regulations, placing almost all decision-making regarding the national economy in the hands of the president. Out of this emerged the modern "national security constitution," which--while building upon the changes introduced in fighting the Great Depression--greatly shifted power from Congress to the White House. Congress went along with this shift in power, although it also expanded its regulatory authority over interstate and foreign commerce, largely in support of the president's war production plans.

The Court demonstrated its support for Roosevelt's unprecedented exercise of war-time authority by upholding the constitutionality of the Emergency Price Control Act of 1942, which set prices on domestic production to hold down inflation (Yakus v. United States, 1944). The question involved the congressional authorization of lawmaking authority to an administrative agency run by the president, namely, the Office of Price Administration. By a vote of 6 to 3, the Court supported this transferal of unprecedented power over private property to the executive branch. It rejected the challenge to the OPA by a Massachusetts meat dealer convicted of violating the price limits set by the OPA on beef. Earlier, in United States v. Belmont (1937) and United States v. Pink (1942), the Court upheld the president's use of executive orders and agreements to deal first with the economic depression and then the war.

The Court also affirmed the expansion of congressional regulatory power over interstate and foreign commerce under the Supremacy Clause of the Article VI, in which federal power trumps state power in matters of foreign affairs (Hines v. Davidowitz, 1941, and Rice v. Santa Fe Elevator Corp, 1947). Regulations in this realm fell within the "preemption" power of the federal government even in cases not involving a formally ratified treaty, such as federal control over the minerals (oil and gas) found in subsurface coastal lands (United States v. California, 1947; United States v. Texas, 1950). Congress ceded this claim to title back to the states in 1953. The Court also affirmed the so-called "dormant commerce power" of Congress to limit state regulatory interference with the national market. For example, the Court rejected Arizona's bid to regulate the length of trains passing through its borders (Southern Pacific Co. v. Arizona, 1945) as well as all attempts by states to legislate protectionist rules governing the transport and sale of products within state boundaries derived from a national market (H. P. Hood & Sons v. DuMond, 1949)

Presidential authority continued to expand after the war with little opposition from the Court. The one exception occurred when President Truman moved to seize the nation's steel mills during the Korean War (Youngstown Sheet and Tube Co. v. Sawyer, 1952). The Court's divided opinion (6 to 3) found neither constitutional nor congressional support for Truman's actions. Justice Jackson presented a concurring opinion that has had lasting influence. His neatly articulated scale for judging the balance between presidential and congressional power laid out three points to consider in future cases. Firstly, when Congress provides explicit or implicit authority to the president, the actions are clearly valid; secondly, when Congress is silent on the matter, there is reason to be suspicious; and thirdly, whenever the president defies the explicit or implied intent of Congress, there is little reason to uphold such actions.

Civil Rights and Personal Liberties:

Although the Court shifted dramatically after 1937 away from judicial activism in overturning state and federal regulations of the economy, it became much more active on behalf of personal liberties and civil rights. Indeed, this new activism contrasted starkly with its deference to state power in economic matters. Its guardianship posture defending freedoms of speech, press, and religion from interference by government, along with its active use of the Equal Protection Clause to protect African Americans from discrimination at the hands of the state and private citizens, provided a foundation for more broad-ranging decisions by the Court in the 1950s and 1960s. Because of its deference in matters economic to Congress and the President while vigilantly, at times, protecting personal liberties and civil rights, the Hughes Court is considered by many legal historians to have been the first "modern Court."

Although the Court's protection for personal liberties rested on the foundation established in the 1920s, the Hughes Court moved steadily forward in regard to freedoms of speech and the press as well as the right to counsel. In Near v. Minnesota (1931), the Court invalidated a "gag law" preventing journalists from running stories that accused Minneapolis officials of corruption. The following year, the Court required states to provide lawyers to defendants accused of capital offense crimes based on the Due Process Clause of the Fourteenth Amendment and right to counsel guarantee of the Sixth Amendment (Powell v. Alabama, 1932). This served as the basis for ordering new trials for nine African American men accursed of raping a white woman (Scottsboro Boys). In DeJonge v. Oregon (1939), the Court overturned the conviction of a Communist accused of violating an Oregon statute, by invoking the First Amendment's protection of speech and assembly. The law in question forbade the gathering of persons advocating the overthrow of the government.

Several other race-related cases further established the Hughes Court on the side of civil rights. In the second Scottsboro Boys' case (Norris v. Alabama, 1935), the Court reversed the conviction of one of the young men in the rape case because both the grand jury (that indicted Norris) and the trial jury (that convicted him) had systematically excluded African Americans. In Missouri ex rel. Gaines v. Canada (1938), the Court turned down the offer of the state of Missouri to pay the out-of-state tuition for a black student rather than admit him to the state's all-white law school. Missouri also planned to erect a separate law school for blacks rather than integrate its students. The Court insisted that Missouri admit Gaines in strict observance of the "separate-but-equal" test. This case set the stage for the invalidation of school segregation by the Warren Court in Brown v. Board of Education (1954).

A Texas law that defined the Democratic Party as a private entity able to determine its own members and thereby prevent blacks from voting in party primaries was rejected as a denial of equal protection for African Americans under the Fourteenth Amendment (Nixon v. Condon, 1932). This ruling was countered in 1935 when the Court, in a vote of 8 to 1, allowed Texas to exclude blacks from participation in the party's nominating convention, saying that the Democratic party was a voluntary association not under state control (Grovey v. Townsend). This ruling questioned the length the Court wished to go to undermine constitutionally protected rights of political association in the interests of racial equality. The Court subsequently overruled Grovey in 1944 (Smith v. Allwright), when it upheld federal prohibition of the white primary under the Fifteenth Amendment. (See the discussion of Smith later in this essay)

From the appointment of Harlan Fiske Stone as Chief Justice in 1940 through the term of his successor, Fred M. Vinson (1946-1953), the Court continued its policy of deference on economic issues while defending personal liberties and civil rights, with some notable and important exceptions. The nation's involvement in World War II explains much of its inconsistency amidst its overall progressive holdings. In the matter of protecting speech, for example, the Court held that a state could place "categories" of speech, such as obscenity, profanity, libel, and fighting words, beyond the reach of the Fifth Amendment because such speech threatened social order without promoting the search for truth (Chaplinsky v. New Hampshire, 1942). As a result, the Court sometimes upheld convictions for rabble- rousing speech (Feiner v. New York, 1951) while protecting, in another case, a speaker attacked by a mob for similar speech (Terminiello v. Chicago, 1949). On the other hand, the Court treated slanderous speech or libelous statements aimed at people identified by race or religion as group libel (Beauharnais v. Illinois, 1952), which could be prohibited by state law. Yet laws permitting the censorship of stories dealing with "bloodshed, lust, or crime," as well as a blasphemy law for "sacrilegious" films, were ruled unconstitutional (Winters v. New York, 1948; Joseph Burstyn, Inc. v. Wilson, 1952).

Surprisingly, the Court went out of its way to protect political speech in these years, reversing in one case the conviction of a Nazi propagandist (Viereck v. United States, 1943) while protecting, in another, the publication of virulently racist, anti-Semitic smears by Nazi fanatics (Hartzel v. United States, 1944). The Court stopped the deportation of active members of the Communist Party (Schneiderman v. United States, 1943) and the pro-Nazi Bund (Baumgartner v. United States, 1944). It also intervened again and again to stop the government's efforts to deport the radical labor leader Harry Bridges, contending that there was no evidence of any criminal conduct (Bridges v. Wixon, 1945; Bridges v. United States, 1953). In some cases, the Court protected conscientious objectors (Estep v. United States