BOOKS:
The Politics of the Supreme Court

By Keith E. Whittington

Keith Whittington on The Warren Court and American Politics by Lucas A. Powe, Jr.

Lucas A. Powe Jr.
The Warren Court and American Politics.

Earl Warren casts a long shadow. Even if Warren had never been appointed chief justice of the United States, he still would have been a major figure in twentieth century American politics. In the 1920s and 1930s, he developed a reputation as a tough but progressive da in Alameda County, California. In 1938, he swept into the state’s attorney general’s office, having won both the Democratic and Republican nominations. There he continued his fight against vice, corruption, and organized crime, but is best known for his role in strongly supporting the wartime internment of Japanese-Americans. In that same year of 1942, Warren was elected governor of California for the first time. Although he unsuccessfully advocated the creation of a comprehensive state health insurance system and the prohibition of racial and gender employment discrimination, he was far more successful in overseeing the great wartime and postwar California boom. Voters rewarded him with an unprecedented three terms in office. In 1948, he was the Republican nominee for vice president in Thomas Dewey’s surprising loss to Harry Truman. But in 1952, his presidential ambitions were dashed by the Eisenhower surge. At the age of 62, Warren’s political career had reached a plateau.

At first glance, an appointment to the Supreme Court would seem to be an odd capstone to Warren’s career. Although a wildly popular California politician, he was known more for being likeable and honest than for any special legal acumen. In 1953, the court was only 16 years removed from the near miss of Roosevelt’s court-packing plan, and the relatively supine New Deal court would hardly seem like an attractive home for a career politician who harbored presidential aspirations. Eisenhower himself thought the court would be "pretty rarefied" for Warren. But the president had offered the governor the first opening on the court as a consolation prize for having been excluded from the Cabinet, and some Republicans, such as Richard Nixon, were eager to get Warren out of California and, hopefully, out of politics. Having already decided that three terms as governor were enough, Warren held Ike to his promise when the first vacancy on the court proved to be that of chief justice. No one could have foreseen that Warren would come to rival the great John Marshall as the most significant chief justice in the court’s history.

In this readable and valuable history, University of Texas law professor Lucas Powe seeks to put the Warren court in its proper political context. In his preface, Powe bemoans the loss, "over a quarter century ago," of a once "flourishing genre of Supreme Court scholarship intertwining the Court and politics" nurtured primarily by political scientists. At least since the 1930s, political scientists had been deeply concerned with what Martin Shapiro (now in the Berkeley law school) once termed "political jurisprudence," the effort to treat the Supreme Court "as part of the American political process, rather than as a unique body of impervious legal technicians above and beyond the political struggle." Scholars such as Princeton’s Edward Corwin, Alpheus Mason, and Walter Murphy and Harvard’s Robert McCloskey were not only leading political analysts of the court, but also leading experts on the Constitution. By the early 1970s, however, the Constitution had fallen into the hands of the law professors, and political science had fallen into an "abyss" of sterile quantification and abstract theorizing.

Some within political science have already vehemently objected to this characterization of the field by an interloper from the law schools. Powe’s account of the decline and fall of scholarship relating the Supreme Court and national politics is exaggerated. It understates the significance of the newer forms of political science research into the law and the judiciary, including work that has argued that the Supreme Court has received too much scholarly attention. Powe also seems to have underestimated the resurgence over 15 years or so of exactly the type of analysis that he extols in this book (though he does briefly note the existence of "some younger scholars" who are "similarly striving to combine law and political science"). Such work no longer monopolizes the field of public law, but it is an increasingly vital genre that is practiced at a variety of institutions across the country. Happily, it is also an increasingly interdisciplinary genre, with astute contributors as likely to be found in law schools as in political science departments. With some overstatement, Powe declares that his book "attempts to revive the genre of Supreme Court scholarship that focuses on the relationship between the Supreme Court’s decisions and national politics."

The Warren court would seem to be a natural subject for such an attempt. Complaints that the Warren court was "playing politics" began stacking up almost from the moment that Warren assumed the bench, and conservatives have always regarded the Warren court as the very exemplar of a politicized court. This is not Powe’s concern. He notes that he was once "inspired" by and "worshipped" the Warren court, but time seems to have cooled those passions. More important, his current interest is "neither to cheer nor boo; it is to understand and explain." From this perspective, as Powe might have emphasized more, all courts are political. The Supreme Court is a political body. It sits at the top of the third branch of government, whose ranks are filled with politically connected lawyers who regularly make influential decisions about important political matters. Activism was merely the particular expression of the politics of the Warren court, and that historically surprising activism requires a political explanation.

Both Powe’s strident call for a revival of this form of political analysis of the court and his particular contribution to the genre are most welcome. The Warren court was in desperate need of such synthetic attention, and Powe provides a readily accessible and compelling overview of the Warren era. For those who are not familiar with the Warren court, now over three decades in the past, The Warren Court and American Politics offers a fine introduction. For those who know the Warren era already, Powe offers a valuable and persuasive interpretation of the court’s actions that should be the starting point for future thinking on the subject.

This book is, first and foremost, "a synthetic history of the Warren Court." As such, it is more traditional in form and content than Powe would have us believe. It provides roughly chronological coverage of the court’s work from 1953, when Warren assumed the bench, to 1969 when he retired, with a primary focus on constitutional cases. Powe breaks the Warren court down into three basic eras. During the 1953 through 1956 terms, the Warren court launched its first constitutional volleys and touched off a firestorm of protest. Most significantly, the court handed down a decision in the school desegregation cases, Brown v. Board of Education, in 1954 and followed that up with its "all deliberate speed" order in Brown II the following year. The court also took on a series of domestic security cases addressing the state and federal governments’ efforts to root out communists. Those cases culminated in "Red Monday" in June 1957, a month after the death of Sen. Joseph McCarthy, when the court handed down four important decisions extending greater protections to admitted and suspected communists against criminal prosecution, legislative investigation, and dismissal from government employment.

This bold start to the Warren era was soon derailed. Powe characterizes the 1957 through 1961 terms as a period of "stalemate." He opens this section with a brief overview of the congressional attack on the court in the summer of 1958. Though largely forgotten now, congressional opponents mustered substantial support for anti-court legislation and sent a clear signal to the court to back off on the domestic security cases. Southern Democrats, already outraged over Brown, joined anti-communist Republicans in support of several measures to overturn recent criminal procedure and domestic security decisions. More ominously, the Senate gave serious consideration to legislation that would have prevented the appeal of certain kinds of domestic security cases to the Supreme Court. Although Congress was not about to pass such legislation, the Senate did come within a single vote of passing a House measure that would have eliminated the doctrine of the implicit premption of state laws by federal legislation. The bill would have eliminated a major tool that the court had used to strike down a wide range of state laws covering subjects from domestic security to labor regulation, and it would have freed the state legislatures to develop more restrictive policies than the court currently allowed. As Edward Corwin, the originator of Roosevelt’s court-packing plan, wrote to the New York Times, the court had needed its "nose well tweaked." The court got the message and loosened the reins on anti-communism. During the same period, the court bogged down on racial civil rights in the face of Southern "massive resistance" and congressional foot-dragging. After the murky directive of Brown II in 1955, the court largely left the lower courts to their own devices until 1968, when it belatedly rejoined the civil rights movement and began to insist on immediate school integration.

In 1960, John F. Kennedy won the presidency over Richard Nixon. Although Warren had initially thought Kennedy was "too young for the job," he quickly developed a close relationship with the new president. Unlike Eisenhower, Kennedy gave full and public support to the "dignity and wisdom" of the Warren court and its sole responsibility to interpret the Constitution. Perhaps more important, in 1962 Kennedy added a crucial fifth vote to Warren’s liberal coalition when the great voice of New Deal judicial restraint, Felix Frankfurter, suffered two debilitating strokes. The torch was finally passed from the New Deal liberals whose primary commitment was to democratic power to the New Frontier/Great Society liberals whose primary commitment was to progressive results. The eight years of the Kennedy and Johnson administrations were the heyday of the Warren court, or as Powe labels the 1962-68 terms, "History’s Warren Court." The court moved in an aggressively liberal direction on numerous constitutional fronts, from racial civil rights to legislative apportionment to church-state relations to freedom of speech to criminal justice.

Powe provides a fairly lively and opinionated survey of the key constitutional debates and opinions of the Warren era, and he does not hesitate to point out when the court’s reasoning was sloppy or its assumptions wrong. This overview of the legal terrain is interspersed with brief discussions of the changing political context of the judicial deliberations. The often critical changes in judicial personnel and the politics of judicial nominations and confirmations are duly noted, as are the political biographies and leanings of the new justices. More notably, Powe highlights the changing responses of various external constituencies for the court’s work. Southern congressmen alarmed by Brown looked for influential allies in their assault on the court. They briefly found them when the court took on the anti-communists, but had less luck with the politically weak conservative Catholics and Southern Protestants when the court took on church-state relations. Influential legal elites, including the American Bar Association, respected state and federal judges, and academics, harshly denounced the "political" court of the 1950s, but shifted into the court’s corner in the 1960s. Entering the apparent "political thicket" of legislative apportionment in the early 1960s, the court found an enthusiastic "latent consensus" that hailed the elimination of rural rotten boroughs and the shift of political power to the cities.

These political asides provide valuable insights into the relative success of the Warren court. In 1957, the Yale political scientist Robert Dahl wrote that the court was best understood as "inevitably a part of the dominant national alliance." For many, Dahl’s argument, focusing as it did on the 1937 "switch in time" and the subsequent judicial restraint, seemed immediately repudiated by the Warren court’s activism. Powe provides a much needed extension of Dahl’s point, recognizing that judicial activism as much as judicial restraint can serve the purposes of the national elite. Powe punctures the liberal mythology (and conservative bogeyman) of the lonely Warren court single-handedly reforming society. The court was hardly acting alone. As Powe notes, "The best description of the period is that all three branches of government believed they were working harmoniously to tackle the nation’s problems. It was simply a matter of determining which institution was best suited to handle a specific problem, and each went forward in its own way knowing the others also were seeking complementary results." The justices of the Warren court may have been "men of action, ready and willing to act," but they were also good politicians and knew when they had support and when they did not. "For a brief period, at least, those the Court was ready to help were those the national (but not state) legislature was enthusiastically helping. That is not going against the grain; that’s redundancy."

They were politicians firmly rooted in the mainstream establishment of the postwar federal government. With few exceptions, their actions reflected the beliefs of the national political elite. Powe concludes with one of his more provocative points, "the dominant motif of the Warren Court is an assault on the South as a unique legal and cultural region." Although the Warren court overturned huge amounts of settled law, it did so primarily in the service of reforming the South. Following the argument of the famous "Footnote Four" of the 1938 Carolene Products case, academics have largely justified the activism of the Warren court as the defense of disempowered minorities who would not be protected by the democratic process. By contrast, Powe argues, "If discrete and insular minorities are the key, then possibly the court could be better seen as attacking (rather than protecting) them on a national (rather than local) scale: the white South, the pre-Vatican II Catholic hierarchy, rural legislators, the local criminal justice system, and those remaining few who believed domestic communists were a threat to the nation." The idea of eliminating the international embarrassment of Jim Crow was commonplace among national elites as the Cold War began to heat up in the late 1940s and early 1950s, even if no one did much about it until after the civil rights movement had broken the back of segregation. Despite the initial protests, the justices of the Warren court were confident that local police would quickly learn to live with the new rules of criminal procedure that federal officials such as J. Edgar Hoover assured them were crucial to modern, professional law enforcement. Mainstream Protestants of the 1960s welcomed the court’s moves on religion, obscenity, and birth control.

The great virtue of such a political approach to analyzing the judiciary is that it is not limited to historical revisionism of the Warren court. These lessons are of general significance. The court does not stand outside of American politics, but rather is a part of it. That does not mean that judicial independence is a myth, or that judicial activism raises no problems for a democracy. But it does mean that judicial power is limited and that the court must be understood in terms of the politics of the time. The constitutional innovations of the Warren court were products of the generally confident and ascendant liberalism of the 1960s. The tentative conservatism of the Rehnquist court reflects the incomplete success of the Reagan Revolution. There is no shortcut to social and political change.

Unfortunately, Powe does not push his political thesis far enough. Rather than systematically pursuing an argument about how the court might be best understood as a political institution operating in a political environment, Powe has chosen to write a history of the Warren court informed by politics. Certainly this is an understandable and reasonable choice. There was a need for such a book, and there is undoubtedly a bigger audience for histories of the court than for social scientific analyses of it. This choice also allows Powe to do what law professors are generally trained to do: describe and criticize judicial opinions. Politics is often relegated to discrete, and brief, sections that bookend the case analysis and that many readers may find expendable.

Such choices may tend to reinforce the belief in Warren court exceptionalism. Powe does begin the book by briefly setting up the situation of the post-New Deal Supreme Court, but the book basically begins and ends with Warren’s tenure. As many students of the court have observed, dividing judicial history by chief justice is fairly arbitrary, as Powe to some degree recognizes. The Warren court’s complicated New Deal inheritance is shortchanged in Powe’s analysis. At the other end, the chief voice and intellectual force of the "Warren" court was Justice William Brennan, who remained on the court for another two decades after Warren’s retirement and continued to write important majority opinions until the end. Although Powe hints at the complications that Warren-era decisions would create for later courts, ending the book with Warren’s retirement prevents a full consideration of that legacy.

Limiting the book to the Warren era also complicates Powe’s central message that the court should be understood as a political institution. Powe is caught to some degree between the desire to demonstrate the value of the political approach to understanding the court — to showing that the Warren court cannot be understood in purely legal terms — and the more particular goal of supporting a specific political interpretation of the Warren court. For many readers, the latter argument is likely to swamp the former. Given that many already accept the basic notion that the Warren court was — legitimately or illegitimately — political in its orientation, Powe may merely reinforce caricatures with his account. Perhaps this is less of a problem for the audience that Powe seems to have first in mind: liberal law professors who view the Warren court as a font of justice. But in leaning against one stereotype Powe may have inadvertently played into another (though it should be emphasized that Powe’s story is far more sophisticated than the usual complaints of judicial activism long advanced by the court’s critics). At the same time that Powe admirably strives to place the Warren court within the context of the political history of its time, he tends to pull it out of its own institutional context.

Some consideration of the doctrinal and institutional legacies of the Warren court would seem particularly useful to such a political analysis. Powe emphasizes the Warren court’s radical willingness to abandon judicial precedents, whether long held or newly minted, while carefully avoiding conflict with powerful political opponents. But Warren’s departure did not quiet the court. Rather, the experience of the 1960s seems to have emboldened the court, which continues to be willing to strike down state and federal statutes as unconstitutional at a historically torrid pace. If anything, the Burger and Rehnquist courts appear to be even more willing than the Warren court to take on the other branches of the federal government. Although modern judicial activism may have begun in the national government’s struggle to overthrow the racial institutions of the South, it has progressed far beyond those initial concerns.

Powe’s analysis is an important starting point for understanding the modern court and its relationship to the political system, but it should only be a starting point. Additional work will be needed to add depth to Powe’s many provocative claims about the Warren era itself and to extend the political analysis beyond the Warren era, but The Warren Court and American Politics is a useful contribution to a resurgent literature on the Supreme Court’s place within American politics.