Prominently included in the American idea of freedom is individual rights. In American history this concept has fallen into two broad ideological camps. Most common have been conservative judicial scholars and Supreme Court justices that limit individual rights to those explicitly identified in the Constitution (originalists/textualists). This view has often involved the states’-rights stance. Since Lochner v New York (1905) the first group also includes less conservative Justices (often associated with the Warren Court) that are willing to include rights that are related to or derived from those rights clearly stated in the Constitution. More recently, a smaller second group of Justices and scholars have argued that the above position ignores the Nineth Amendment which recognizes unenumerated rights. This latter group argues that Americans have many unnamed individual rights that are equally Constitutional such as the right to privacy. The Ninth Amendment implies that new rights should be pursued. This paper examines this history and makes a case that unenumerated rights should be developed. Since the Dobbs v Jackson Women’s Health Organization (2022) decision unenumerated rights are being threatened much like the right to abortion.

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This Article makes several contributions regarding the important changes in these doctrines during the Warren Court (1954–1969) and the early Burger Court (1969–1976), before Congress in 1976 limited the scope of three-judge courts and the concomitant mandatory appeals. It documents the number of such cases during the time periods in question; addresses the quantitative and qualitative changes in equal protection and due process (and other) doctrines influenced, at least in part, by the availability of mandatory appeals; and normatively addresses the propriety of this influence in light of the renewed interest in reestablishing at least some mandatory appeals in current proposals to “reform” the Supreme Court.

Part I develops more fully the differences that divide liberal and conservative commentators on criminal procedure, taking special note of the series of Reports prepared by the Justice Department's Office of Legal Policy and published recently in the University of Michigan Journal of Law Reform. Part II explains my disquiet with the suggestion that original-meaning jurisprudence ought to guide criminal procedure doctrine. Part II also defends the thesis that the fourteenth amendment protects the individual interest in freedom from unjust punishment, rather than any abstract interest in truth for its own sake. Part III considers two familiar controversies in criminal procedure-the fourth amendment exclusionary rule and confessions-from the revised perspective developed in Part II. Part IV adumbrates some possible applications of the revised perspective to trial procedure. These possibilities illustrate that the risk of unjust punishment remains very far from irreducible and that the fourteenth amendment authorizes measures to move this risk closer to its practical minimum.

A New Era of Poverty Litigation: The Warren Court’s Consideration of the Rights of Aid Recipients in King v. Smith

Abortion has been recognized as the most controversial and emotional issue in the United States, debate of which has lasting for three decades. The overturning of Roe v. Wade is considered to be one of the major goals of the Republican presidential campaign. As a country with many parties and religions, the debate of abortion has been a constant battle ground between warring factions. Since Roe v. Wade, the pro- and anti-abortion sides have used the right of patients to autonomy and privacy and the unborns right to life as arguments, triggering a debate over the right to choose and the right to life. However, there are also more views that the issue raised by the Supreme Courts overturning of Roe v. Wade is actually a question of whether the law interferes excessively in political issues. Does it infringe on the legislative power of the states and even the spirit of democracy? This paper attempts to start from the appeal of right protection, go back to the Warren Court, and think about the changes of the meaning of right under judicial activism, so as to carry on the discussion of democracy and freedom.

The Last Days of the Warren Court:How Justice Brennan Orchestrated Shapiro v. Thompson (1969) Jordan Lampo (bio) On April 21, 1969, the Supreme Court invalidated state durational residency requirements for receipt of public assistance and helped establish a fundamental, constitutional right to travel in Shapiro v. Thompson.1 In announcing Shapiro, Justice William J. Brennan "read lengthy excerpts" from his majority opinion to spectators in the Courtroom.2 Brennan's prioritization of protecting the poor through the Fourteenth Amendment in Shapiro did not come as a surprise that day. Since he joined the Warren Court in 1956, Brennan and his fellow justices had been addressing wealth discrimination, hoping to apply the Equal Protection Clause to protect the rights of the poor. Chief Justice Earl Warren dissented in Shapiro. This was unusual. Brennan and Warren had been allies for twelve years, more often than not voting together on landmark cases. Notably, the chief justice had voted with the majority and Brennan in: Gideon v. Wainwright (1963),3 holding the Sixth and Fourteenth Amendments guarantee a right for legal counsel to an indigent defendant accused of a felony; Douglas v. California (1963),4 holding that states must provide indigent persons with counsel on a first appeal of right to challenge a criminal conviction; and Harper v. Virginia Board of Elections (1966),5 holding a state law conditioning the vote on payment of a $1.50 poll tax denied equal protection. But Shapiro was different. Brennan had to deploy his persuasive powers to marshal a majority without Warren, who was about to retire. The story of how Brennan orchestrated Shapiro bears re-examination, as it took many twists and turns to arrive at the final decision. Moreover, the case took on heightened drama as some of the justices were worried about antagonizing Congress with a decision that [End Page 75] would require states to pay assistance to indigents at a time when Congress was debating whether to raise judicial salaries. The Warren Court The Warren Court spanned fifteen years (1953–1969) and Brennan served for twelve of them.6 One of Warren's clerks, Robert T. Lasky, summed up the relationship between the chief justice and the associate justice: Spearheaded by … Warren and … Brennan, the Warren Court radically expanded the reaches of the judicial power and altered constitutional law in a way that reverberates to this day. … Warren was the leader of the liberal wing; Brennan would provide its intellectual underpinnings.7 Lasky said Warren knew Brennan, the "intellectual anchor" who did "real hard, heavy lifting from a thinking standpoint," could articulate legal arguments in a manner the former governor of California could not.8 Another clerk, Paul J. Meyer, recalled that Warren and Brennan were always "very close" and that Brennan was "clearly Warren's tight ally of the Court."9 Their companionship has led historians to refer to their overlapping time on the bench not as the "Warren Court," but "the Brennan Court."10 Brennan and Warren mostly voted in lockstep. Warren often tasked Brennan with convincing a fifth justice to join them alongside liberal-leaning Justices Hugo L. Black and William O. Douglas.11 If Brennan was successful in garnering a fifth vote, then Warren would have the assignment power. Often, Warren assigned Brennan to write opinions in seminal cases. Notably, the chief justice assigned him Baker v. Carr,12 the reapportionment case that Warren deemed "the most important case of [his] tenure,"13 and Cooper Click for larger view View full resolution Earl Warren and William J. Brennan served together on the Court for 12 years and mostly voted in lockstep. Above they are shown examining Chief Justice John Marshall's Courtroom notes at the National Archives in 1966. [End Page 76] v. Aaron,14 a 1958 case denouncing Southern resistance to school desegregation. Thurgood Marshall was appointed in 1967, and soon became Brennan's ally.15 Marshall's presence gave the Court a solid block of seven liberal justices. Such a large number of like-minded justices put Brennan at ease—he no longer needed to rely on using Warren's opinion assignment power to force wavering justices to author opinions that aligned with his liberal values...

"Hugo Will Pull My Hair Out":Justice Black and Mandatory Arbitration on the Warren Court Theodore Salem-Mackall (bio) Call arbitration what you want, but do not call it uncontroversial. Early common-law courts refused to enforce contractual agreements to arbitrate claims, holding that parties' could not "oust" courts of their jurisdiction.1 Early American courts adopted this "ouster doctrine," and treated arbitration agreements as "revocable at will."2 Their skepticism, along with a dollop of private sector lobbying, lead to the 1925 passage of the Federal Arbitration Act. The FAA made agreements to arbitrate "as enforceable as other contracts" in federal court.3At the time of the FAA's passage, concerns existed that large corporate interests would use mandatory arbitration clauses contained in form contracts to frustrate worthy claims. The FAA's congressional advocates intended for the bill to have a narrow scope in order to forestall this.4 Yet a few progressive members of Congress were not relieved by such promises. Among them was a young Alabama senator who, though he would not actually join Congress until a year after the FAA's passage, opposed expanding the scope of mandatory arbitration throughout his life: Hugo Lafayette Black. Justice Black, who served on the Court from 1937–1971, is best known for his monumental decisions on school desegregation, freedom of the press, and procedural protections for criminal defendants.5 What he is less known for is his status as one of the Supreme Court's foremost critics of mandatory arbitration. From 1961–67, Black dissented in six cases enforcing a mandatory arbitration clause contained in a contract or collective bargaining agreement.6 His dissents often argued that strict enforcement of arbitration clauses came at the expense of a party's constitutional right to their "day in court."7 The early Warren Court shared Black's concerns. In 1953, the Court held in Wilko v. Swan that the right to bring Securities Act claims in [End Page 54] federal court could not be waived through a form contract containing an arbitration agreement.8 Yet this hostility did not last. In 1967, a very different Warren Court decided Prima Paint v. Flood & Conklin.9 Prima established that the Federal Arbitration Act made arbitration agreements "valid, irrevocable and enforceable" in federal court,10 and superseded any contrary state arbitration rules in diversity cases.11 The decision implicitly overruled a 1956 Supreme Court holding that the Federal Arbitration Act was a procedural statute that could "affect the rule of decision," and could violate Erie R. Co. v. Tompkins if applied to override contrary state law. Prima Paint also made arbitration clauses "severable" from the rest of contracts, allowing arbitrators to review "fraud in inducement" defenses to breach claims rather than courts.12 Prima marked the first in a long line of Supreme Court cases that gradually established modern "liberal enforcement" of arbitration clauses.13 Justice Black opposed every aspect of the case. In a dissent longer than the opinion, he described it as a "statutory mutilation."14 Hugo Black and the Federal Arbitration Act Black's skepticism of arbitration stemmed from his wariness of corporate power and deep belief in each person's right to a fair "day in court." Throughout his life, Black displayed a deep respect for the right to fair trials decided by impartial courts. He began his career as a Birmingham trial lawyer. This experience left him with a "devout belief" in the jury system, and in his eventual political career he pushed for stronger procedural safeguards in trial courts. To Black, only procedures which ensured fundamental fairness could allow the judiciary to achieve just outcomes and maintain its legitimacy.15 Black's political career was shaped by the Great Depression. The traumatic experience of watching Alabama residents beg for food pushed him to support the New Deal's efforts to regulate capitalism. As a Senator from 1927 to 1937, this support brought him into conflict with a range of "high-powered, deceptive, telegram-fixing, letter-framing, Washingtonvisiting [lobbyists]."16 Black sparred with special interests over his attempts to provide municipal power to impoverished Alabama towns.17 He watched them push for exemptions to his Black-Connery bill...

Introduction Timothy S. Huebner The mission of the Supreme Court Historical Society is to collect, preserve, and promote the history of the Supreme Court of the United States. The Society carries out its mission not only by conducting educational programs for students and teachers, but also by presenting public programs and lectures, producing documentaries and books, and acquiring artifacts and documents of historical significance in cooperation with the Curator of the Supreme Court. The Journal, of course, plays an essential role in carrying out the mission of the Society, as it serves as the only publication devoted exclusively to publishing the latest historical scholarship on the Court. It is a mission that our editorial board, Director of Publications Clare Cushman, and I take very seriously. Part of the Journal's longstanding purpose, moreover, has been to promote and publish the work of young scholars—the next generation of constitutional and Supreme Court historians. To that end, since 1995 the Society has bestowed the Hughes-Gossett Student Award upon an outstanding student paper submitted to the Journal. In addition to this award, I am proud to announce that our editorial board has decided to offer a research grant for early career scholars researching and writing about the history of the Court. Awarded on a competitive basis in June of each year, the $1,000 grant, named in memory of the distinguished scholar Henry J. Abraham, supports the research of those who are pursuing academic careers in legal history, including graduate students, law students, and those who are no more than five years from completion of either the Ph.D. or J.D. The award will be given on the basis of the applicant's potential for producing publishable work in the field of Supreme Court history, and the grant recipient will be expected to produce an article for submission to the Journal. Our board is very excited about this ongoing commitment to young scholars. If you know of someone who qualifies, please make that person aware of this opportunity! More information is available on the Society's website. This issue of the Journal highlights the work of young scholars. In case you haven't noticed, Prof. Brad Snyder's seminar on the Warren Court, which he has offered over the past few years at Georgetown University Law Center, has been the source of several papers of late, including last year's winner of the Hughes-Gossett Student Award. Under Brad's mentorship, these students have [End Page 5] produced outstanding essays based on an impressive array of primary sources. Three essays in this issue come straight from Brad's seminar. The first of these essays, by Theodore Salem-Mackall, explores Justice Hugo Black's opinions in cases involving mandatory arbitration. Although best known for his opinions in civil rights and civil liberties cases, Black dissented in a string of Warren-era mandatory arbitration cases, out of a general wariness of corporate power and a deep belief in each person's right to a fair "day in court." Salem-Mackall, who originally wrote the paper while a law student, is currently a Law Clerk at Cleary Gottlieb Steen & Hamilton LLP. The second essay, by Gabriel Valle, tells the largely unexplored story of Gus Garcia and Hernandez v. Texas (1954), which involved the rights of Mexican-Americans to serve on juries. Although overshadowed by a contemporary case, Brown v. Board, and its emphasis on the struggle of Black Americans to desegregate schools, Valle shows the importance not only of Garcia's advocacy but also the Hernandez decision. Valle is a J.D. candidate at Georgetown. Third and finally, Jordan L. Lampo's essay chronicles the internal deliberations in Shapiro v. Thompson (1969), in which the Court invalidated state durational residency requirements to receive public assistance, thereby contributing to the establishment of a constitutional right to travel. The unusual lineup in the case—with Justice William Brennan and outgoing Chief Justice Earl Warren on opposites sides—makes for a fascinating story. Lampo is also a J.D. candidate at Georgetown. In addition to these student essays, Helen Knowles, Associate Professor of Political Science, State University of New York at Oswego and a member of...

The Judicial Bookshelf Donald Grier Stephenson Jr. (bio) Introduction: Supreme Court History as a Parade of Themes Of the hundreds of books about the Supreme Court published in the twentieth century, surely few have been more widely read and referenced than The American Supreme Court by Robert G. McCloskey, professor of government at Harvard University from 1946 until his death in 1969. First published in 1960 by the University of Chicago Press, this compact and elegantly written one-volume interpretive history of the Court has been updated now through six editions by McCloskey's student, Sanford Levinson of the University of Texas.1 The paragraph that concluded the Epilogue in the initial edition combined a historical overview with what appeared to be an admonition for the Warren Court, ironically just as it was on the eve of an even more activist phase. From 1789 to the Civil War, the Court labored to establish a reasoned argument for the cause of union. From the war to 1937 it performed a similar function on behalf of laissez faire. Toward the end of each of those periods, the judges overstepped the practical boundaries of judicial power and endangered the place they had earned in the American governmental system. Since 1937, the Court has striven to evolve a civil rights doctrine that will realize the promise of the American libertarian tradition, yet accord with the imperatives of political reality. Even when criticisms are duly acknowledged, the fact remains that the Court has contributed more to an understanding of this issue than any other agency in American life. It would be a pity if the judges, having done so much, should now once again forget the limits that their own history so compellingly prescribes.2 McCloskey's paragraph illustrates a common goal of many who write about the Court: Highlighting one or more themes that capture the essence of a period of judicial history. [End Page 113] Indeed, in fewer than 150 words, McCloskey pointed to at least four such themes, the last of which was hardly a surprise. As William Lasser observed some three decades later in the context of warnings against an overreach of judicial power, the theme of "weakness and vulnerability pervades the literature on the Supreme Court."3 This theme perhaps echoed the same "forbearance in the use of power" to which Paul Freund referred as he eulogized Justice Felix Frankfurter in 1965.4 The word forbearance itself is a reminder that the Court's work of deciding cases occurs in at least three dimensions as it may choose to allow, to direct, as well as to forbid. Yet in the context of deciding cases contemporary observers as well as someone decades hence might well choose to associate the words political or partisan as both a related and even an identifying theme for the Court of this part of the twenty-first century. That characterization, however, is hardly novel or even distinctive in that the label could also easily be applied to much of the Court's history. Indeed, scholars have long regarded the Court as political in numerous ways. Perhaps most obviously, the Court is political because its decisions shape public policy by deciding what government—national, state, or local—may or may not do. At least since the 1960s, for example, the Court has overseen operation of the criminal justice system to a degree never before experienced, from police-citizen encounters through punishment. Second, decisions clarify the boundaries of political authority, focusing less on what may be done than on who may do it or how it may be done. The Steel Seizure Case5 turned not on whether government could cope with labor disruptions but on whether President Truman in the executive order had exceeded his authority and intruded into Congress's law-making domain. The Legislative Veto case6 did not question government's authority to deport a particular individual but instead challenged the device by which Congress had mandated deportation. Third, the Court itself may become an issue in presidential elections, as has happened at least a dozen times since 1800 because of unpopular decisions. Quadrennial campaigns in the past four decades, for example, would have...

On June 24, 2022, the U.S. Supreme Court decided in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion, which had been upheld since Roe v. Wade in 1973. Roe, overruled by Dobbs, had represented constitutional revolution led by liberal Justices starting from the Warren Court. Conservative lawyers have tried to put an end to judicial activism since early 1980s. This paper reviews the conservative judicial movement in terms of constitutional interpretation as well as social movement. Originalism, conservative theory of constitutional interpretation based upon the text of the Constitutional and original meaning of the text, has been developed to criticize the Warren and Burger Court’s decisions of making constitutional rights based upon a theory of living constitutionalism. Originalists argue that incorporation of current values is the obligation of the representative, not the job of the court. In Dobbs the Supreme Court delivered an opinion that Roe was egregiously wrong and on a collision course with the Constitution. Six Justices in majority opinion in Dobbs are members of, or otherwise affiliated with the Federalist Society. The Society, which was founded to promote conservative and libertarian beliefs such as limited government and judicial restraint in 1982, has grown to be the most influential legal network. Though the Society is accused of making the Court politicized, what we as foreign scholars should learn from the Society is the intellectual culture that the Society is focusing on. The Society has accumulated intellectual capital by way of reasoned debate and robust discussion.

AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

This Article series argues that the U.S. Supreme Court’s excessive force jurisprudence from Graham v. Connor to the present has undermined the objectivity of the reasonableness standard. In its place, the Court has erected a standard that reflects modern conservative political ideology, including race conservatism, law-and-order, increased police discretion, and the deconstruction of the Warren Court’s expansion of civil rights and civil liberties. Indeed, the Court, dominated by law-and-order conservatives, is one of the greatest triumphs of modern conservatism, which developed as a backlash against various social movements like the Civil Rights Movement in the 1960s and the spontaneous urban rebellions that characterized the decade.Part I of this Article series examines fear from a biological, political, and sociological perspective. It highlights how most Americans impute reasonability to statistically unjustifiable perceptions of danger. Part I also examines the concept of reasonableness and analyzes the native and inevitable partiality of the standard. Finally, Part I explores the relationship between the social value of unarmed victims of deadly force and the perceived reasonableness of an officer’s use of such force. It posits an inverse relationship between the perceived social status of the victim and the degree of statistical unreasonableness the law is willing to tolerate.The lower the victim’s rank on America’s racial hierarchy—the hierarchy created by nineteenth century pseudo-scientist Samuel Morton to justify slavery—the more likely decisionmakers are to find a statistically unjustifiable fear to be reasonable. African Americans are ranked the lowest. The same presumption of Black inferiority that Taney so boldly proclaimed in Dred Scott lies covertly beneath the contemporary Court’s decisions involving unarmed police killings.Part II of this Article series discusses the sea change in excessive force standards from the common law’s reasonableness standard to the current “rationalized fear” or “new dread” standard. Part II chronicles the change from different social, institutional, and legal perspectives, which have been factors influencing the sea change. These factors include: (1) the erosion of the common law right to resist an unlawful arrest; (2) the evolution of the modern police force; (3) the development of the law-and-order Supreme Court after the social tumult in the 1960s and the simultaneous development of radical social conservatism; (4) the Court’s holding in Graham v. Connor which was the first to express the shift legally; (5) the culture of police accountability encouraged by the law-and-order Supreme Court; and (6) the judicial creation and expansion of the qualified immunity doctrine. Part II exposes how the new dread standard operates by providing evidence that distills the current, amorphous excessive force rule into an articulable legal standard reflecting its true effect and intent.

Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court swiftly reversed itself, however, with Justice Lewis F. Powell, Jr. leading the effort to confine the reach of the securities laws. Powell succeeded in imposing a strict constructionism in securities law that never quite took hold in criminal or constitutional law. When there was a significant shift for the Court, securities law was prominent—at least until Powell’s retirement. Since then, the Court has meandered in its approach to securities law, its decisions neither expansive nor restrictive. The Court’s docket in this space has become a random walk of indifference.
 What is the future of securities law in the Supreme Court? We doubt that securities law’s bellwether status during its early days is likely to recur. The Securities and Exchange Commission, a groundbreaking agency of the 1930s, now seems like a small cog in a much larger administrative machine. Without prompting from the SEC, it is quite possible that the Court will continue to meander in the field of securities law. The Court— which Franklin Delano Roosevelt populated with appointees having front-line experience writing the securities statutes, running the SEC, or defending the constitutionality of the securities laws—has not had a member with any direct experience with securities law for more than thirty years.
 If the Court’s spotlight were to shine again on securities, we suggest it might well be a Chevron question of the SEC’s authority. Proponents of corporate social responsibility could push the boundaries of the securities laws beyond the SEC’s historical focus on disclosure. Such a move could also be met by a federalism challenge to securities law preempting the field of state corporate law. These possibilities might once again put securities law at the center of the Court’s work to develop the law of the administrative state.

ABSTRACT In Mahanoy Area School District v. B.L. (2021), the Supreme Court held a public school could not discipline a student for posting offensive snaps about her cheer team on social media. In an 8-to-1 decision siding with the student, the Justices reaffirmed Tinker v. Des Moines Independent Community School District (1969), a landmark decision by the Warren Court that extended speech rights to public school students. The majority in Mahanoy was, however, unwilling to “set forth a broad, highly general First Amendment rule stating just what counts as ‘off-campus’ speech and whether First Amendment standards must give way off-campus to the school’s desire to prevent … disruption of learning-related activities.” Instead, Justice Breyer offered a narrow opinion confined to the facts of the case that provides little practical guidance to students, school officials, and lower courts dealing with thorny issues related to off-campus speech. Further compounding matters, the “three features of off-campus speech” identified in his majority opinion will likely lead to more restrictions governing what students may say on their own time and using their own equipment.

Americans have engaged in constitutional trench warfare since the demise of the Warren Court. For almost fifty years, progressives and conservatives have fought pitched battles over a wide range of constitutional issues with each side on most fronts gaining only a few feet of constitutional turf. Abortion and the Law in America documents how this constitutional warfare has structured debates over abortion rights during that period. Professor Mary Ziegler meticulously details how a debate Laurence H. Tribe once called “the clash of absolutes” (Abortion: The Clash of Absolutes, 1990) has become bogged down in factual minutia about the “costs and benefits” of different abortion policies (p. 2). Whole Women's Health v. Hellerstedt (2016) and June Medical Services v. Russo (2020) illustrate how constitutional trench warfare works. As Ziegler documents, all parties in Whole Women's Health spent enormous energy building a factual record. The opinions in June Medical Services...

Journal of Supreme Court HistoryVolume 46, Issue 2 p. 181-205 ARTICLE Defending Democracy: Speeches of the Warren Court Justices and Brown v. Board of Education Robert A. Whitaker, Robert A. WhitakerSearch for more papers by this author Robert A. Whitaker, Robert A. WhitakerSearch for more papers by this author First published: 13 October 2021 https://doi.org/10.1111/jsch.12268Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume46, Issue2July 2021Pages 181-205 RelatedInformation

The Conservative Court Aryeh Neier (bio) Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America by Adam Cohen Penguin Press, 2020, 448 pp. In 1963, I started work at the American Civil Liberties Union. My assignment was to establish new affiliates of the organization in states such as Texas and Oklahoma and to upgrade the capacity of long-standing state affiliates, such as those in Michigan and Pennsylvania. It was a thrilling time [End Page 147] to be engaged in those tasks. ACLU activities were regularly punctuated by victories for civil liberties at the U.S. Supreme Court, many of them in cases argued by the lawyers I was working with. Those wins included cases substantially expanding the rights of criminal defendants to be treated fairly by the police and the courts, striking down loyalty oaths required of public employees, ending the censorship of movies, overturning the prohibition on interracial marriage, barring state-enforced religious practices, expanding the right to protest, upholding freedom of speech, equalizing the right to vote in state elections, requiring that welfare recipients should be treated fairly, and many more. Click for larger view View full resolution Chief Justice John Roberts in 2006 (Brooks Kraft LLC/Corbis via Getty Images) In 1970, fifty years after it was founded, I became the ACLU’s fourth national executive director, a post I held for the next eight years. It was a very different period on the court. Richard Nixon became president in 1969 and soon had the opportunity to designate Warren Burger as chief justice of the Supreme Court, replacing Earl Warren. He appointed three other justices during his first three years in office. The Nixon Court succeeded the Warren Court. The ACLU continued to prevail in some important cases. We supported the New York Times and the Washington Post in publishing the Pentagon Papers, helping to achieve a major victory for freedom of the press. We also established the pioneering Women’s Rights Project, directed by Ruth Bader Ginsburg, which won a series of victories before the Supreme Court that largely, though not completely, made overt discrimination against women as legally untenable as overt discrimination against racial minorities. Though we took pride in the quality of the legal work of Ginsburg and her colleagues in those cases, we recognized that more was involved than litigation strategy and skill. A crucial factor in our success was the transformative impact of the women’s rights movement on American society in the 1970s. Women were securing jobs and workplace responsibilities previously denied to them; they [End Page 148] were entering educational programs and professional specialties in which their presence had been scarce; they were enlisting men to share in domestic duties that most had previously disdained. Changes in the law required by our Supreme Court victories accompanied and facilitated these developments, but they did not take place in isolation. A similar process took place decades later when the Supreme Court struck down limits on gay rights, including the prohibition on same-sex marriage. Those decisions came down after the emergence of a substantial gay rights movement, which had already transformed American society by the early years of the twenty-first century. The Supreme Court’s decisions did not lead the way. ________ The legal victories for women’s rights and gay rights in the past half century have partially obscured the picture Adam Cohen paints in his important book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. Cohen, a former member of the New York Times editorial board, makes a compelling argument that since the advent of the Nixon Court, the highest court in the land has been a consistent ally of corporate interests and the wealthy and the enemy of Americans who are less economically fortunate, especially those who are racial minorities. He achieves this by systematically analyzing the Court’s decisions on welfare, education, voting rights, campaign finance, labor, corporate responsibility, and criminal justice over the past five decades. Cohen is particularly concerned with the Supreme Court’s treatment of poverty through its decisions dealing with welfare recipients. He writes that the Warren Court “appeared to be...

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases. Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina by Mark A. Davis