A People's History of the Supreme Court

by Peter Irons

  The Court’s decisions in the prayer cases do in fact run “counter to the ingrained attitudes” of many Americans. Polls have consistently shown a solid majority behind proposals to return prayer to the schools. Support for a constitutional amendment to accomplish this goal runs highest among southern white Protestants and lowest among northern Catholics and Jews. Well into the 1990s, close to half of the nation’s public schools—and more than half in the South—continue to defy the Court’s prayer decisions with such sectarian practices as classroom prayer, lunchtime grace, and Bible distribution.

  As recently as 1992, the Court felt compelled to repeat its Engel and Schempp rulings that school prayer violates the Establishment Clause. But the “wall of separation” came perilously close to collapse in Lee v. Weisman, as four conservative justices dissented from a decision that struck down prayer at school graduations. Daniel and Vivian Weisman, who are Jewish, had complained about Christian prayer at the Nathan Bishop Middle School in Providence, Rhode Island, from which their daughter Merith graduated in 1986. A Baptist minister had thanked Jesus Christ for inspiring Merith and her classmates. Merith’s sister Deborah was graduating in 1989. Principal Robert E. Lee assumed the Weismans would not object to having Rabbi Leslie Gutterman deliver the invocation. He was wrong; they did object and asked a federal judge to remove the rabbi from the program. The Weismans lost this round and attended the graduation, at which Rabbi Gutterman gave what Daniel called “a typical Jewish family blessing.” Ironically, his prayer thanked God for America’s “court system where all may seek justice.” Just as ironically, Deborah received the award for “best school spirit” after her family had sued the school’s principal to keep the rabbi from delivering this prayer.

  The Weismans returned to court after Deborah’s graduation and won a ruling against further prayer in Providence schools. The case reached the Supreme Court during a presidential election year in 1992. President George Bush endorsed a constitutional amendment to reverse the Court’s prayer decisions, while his challenger, Bill Clinton, opposed this move. Bush sent his solicitor general, Kenneth Starr—who later became President Clinton’s nemesis—to support Principal Lee at the Court. Justice Anthony Kennedy, a devout Catholic and former altar boy, wrote for the narrow majority; he followed Engel and Schempp in ruling that the constitution “forbids the State to exact religious conformity from a student as the price of attending her own high school graduation.” Justice Antonin Scalia, another devout Catholic and former altar boy, wrote for the four dissenters and accused the majority of driving a judicial “bulldozer” over an American tradition. Scalia noted that President Bush had asked the guests at his 1989 inauguration to “bow their heads” in prayer. But as Justice Kennedy noted, the “coercion” of a teenager to attend her graduation—from both family and friends—is far greater than any pressure on adults to participate in civic ceremonies.

  Kenneth Starr lost the prayer case and George Bush lost the 1992 election to Bill Clinton. Supporters of a constitutional amendment to reverse the prayer decisions also lost their White House pulpit. But they have not given up the effort to “put God back into our schools.” Voting in June 1998, a majority of House members supported the prayer Amendment sponsored by Oklahoma Republican Ernest Istook, who said he wanted to overturn Supreme Court decisions that have “attacked, twisted, and warped” the First Amendment. Istook fell short of the two-thirds vote he needed, but vowed to bring the issue back to Congress. Proposals to amend the First Amendment continue to bedevil the political process.

  Earl Warren became Chief Justice in 1953, but the “Warren Court” that liberals cheered and conservatives booed did not become a cohesive body until October 1962, when Arthur Goldberg took the seat occupied for thirty-three years by Felix Frankfurter. Goldberg was actually the second of President John F. Kennedy’s two justices, but the first, Byron R. White, never joined the solid liberal bloc that extended constitutional protections to every “despised” group in American society, including Communists and criminals.

  Byron White, who replaced Justice Charles Whittaker in April 1962, closely resembled John Kennedy in age, ambition, and aggressive pursuit of political goals. Born just ten days after Kennedy in 1917, White attended his home-state University of Colorado and earned both a Phi Beta Kappa key and All-American honors in football as a running back, earning him the nickname “Whizzer,” which he detested. He turned down a Rhodes scholarship to play professional football. After one starring season with the Pittsburgh Steelers, White took his Rhodes year at Oxford; on his return he combined studies at Yale Law School with games for the Detroit Lions. Enlisting in the navy in 1942, he became a PT-boat skipper in the South Pacific and formed a close friendship with another skipper, Jack Kennedy. White completed his Yale studies after the war and clerked for Chief Justice Vinson before returning to Colorado, where he practiced law and Democratic politics until President Kennedy named him as deputy attorney general in 1961.

  White spent a turbulent year in the Justice Department, stamping out civil rights fires in the Deep South. His forceful role in dealing with bigoted southern officials like Sheriff “Bull” Connor in Birmingham, Alabama, impressed the president, who wanted to place the “Kennedy stamp” on the Supreme Court. Senate racists like James Eastland of Mississippi did not oppose White’s confirmation, largely because Kennedy had appeased them by naming some notorious racists to the federal district bench. Once on the bench, White voted most consistently with Tom Clark, another former Justice Department official who shared his hard-line position in criminal cases. White dissented from Chief Justice Warren’s opinion in the “right-to-remain-silent” Miranda case and consistently voted against abortion rights, from his Roe v. Wade dissent in 1973 to Planned Parenthood v. Casey in 1992, which upheld the “essential holding” of Roe against a ferocious political assault. Distressed by this final loss, “Whizzer” White hung up his cleats and retired from the Court in 1993.

  Arthur Goldberg played on Earl Warren’s team for just three seasons, but he gave the Chief his vote in almost every case. Born in Chicago in 1908, he raced through school and began practicing law at twenty, mostly representing labor unions. He became general counsel of the United Steelworkers and advised John Kennedy on labor issues during the 1960 presidential campaign. Goldberg was rewarded with the post of labor secretary and impressed the president with his mediating skills. When Justice Frankfurter retired in August 1962, Kennedy immediately named Goldberg to replace him. During his three years on the Court, Goldberg displayed little of the “judicial restraint” his predecessor had championed for three decades. He voted to strike down state laws in cases that dealt with coerced confessions, capital punishment, and contraception. Goldberg reluctantly left the Court in 1965 to become United Nations ambassador under President Lyndon Johnson: he hoped to mediate an end to the Vietnam War and then return to the Court. But the war ended Johnson’s presidency in 1968, and Goldberg returned to private practice until his death in 1990.

  John Kennedy died in November 1963 from an assassin’s bullets in Dallas, Texas. Lyndon Johnson, who took the presidential oath with as little warning as Harry Truman, was a native Texan who fought Kennedy for the Democratic nomination in 1960 and took the vice presidency as his runner-up prize. Johnson succeeded where Kennedy had failed in pushing a sweeping civil rights bill through Congress in 1964, but he failed miserably in ending America’s involvement in the Vietnam War. The Supreme Court decided several landmark cases that began with civil rights and antiwar protests, and President Johnson’s two justices supported the protesters in almost every case.

  Abe Fortas replaced Arthur Goldberg in 1965, capping a brilliant career in government legal service and private practice. Born in 1910 in Memphis, Tennessee, he became editor in chief of the Yale Law Journal and joined Yale’s law faculty after graduation in 1933. Fortas became a New Deal lawyer and was working in the Interior Department when he met Lyndon Johnson, then a young Texas con
gressman, in 1937. Johnson owed his Senate election in 1948 to Fortas, who persuaded the Supreme Court to keep federal judges from opening the ballot boxes into which Johnson’s eighty-seven-vote primary victory had been stuffed, which led wags to call him “Landslide Lyndon.” In 1963, Chief Justice Warren appointed Fortas to argue for Clarence Earl Gideon, who was tried and convicted for a Florida pool-hall burglary without a lawyer, over his protest that the Constitution gave him the right to counsel. Fortas convinced a receptive Court that Gideon could not adequately defend himself against the state’s lawyers, and the justices ruled in Gideon v. Wainwright that every indigent defendant must be given counsel. “Landslide Lyndon” finally rewarded his intimate adviser with the Supreme Court seat that Goldberg had hoped to reclaim.

  Johnson added another experienced lawyer to the Court when he named Thurgood Marshall to replace Tom Clark in 1967. Marshall was already a legal legend, having served as the NAACP’s chief counsel from 1939 to 1961 and having won all but three of the thirty-two cases he argued before the Supreme Court. In 1961, President Kennedy named him to the federal appellate bench in New York; he resigned in 1965 to become solicitor general, the first black to hold that post. The Senate’s unrepentant Confederates donned their hoods at his confirmation hearings; Strom Thurmond of South Carolina demanded that Marshall answer sixty complicated questions, many about nineteenth-century cases. All but one of the eleven votes against him came from Deep South senators.

  Marshall had been a forceful advocate before the Court, but on the bench he struck many observers as bored and detached. He focused on civil rights cases and wrote few opinions in areas like antitrust or tax law. Marshall reportedly allowed his law clerks to write his opinions; one story had Marshall responding to compliments about an important civil rights opinion: “Oh yeah? I’ll have to read it.” But other justices only lightly edit their clerks’ opinions, and many never master fields of law they find boring. And the masterful advocate could tear apart lawyers whose oral arguments he found evasive or prejudiced. During argument in 1977 of the Bakke case, which challenged minority admissions programs in medical schools, Marshall questioned Allen Bakke’s lawyer: “You’re talking about your client’s rights; don’t these underprivileged people have some rights?” The lawyer replied: “They certainly have the rights to compete ...” Marshall cut him off: “To eat cake.”

  Earl Warren presided as Chief Justice from 1953 to 1969, and the Brown case—the most famous during his tenure—was decided in 1954. But the “Warren Court” that profoundly and lastingly reshaped the Constitution really existed only between 1962 and 1969, from the time Arthur Goldberg joined the Court until Earl Warren retired. Goldberg added the crucial fifth vote that gave Warren, William Brennan, Hugo Black, and William Douglas a solid majority on virtually every issue. The Warren Court remained intact after Abe Fortas replaced Goldberg and became even stronger when Thurgood Marshall replaced Tom Clark in 1967. Justice Brennan was fond of saying, “With five votes, you can do anything around here.” And with five and then six sure votes, the Warren Court turned the Bill of Rights into a powerful weapon against government officials—from police officers to presidents—who failed to treat people fairly and equally and to respect their ”human dignity.”

  We cannot give “close scrutiny” to more than a handful of the landmark Warren Court decisions. They mounted so rapidly that an entire book could hardly examine them in any detail. We can, however, look at snapshots of cases that raised issues dividing the American people and that gave the Warren Court opportunities to expand the Constitution’s protection of the people’s rights. Our five snapshots deal with disenfranchised voters, black travelers, accused rapists, student protesters, and newspaper editors. These groups have little in common, but they all looked to the Warren Court for protection.

  After his retirement, Earl Warren was asked which of his opinions he considered the most significant. Most people would assume that Brown topped the list by far. Warren surprised his questioner by naming Reynolds v. Sims, a 1964 opinion that redrew the nation’s entire political map, ending the grip of rural lawmakers on an increasingly urban society. Pressures on the Court to force the fair apportionment of state and federal legislative districts had mounted in the 1950s, as the population of cities and suburbs mushroomed. Voters in several states filed suits claiming that malapportionment violated the Fourteenth Amendment’s Equal Protection Clause. But in 1946, the Court had decided in Colegrove v. Green that disgruntled urban voters should make their complaints in ballot boxes, not in courthouses. Justice Felix Frankfuter wrote for the Court in Colegrove that federal judges should stay out of this “political thicket.”

  The Warren Court decided in 1962 to cut down the brambles that surrounded the Congress and state capitals. The justices began with Tennessee, where the largest state legislative district had nineteen voters for each one in the smallest. Tennessee’s constitution required a redistricting every ten years, but the rural-dominated legislature simply ignored this command. Writing in Baker v Carr, Justice Brennan reversed Colegrove and ruled that federal judges had power to hear reapportionment cases. He stated that Tennessee’s urban voters “are entitled to a trial and a decision” of their complaint. Hearing the news, urban voters in more than a dozen states quickly ran to federal courthouses to file similar complaints. Two years later, the Court decided six reapportionment cases at once. The lead case, Reynolds v. Sims, came from Georgia, where the largest senatorial district had forty-one times more voters than the smallest. Only Justice John Harlan dissented from Earl Warren’s opinion. “Legislators represent people, not trees or acres,” Warren wrote. “Legislators are elected by voters, not farms or cities or economic interests.” The “one person-one votes” standard of the Reynolds opinion has reshaped America’s political landscape, with both Congress and state legislatures now dominated by lawmakers who represent cities and suburbs; the 2 percent of Americans who still live on farms no longer hold the reins of power.

  Shortly before the Brown decision, Chief Justice Warren set off with his black chauffeur to visit Civil War battlefields in Virginia. He heard echoes of those battles the next morning. Warren emerged from his nice hotel to discover that his driver had slept in the car. He asked why. “Well, Mr. Chief Justice,” the driver began, “I just couldn’t find a place—” Warren suddenly realized that nice hotels in Virginia did not admit black guests. “I was embarrassed, I was ashamed,” he later recalled. Ten years later, in 1964, Congress passed a sweeping Civil Rights Act that outlawed racial segregation in “public accommodations” like hotels and restaurants. Congress based the law on its constitutional power to regulate “commerce among the several states.” Back in 1883, the Supreme Court had struck down a federal civil rights law based on the Equal Protection Clause, and Congress feared the justices might feel bound by that precedent.

  Owners of the Heart of Atlanta Motel, which filled most of its rooms with out-of-state guests, promptly challenged the law. The motel’s lawyer asked the justices to listen to the “forty-three million white people in the South” who believed that a business owner’s right to discriminate “is more important and more paramount than the commerce of the United States.” Earl Warren listened to the echoing voice of his black chauffeur. He assigned the Court’s unanimous opinion in 1964 to Justice Tom Clark, who wrote in Heart of Atlanta Motel v. United States that Congress may employ its commerce powers to legislate against “moral wrongs” like racial discrimination.

  Racial discrimination is morally wrong, and so is rape. Society can punish both, but deciding who is guilty raises more difficult questions when the defendant is not a motel owner but a poorly educated drifter. Can the police force those charged with rape or murder to confess their crimes? Some methods of extracting confessions are clearly unlawful. The Supreme Court in 1936 threw out confessions obtained by whipping, and in 1958 the Warren Court ruled that police cannot tell suspects that a mob will “get them” if they
refuse to confess. Most suspects will talk without torture or death threats, but how many would confess if a lawyer advised them to keep their mouths shut? The Fifth Amendment says that no person “shall be compelled in any criminal case to be a witness against himself.” Does this mean that police officers must act like defense lawyers in their squad cars and interrogation rooms? The Warren Court faced this question in the case of Ernesto Miranda, accused of raping a teenager in Phoenix, Arizona. The victim did not see his face, but witnesses saw his car’s license plate. After two hours of questioning, Miranda gave police a signed confession, He was convicted over his lawyer’s objection that police had violated his Fifth Amendment right to remain silent.

  During oral argument in Miranda v. Arizona, a lawyer speaking for state prosecutors urged the Court not to “encourage” defendants to consult lawyers before talking to police. Earl Warren, a former prosecutor, had a question: “Are lawyers a menace?” Any defense lawyer, he was told, “is going to prevent a confession from being obtained.” Warren knew from experience that most suspects will talk, even if they know they can remain silent. Speaking for a bare majority in 1966, Warren said that “incommunicado interrogation” was “destructive of human dignity.” Word for word, he dictated the “Miranda warning” that police must now give all suspects. Justice Byron White, the most critical of the four dissenters, warned that Warren’s opinion “will return a killer, a rapist or other criminal to the streets” to commit more crimes. But Ernesto Miranda did not return to the streets; jurors in his second trial—who did not hear his confession—convicted Miranda once again.