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Document Outline
From Commerce to Civil Rights
War and Patriotism
The Postwar Court
Subversion, Steel Seizure, and Segregation
Chief Justice Warren
The Road to “Red Monday”
The Reapportionment Revolution: One Person, One Vote Rule
The Reapportionment Revolution: Rights of the Accused
Civil Rights and Personal Liberty

Justice Black took his seat as the junior justice in October 1937, ushering in a new Court era, although actual changes would take some time. In December the Court announced its decision in Palko v. Connecticut (1937). [12] With Justice Benjamin N. Cardozo writing for the majority, the Court firmly declined to rule that the Fourteenth Amendment's guarantee of due process of law automatically extended the guarantees in the Bill of Rights to protect persons against state and local officials as it did against the federal government. Only those rights essential to a scheme of “ordered liberty”—that is, elements of the first ten amendments protecting against extreme and arbitrary government actions—were binding upon the states, Cardozo said. The newcomer, however, would help write a different rule. During Black's almost thirty-four years on the Court, the justices began to locate, one by one, almost all the guarantees of the Bill of Rights in this “essential” category.

A few months after Justice Black was seated, Justice George Sutherland retired at age seventy-five. To succeed him, Roosevelt named Solicitor General Stanley F. Reed. In mid-1938 Justice Cardozo died. In his place Roosevelt chose his close friend and adviser Felix Frankfurter, a Harvard law professor, who took his seat in early 1939. Soon after Frankfurter joined the Court, Justice Louis D. Brandeis, age eighty-two, resigned after serving on the Court for twenty-three years. He was succeeded by a man close to half his age; William O. Douglas, chairman of the Securities and Exchange Commission and a former Yale and Columbia law professor. Douglas served for thirty-six and a half years—longer than any justice in the Court's history. Late in 1939 Justice Pierce Butler died, at seventy-three. He was replaced by Attorney General Frank Murphy, and with this appointment in January 1940, Roosevelt nominees constituted a majority of the Court. Of the four staunch conservatives who had blocked the New Deal provisions, only Justice James C. McReynolds remained.

From Commerce to Civil Rights

The philosophical shift evident in the decisions of 1937 was reinforced by the rulings of the succeeding terms. Not only did the Court redirect its efforts away from matters of property rights and toward issues of personal rights, but also it began to develop different standards for the two types of cases. When faced with regulations of business or property, the justices deferred to Congress or the states and upheld the laws. They became more willing, however, to strike down federal and state laws that infringed upon civil rights and liberties. This change was illustrated in United States v. Carolene Products Co. (1938). In it, over McReynolds's lone dissent, the Court upheld a federal law barring the interstate transportation of certain milk products. In the majority opinion, Justice Harlan Fiske Stone tentatively set out a double standard for constitutional cases. When a law was challenged as impinging upon economic rights, he said, the Court would presume the law to be valid, unless the challenger could prove otherwise; if, however, a law was challenged as impinging upon personal liberties protected by the Bill of Rights, the Court might be less inclined to assume the law's validity. As Stone worded it, “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments.” [13]

The Court in 1940. Seated from left: Justices Owen J. Roberts, James C. McReynolds, Chief Justice Charles Evans Hughes, Justices Harlan Fiske Stone, Hugo L. Black. Standing from left: Justices William O. Douglas, Stanley F. Reed, Felix Frankfurter, Frank Murphy. (Source: Library of Congress.)

The reasoning behind such a double standard, Stone explained, was based upon the relationship of economic rights and personal rights to the political processes. Laws infringing upon the individual rights guaranteed by the Bill of Rights restricted the operation of the very processes that could be expected to produce the repeal of repressive legislation. Laws operating to curtail economic freedom, on the other hand, did not hinder the political processes that therefore could be used to repeal or modify the offending laws.

This new set of standards—plus the extension of the guarantees of the Bill of Rights to the states that began with Gitlow v. New York (1925)—provided the doctrinal underpinnings for the civil rights revolution to come. One observer calls the Carolene Products standard, set out in a footnote, “the manifesto in a footnote.” [14] In a steady line of decisions beginning with those announced on March 29, 1937, the Court upheld revised versions of virtually all the major New Deal legislation it had struck down in 1935 and 1936. [15] Abandoning its restrictive view of the relationship between states' rights and federal power, the Court overturned its earlier decisions granting the incomes of federal officials immunity from state taxes and granting those of state officials similar immunity from federal taxation. [16] This line of rulings—in which the Court also renounced many of the doctrines it had invoked to curtail state and federal power over economic matters—culminated in February 1941. By a unanimous vote the Court upheld the Fair Labor Standards Act of 1938, which prohibited child labor and set a maximum forty-hour workweek and a minimum wage of forty cents an hour for workers in interstate commerce.

This decision, in United States v. Darby (1941), specifically overruled Hammer v. Dagenhart (1918), which placed child labor beyond the reach of the federal commerce power. [17] The Court implicitly reaffirmed Hughes's earlier statement discarding the freedom of contract doctrine and declared the Tenth Amendment of no relevance to questions of federal power. Writing for the Court, Justice Stone explained that the justices viewed that amendment as “but a truism [stating] that all is retained which has not been surrendered.” [18] With this decision, legal scholar William F. Swindler writes, the Court returned to Marshall's view of the broad commerce power:

[A]fter half a century of backing and filling, the Court had come unequivocally to acknowledge that a plenary power over interstate commerce was vested in Congress, and that Congress was the sole judge of the appropriate use of this power. The new constitutionalism, in this, was returning to the concept enunciated by John Marshall a century before, that the commerce power “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.” [19]

Later in the term, the Court reversed another precedent and extended federal power in another direction. In United States v. Classic (1941) the Court acknowledged that Congress could regulate primary elections when they were an integral part of the process of selecting members of Congress. This decision overturned the Court's holding to the contrary in Newberry v. United States (1921). [20] Chief Justice Hughes, the attorney who had won the Newberry ruling, did not participate in the Classic decision.

In Justice Black's first term, questions of civil rights and individual freedom began to occupy more of the Court's attention. In March the Court unanimously held in Lovell v. Griffin (1938) that the First Amendment guarantee of freedom of religion was abridged when a city required Jehovah's Witnesses to be licensed before they could distribute religious literature to city residents. [21] In May the Court confirmed the broad scope of the Sixth Amendment right to counsel for federal defendants. The justices in Johnson v. Zerbst (1938) held that federal courts were constitutionally bound to provide defendants with legal counsel unless they waived that right. [22] In December the Court began seriously to test the constitutional validity of the separate but equal doctrine. The 1896 decision in Plessy v. Ferguson had made possible the pervasive racial segregation of American life. [23] In Missouri ex rel. Gaines v. Canada (1938) the Court held that the Constitution required a state providing white residents the opportunity for higher education to offer it to African Americans as well. [24] This promise of equal protection, wrote Chief Justice Hughes, was not fulfilled by a state's offering to pay the tuition for a black student to attend a law school in another state.

The following term the Court decided Hague v. CIO (1939), striking down a city ordinance used to prevent union organizers from meeting and discussing labor union membership and related subjects. [25] The First Amendment guarantee of free speech and assembly forbids such official restrictions, held the Court, and in Thornhill v. Alabama (1940) the Court extended this rationale to strike down a state law forbidding labor picketing. [26] The Court in Cantwell v. Connecticut (1940) also held that a state could not, without offending the First Amendment guarantees, convict persons for breach of the peace simply as a result of their making provocative statements about religion. [27]

War and Patriotism

The outbreak of war in Europe encouraged a resurgence of patriotic display in the United States. The Court's emerging views on state power and religious freedom were soon tested by Minersville School District v. Gobitis (1940). [28] State efforts to inculcate patriotism prevailed, at least temporarily, over religious freedom. The Court, 8–1, upheld a state's right to require public school students to recite daily the Pledge of Allegiance to the flag, even if the recitation conflicted with their religious beliefs. Justice Frankfurter wrote the majority opinion; only Justice Stone dissented.

Early in 1941 Justice McReynolds, the last of the conservative foursome of the New Deal, resigned at the age of seventy-eight after twenty-six years on the bench. At the end of the 1941 term, Chief Justice Hughes retired. Roosevelt chose Justice Stone, a Republican on the Court for sixteen years, to move to the center chair. To fill McReynolds's seat, Roosevelt chose Sen. James F. Byrnes of South Carolina. Byrnes did not find the post satisfying, and he resigned after one term, in October 1942, to take a more active role in the administration's war effort. As Byrnes's successor Roosevelt chose federal judge Wiley B. Rutledge, who took his seat in February 1943. To fill the seat Stone left vacant upon becoming chief justice, Roosevelt in 1941 chose Attorney General Robert H. Jackson.

The United States entered World War II early in Stone's first term as chief justice. War issues of personal liberty and government power dominated the Court's work during his tenure in that post. A special session was called in July 1942 so the Court could consider the constitutional challenge brought by Nazi saboteurs, arrested in the United States, to Roosevelt's decision to have them tried by a military commission, rather than in civilian courts. In Ex parte Quirin (1942) the Court upheld the president's actions as within the scope of the authority delegated to him by Congress. [29] In three other decisions, in 1943 and 1944, the Court also upheld against constitutional challenge the actions of the president and Congress restricting the liberty of persons of Japanese descent by imposing on them first a program of curfews and then removal from the West Coast to inland camps. The Court conceded the odious nature of ethnic distinctions, but found them justified in this particular wartime situation. [30] In one of these cases, however, Korematsu v. United States (1944), the Court for the first time declared that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect… . [T]he Courts must subject them to the most rigid scrutiny.” [31] Even while condoning severe infringements of personal liberty and individual rights in the war years, the Court laid the foundation for later decisions expanding those rights.

The Court in 1943. Seated from left: Justices Stanley Reed, Owen R. Roberts, Chief Justice Harlan Fiske Stone, Justices Hugo L. Black, Felix Frankfurter. Standing from left: Justices Robert H. Jackson, William O. Douglas, Frank Murphy, Wiley Blount Rutledge. (Source: Collection of the Supreme Court of the United States.)

A primary characteristic of the Court in the early 1940s, unlike its immediate predecessor, was its experimental approach to constitutional law, its “readiness to change new landmarks as well as old.” [32] This readiness was amply demonstrated in the October 1942, when the Court reversed two recent rulings concerning the First Amendment rights of Jehovah's Witnesses, a sect whose particular beliefs and evangelistic fervor brought its members into frequent collision with state and local authorities. In the 1940 Gobitis case the Court had upheld Pennsylvania's rule that schoolchildren, including Jehovah's Witnesses, participate in the Pledge of Allegiance each day. The Court in Jones v. Opelika (1942) upheld a city ordinance requiring street vendors—including Jehovah's Witnesses passing out religious material—to obtain city licenses for their activity. [33] The vote was 5–4. Justice Reed wrote the majority opinion. Three of the dissenters in Opelika—members of the majority in Gobitis—announced that they were ready to reverse the flag salute case. This unusual public confession of error came from Justices Black, Murphy, and Douglas.

Eleven months later, the Court reversed Opelika, returning to the view set out initially in Lovell v. Griffin that licenses could not be required of religious pamphleteers. By a 5–4 vote the Court in Murdock v. Pennsylvania (1943) struck down licensing requirements similar to those upheld in Opelika, finding that they burdened the free exercise of religion when they were applied to the Jehovah's Witnesses. Justices Frankfurter, Reed, Roberts, and Jackson dissented. [34] Six weeks after Murdock the Court reversed Gobitis. The vote in West Virginia Board of Education v. Barnette (1943) was 6–3. [35] In the majority were Stone, the lone dissenter in Gobitis, Black, Douglas, and Murphy, and two new justices—Jackson and Rutledge. Dissenting were Frankfurter, Reed, and Roberts. The new majority's view was eloquently stated by Jackson:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. [36]

In 1941 the Court had refused to hold that the Fourteenth Amendment required states to provide all criminal defendants the aid of an attorney. Justices Black, Douglas, and Murphy dissented from the ruling in Betts v. Brady (1942); twenty-one years later, Black wrote the landmark opinion in Gideon v. Wainwright (1963) overruling it. [37] The Court in Smith v. Allwright (1944) expanded its definition of state action to strike down, once again, Texas's effort to maintain its “white primary.” Relying on United States v. Classic, the Court effectively nullified Grovey v. Townsend (1935) by holding that when a primary election is an integral part of the electoral process, exclusion of African American voters by a political party is state action within the reach of the Fourteenth Amendment. [38]

Justice Robert H. Jackson took a leave of absence from the Supreme Court to act as chief prosecutor at the Nuremberg trials. Here he delivers the prosecution's opening statement in November 1945. (Source: United States Holocaust Memorial Museum, courtesy of Gerald (Gerd) Schwab. The views or opinions expressed in this book, and the context in which the image is used, do not necessarily reflect the views or policy of, nor imply approval or endorsement by, the United States Holocaust Memorial Museum.)

The Postwar Court

In mid-1945 Justice Roberts resigned. President Harry S. Truman selected a friend, Republican senator Harold Burton of Ohio, to fill the seat. Burton was the first Republican justice named by a Democratic president. Despite the addition of Burton, the Court operated for its October 1945 term with only eight members present, because Justice Jackson was serving as a prosecutor at the Nuremberg trials of Nazi war criminals. On April 22, 1946, the Court, over dissenting votes by Justices Frankfurter, Reed, and Stone, overruled several earlier decisions permitting conscientious objectors to become naturalized citizens, even if they were unwilling to bear arms in the defense of their adopted country. As Chief Justice Stone spoke from the bench to register his dissent in Girouard v. United States (1946) his voice faltered. [39] He had to be helped from the bench. He died that evening.

“The bench Stone headed was the most frequently divided, the most openly quarrelsome in history,” an observer writes. [40] That point was quickly borne out by events following Stone's death. A professional feud mixed with personal animosity erupted between Jackson, still absent in Europe, and Justice Black, now the Court's senior member. Many assumed that Truman would elevate Jackson to the post of chief justice, and rumors flew that two other justices had said they would resign if that happened. Hoping to smooth over these differences, Truman chose Secretary of the Treasury Fred M. Vinson to be chief justice.

After Stone's passing, the Court—now with only seven participating members—announced its decision to strike down state laws requiring separate seating for black and white passengers on interstate buses. In Morgan v. Virginia (1946) the Court held that the requirement was a burden on interstate commerce. [41] Seating rules for interstate vehicles were a matter for uniform national regulation, said the Court. This decision effectively reversed Louisville, New Orleans and Texas Railway Co. v. Mississippi (1890). [42] The Court by a 4–3 vote in Colegrove v. Green (1946) declined to enter the “political thicket” of electoral malapportionment. [43]

Questions of individual freedom came before the Court in increasing numbers during the postwar years. In its first rulings on the application of the First Amendment's Establishment Clause to state action, the Court in 1947 began a long effort to determine when and in what manner a state may provide aid to parochial schools or students at such schools without infringing on the amendment's guarantee. Hugo Black, speaking for a unanimous Court, said the First Amendment was “in the words of [Thomas] Jefferson, … intended to erect a ‘wall of separation between church and state.’” In Adamson v. California (1947) the Court reaffirmed its view that the Due Process Clause of the Fourteenth Amendment did not require states to abide by all the provisions of the Bill of Rights. [44] In dissent, however, Black laid out the historical basis for concluding that the framers of the Fourteenth Amendment intended to extend the reach of the Bill of Rights and to protect individuals from state and local laws that infringed those rights. Despite its decision in Adamson, the Court in that same term simply assumed that the Eighth Amendment ban on cruel and unusual punishment applied to state action. [45] In Wolf v. Colorado (1949) the Court declared that the states, like the federal government, were bound by the Fourth Amendment guarantee of security against unreasonable searches and seizures, but it gave this declaration little practical effect by refusing to require that state judges exclude evidence obtained in violation of the guarantee. [46] In 1948 the Court effectively prohibited the use of restrictive covenants to perpetuate housing segregation. In Shelley v. Kraemer (1948) the Court held that individuals could not enforce deed restrictions that barred the selling of property to African Americans or Jews. [47]

In mid-1949 Justice Murphy died, and President Truman selected Attorney General Tom C. Clark to fill his seat. Almost as soon as Clark was confirmed, Justice Rutledge died. Truman named a federal judge, Sherman Minton, a colleague from his days as a senator, to that seat.

The Court in 1950. Seated from left: Justices Felix Frankfurter, Hugo L. Black, Chief Justice Frederick M. Vinson, Justices Stanley F. Reed, William O. Douglas. Standing from left: Justices Tom C. Clark, Robert H. Jackson, Harold H. Burton, Sherman Minton. (Source: Collection of the Supreme Court of the United States.)

Subversion, Steel Seizure, and Segregation

Cold war issues and the emerging civil rights movement dominated the work of the Supreme Court during most of the 1950s. Intense national concern over the threat of communism produced a variety of laws and programs intended to prevent domestic subversion. Many of these antisubversive efforts were challenged as infringing on freedoms of belief and expression protected by the First Amendment. The Court ruled on the first of these challenges in American Communications Association v. Douds (1950) and upheld the Taft-Hartley Act's requirement that all labor union officers swear they were not members of the Communist Party. Chief Justice Vinson explained that Congress, under its commerce power, had the authority to impose such a requirement to avoid politically based strikes impeding the flow of interstate commerce. Justice Black in dissent argued that the Commerce Clause did not restrict “the right to think.” [48] The following year the Court in Dennis v. United States (1951) upheld the Smith Act, which made it unlawful to advocate or teach the violent overthrow of government in the United States or to belong to an organization dedicated to the accomplishment of these ends. The Court upheld the convictions of eleven leaders of the U.S. Communist Party under the act. Chief Justice Vinson wrote the opinion; Justices Black and Douglas dissented. [49] During this term the Supreme Court also upheld the power of the attorney general to prepare a list of organizations considered subversive and backed state power to require public employees to take an oath denying membership in the Communist Party. [50]

Dwight D. Eisenhower (Source: National Park Service/Dwight D. Eisenhower Presidential Library & Museum.)

Earl Warren (Source: Collection of the Supreme Court of the United States.)

By the beginning of 1950 President Truman had named four justices to the Court, including the chief justice. And all nine justices were Democratic appointees. When he found himself before the Court in May 1952 defending his decision to seize the nation's major steel companies to avoid a strike and disruption of steel production during the Korean War, the president might have expected a favorable decision. Instead, the Court rebuked Truman, ruling that he had acted illegally and without constitutional authority. The vote in Youngstown Sheet and Tube Co. v. Sawyer (1952) was 6–3. In an opinion by Justice Black, the majority upheld a lower court's order blocking the seizure. [51] Justices Burton and Clark voted against Truman; Chief Justice Vinson and Justice Minton voted for him. The decision marked one of the rare instances in which the Supreme Court flatly told the president he had overreached the limits of the chief executive's constitutional power. And it was a mark of the Court's power that President Truman, fuming, complied.

In June 1950 the Court had announced two unanimous decisions that further called into question the continuing validity of the separate but equal doctrine it had espoused in Plessy fifty-five years earlier. In Sweatt v. Painter (1950) the Court ordered the University of Texas law school to admit an African American student, finding that the educational opportunity provided by a newly created “black” law school in the state was in no way equal to that at the university law school. [52] The state did not fulfill the promise of equal protection under the Fourteenth Amendment by providing a separate black law school, held the Court in an opinion written by Chief Justice Vinson. In McLaurin v. Oklahoma State Regents (1950) the Court rebuffed the effort of the University of Oklahoma, forced by court order to accept an African American student, to segregate that student in all phases of campus life. [53] A year and a half later, in December 1952, the Court heard arguments in a group of five cases challenging the segregation of public elementary and secondary schools. The cases are collectively known by the title of one—Brown v. Board of Education of Topeka. [54] In June 1953 the Court ordered reargument in the October 1953 term. In a special term called in the summer of 1953, the Court considered a stay of execution granted by Justice Douglas for Julius and Ethel Rosenberg, convicted under the Espionage Act of 1917 of passing nuclear secrets to the Soviet Union. The Court—over the dissents of Black and Douglas—lifted the stay, allowing the Rosenbergs to be executed. [55] Douglas's grandstanding and rash granting of the stay sparked the first of several unsuccessful impeachment attempts against him.

Chief Justice Warren

Chief Justice Vinson's last years on the bench were difficult. In addition to addressing sensitive questions of antisubversive legislation, the face-off with Truman over the steel seizure case and the tense special session considering the Rosenberg case confirmed Justice Holmes's description of the Court as the quiet center of national storms. In September 1953, less than three months after the Rosenberg decision, Vinson died. President Dwight D. Eisenhower then had the task of selecting a new chief justice within his first year of taking office. California governor Earl Warren, who ran unsuccessfully for vice president in 1948, was instrumental in Eisenhower's gaining the GOP nomination in 1952, by delivering his state's delegates to Eisenhower at the party's national convention in Chicago. In return, Ike told Warren he would select him for the Supreme Court at his first opportunity. As governor during World War II, Warren had supported the relocation of residents of Japanese ancestry. He had just announced that he would not run for a fourth gubernatorial term when Vinson died. Explaining his choice, President Eisenhower said that he had selected Warren for his “integrity, honesty, middle-of-the-road philosophy.” [56] Warren received a recess appointment and began serving as the October 1953 term opened. He was confirmed in March 1954.

Brown v. Board of Education (1954)

When the Brown cases were reargued in December 1953, Warren presided over the Court. A confident and natural leader, the new chief justice was determined the Court should speak with one voice in such a momentous decision. Warren announced the decision for a unanimous Court on May 17, 1954, reversing Plessy v. Ferguson. In his first major opinion, he said,

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. [57]

Richard Kluger, twenty years later, assesses the impact of Brown this way:

Having proclaimed the equality of all men in the preamble to the Declaration of Independence, the nation's founders had then elected, out of deference to the slave-holding South, to omit that definition of equalitarian democracy from the Constitution. It took a terrible civil war to correct that omission. But the Civil War amendments were soon drained of their original intention to lift the black man to meaningful membership in American society. The Court itself would do much to assist in that process, and Plessy was its most brutal blow. Congress passed no civil rights laws after the Court-eviscerated one of 1875, and those that remained on the books were largely ignored by the states and unenforced by federal administration.

It was into this moral void that the Supreme Court under Chief Justice Warren now stepped. Its opinion in Brown v. Board of Education, for all its economy, represented nothing short of a reconsecration of American ideals. [58]

In April 1955 rearguments were held on the question of implementing the Brown decision. In May Brown II set out the standard—the states should proceed to end segregation in public schools with “all deliberate speed.” [59] Again the Court was unanimous; again Warren was its spokesman.

Although the Court had carefully limited its opinion to the subject of schools, “it became almost immediately clear that Brown had in effect wiped out all forms of state-sanctioned segregation.” [60] The impact of Brown was so fundamental—and public reaction to it so broad and deep—that it tends to dominate all descriptions of the Court's work during the 1950s. Yet with the exception of its ruling in Cooper v. Aaron (1958) rebuking Gov. Orval Faubus of Arkansas for his resistance to desegregation, the Court did not hand down another major civil rights decision until the 1960s. [61] In case after case challenging various forms of segregation, the Court did not hear arguments but simply told lower courts to reconsider them in light of Brown. Resistance to these rulings was fierce and was soon felt in Congress. The period from 1954 to 1960, writes William Swindler, was one of “tension between the high tribunal and Congress unparalleled even by the early years of the 1930s.” [62] This time, however, the roles were reversed: the Court was the vanguard of change, and Congress the bulwark of reaction. “On one level, Brown was remarkably ineffective. By 1964, a decade after the first decision, less than 2 percent of the formerly segregated school districts had experienced any desegregation,” writes Dennis J. Hutchinson, a Court historian. “Yet Brown was a potent catalyst for ambitious social change.” [63]

The tension between Congress and the Court created by the school desegregation decisions was further heightened by subsequent decisions invalidating federal and state antisubversive programs and imposing new due process requirements on police practices. The Court struck down a state sedition law, holding in Pennsylvania v. Nelson (1956) that when Congress passed the Smith Act, it had preempted state power to punish efforts to overthrow the federal government. That same term, the Court in Slochower v. Board of Education (1956) held that a state could not automatically dismiss employees simply because they invoked their Fifth Amendment right to remain silent when questioned by congressional committees. [64] The Court also applied the equal protection guarantee to require that a state provide an indigent defendant with a free transcript of his trial so that he might appeal his conviction. In Griffin v. Illinois (1956), as in Slochower, Justices Burton, Minton, Reed, and the newest justice, John Marshall Harlan, dissented. [65]

The Eisenhower Justices

Just as the October 1954 term opened, Justice Jackson died. To succeed him, President Eisenhower chose Harlan, grandson and namesake of the famous dissenting justice whose career spanned the turn of the twentieth century. Harlan, a distinguished New York attorney, was confirmed in March 1955. Two years later, in October 1956, Justice Minton retired, and Eisenhower, running for a second term, nominated an Irish Catholic from New Jersey who was a Democrat. William Joseph Brennan Jr., a judge on the New Jersey Supreme Court, was the first member of the Court born in the twentieth century, and he became an important strategist of Warren Court liberalism in a career that spanned more than three decades.

Early in 1957 Justice Reed retired after nineteen years on the bench. Eisenhower nominated Charles Whittaker, a federal judge from Kansas. In October 1958 Justice Burton retired, giving Eisenhower his fifth and last vacancy to fill. For that seat Eisenhower chose Potter Stewart, a federal judge from Ohio. Seated in the fall of 1958 as a recess appointment (as were Harlan and Brennan), Stewart was confirmed in May 1959.

The Road to “Red Monday”

The criticism aroused by the Brown cases and some of the Court's other decisions during Chief Justice Warren's early years intensified in reaction to several lines of decisions in the late 1950s. The Court in Dennis v. United States (1951) had upheld the Smith Act, under which the leaders of the U.S. Communist Party were prosecuted for advocating the violent overthrow of the federal government. Six years later, the Court in Yates v. United States (1957) set such a strict standard for convictions under the Smith Act that it made successful prosecutions under the law almost impossible. [66] Justice Harlan wrote the Court's opinion, making clear that only advocacy of subversive activity could be penalized without infringing on the First Amendment. The same day the Court in Watkins v. United States (1957) reversed the contempt citation of a witness who had refused to answer questions from the House Un-American Activities Committee about the Communist Party membership of other persons. [67] These opinions and two others announced the same day led conservative critics to label June 17, 1957, “Red Monday”—as May 27, 1935, had been “Black Monday” and March 29, 1937, “White Monday” for supporters of the New Deal. [68]

The Court in 1954. Seated from left: Justices Felix Frankfurter, Hugo L. Black, Chief Justice Earl Warren, Justices Stanley F. Reed, William O. Douglas. Standing from left: Justices Tom C. Clark, Robert H. Jackson, Harold H. Burton, Sherman Minton. (Source: Collection of the Supreme Court of the United States.)

Public and political criticism of the Court was fierce. Legislation was proposed to reverse or circumvent the June 17 decisions and to withdraw the Court's jurisdiction over all matters of loyalty and subversion. Southerners critical of Brown joined others unhappy over the antisubversive rulings to raise congressional hostility toward the Court to a point unprecedented in the twentieth century. A week after Red Monday the Court in Mallory v. United States (1957) overturned a young man's conviction for rape because he had been interrogated too long without being informed of his rights and held too long between arrest and arraignment. [69] The Court was unanimous in this ruling; the criticism was almost as unified. The same day the Court in Roth v. United States (1957) made clear that obscene material did not have First Amendment protection, embarking on the long and difficult process of describing what is and what is not obscene. [70] In a special session in July 1957, the Court cleared the way for Japanese courts to try an American soldier for killing a Japanese woman on an army rifle range, another ruling that won the Court few friends. [71]

In 1958 the Court began to give full constitutional recognition to the freedom of association, striking down Alabama's efforts to force the National Association for the Advancement of Colored People (NAACP) to disclose its membership lists. [72] A second special session was called late in the summer to consider the Little Rock, Arkansas, desegregation case. The Court in Cooper v. Aaron (1958) unanimously rejected city officials' request for delay in implementing the desegregation plan for the city's schools. [73]

The Reapportionment Revolution: One Person, One Vote Rule

In Brown v. Board of Education the Supreme Court set off a long overdue revolution in civil rights. After Brown the Court played only a secondary role in the accelerating civil rights movement, leaving Congress to implement, at last, the guarantees of the Civil War amendments through effective legislation. Now, when civil rights legislation was challenged, as it had been during Reconstruction, the Court upheld it as constitutional. In the area of voting rights, however, the Court—unexpectedly—took the lead.

In many states, thinly populated rural districts had the same voting power in the state legislature as crowded cities. The Court had rebuffed a constitutional challenge to this maldistribution of voters among electoral districts in 1946, declaring such a matter a political question beyond its purview in Colegrove v. Green. In Baker v. Carr (1962) the Court abandoned that cautious stance and held that constitutional challenges to such malapportionment of political power were indeed questions the courts might decide. This ruling was foreshadowed by the decision in Gomillion v. Lightfoot (1960), in which the Court unanimously agreed that a state, in gerrymandering a district to exclude all African Americans, had clearly violated the Fifteenth Amendment. [74] Because such state action violated a specific constitutional guarantee, held the Court, it was properly a matter for federal judicial consideration. Baker v. Carr arose from Tennessee's failure to redistrict for most of the twentieth century, which had resulted in electoral districts for the state legislature of grossly unequal population. This maldistribution of electoral power was challenged as violating the Fourteenth Amendment guarantee of equal protection. Abandoning the “political thicket” view of Colegrove v. Green, the majority held that this was clearly a constitutional case within the jurisdiction of the federal courts.

Later in 1962 Justices Whittaker and Frankfurter retired. President John F. Kennedy named Deputy Attorney General Byron R. White, an all-American football star known nationwide as “Whizzer” White, to the first seat, and Secretary of Labor Arthur Goldberg, a well-respected union negotiator, to fill the second seat. White took his seat in April 1962, and Goldberg was seated at the beginning of the October 1962 term.

In March 1963 the Court set out the standard for constitutionally valid reapportionment plans. In Gray v. Sanders (1963) Justice Douglas wrote for the Court that the promise of political equality, contained in the nation's most basic documents, meant “one person, one vote.” A year later, the Court applied that rule to congressional redistricting in Wesberry v. Sanders (1964). [75] Four months later in Reynolds v. Sims (1964) the justices held that the same standard applied to the electoral districts for the members of both houses of the states' legislatures. The result of these rulings, which Warren considered the most important of his tenure, was the redistribution of political power in Congress and every state legislature. The Court in Kirkpatrick v. Preisler (1969) reaffirmed its commitment to this standard, requiring congressional districts within a state to be mathematically equal in population. [76]

The Reapportionment Revolution: Rights of the Accused

Involving itself in still another area traditionally left to state control, the Court in the 1960s accelerated the step-by-step application of the Bill of Rights to state law enforcement and criminal procedures. By 1969 the Court had required states to abide by virtually every major provision. The Court did so by holding that each of these rights was essential to the due process of law mandated by the Fourteenth Amendment. The first major ruling in this due process revolution came in a 5–4 vote in Mapp v. Ohio (1961), in which the Court held that evidence obtained in violation of the Fourth Amendment guarantee of security against unreasonable search and seizure must be excluded from use in state, as well as federal, courts, thereby nationalizing the exclusionary rule. [77] Justice Clark wrote the opinion; Justices Frankfurter, Harlan, Stewart, and Whittaker dissented.

A year later the Court for the first time applied the Eighth Amendment ban on cruel and unusual punishment to strike down a state law. In Robinson v. California (1962) the Court held that a state could not make narcotics addiction a crime. After that the Court declared in Gideon v. Wainwright (1963) that states must provide legal assistance for all defendants charged with serious crimes. [78] If defendants are unable to pay for an attorney, the state must provide one for them, wrote Justice Black for the unanimous Court, overruling the Court's refusal in Betts v. Brady (1942) to extend this right to state defendants. [79] In June 1964, on the same day the Court decided Reynolds v. Sims, it also held that states must observe the Fifth Amendment privilege against compelled self-incrimination. The vote in Malloy v. Hogan (1964) was 5–4; Justice Brennan wrote the opinion, and Justices Clark, Harlan, Stewart, and White dissented. [80] A week later, by the same vote, the Court held in Escobedo v. Illinois (1964) that suspects have a right to legal assistance as soon as they are the focus of a police investigation. In April 1965 the Supreme Court overruled Twining v. New Jersey (1908) and held that state judges and prosecutors may not comment adversely upon the failure of defendants to testify in their own defense. Such comment infringes upon the Fifth Amendment right to remain silent, declared the Court in Griffin v. California (1965). [81]

The most controversial Warren Court criminal law ruling came the following term in June 1966. In Miranda v. Arizona (1966) the Court held 5–4 that police may not interrogate suspects in custody unless they have been informed of their right to remain silent, that their words may be used against them, and they have the right to a lawyer. [82] If suspects wish to remain silent or to contact an attorney, interrogation must cease until they wish to speak or until their attorney is present. Statements obtained in violation of this rule may not be used in court. Chief Justice Warren wrote the majority opinion; dissenting were Justices Clark, Harlan, Stewart, and White. The next term, as criticism of the Court mounted in Congress and in statehouses across the nation, the Court extended to state defendants the right to a speedy trial, enlarged the due process guarantees for juvenile defendants, and brought wiretapping and electronic surveillance under the strictures of the Fourth Amendment warrant requirement. [83]

This step-by-step process of applying the Bill of Rights against state as well as federal action was nearly complete with its rulings in Duncan v. Louisiana (1968) and Benton v. Maryland (1969). [84] In Duncan the Court announced that it was extending the right to a jury trial to state defendants. On Warren's last day as chief justice, the Court announced Benton, extending the guarantee against double jeopardy to states. (See box, “Cases Incorporating Provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment,” p. 438.)

Civil Rights and Personal Liberty

Questions of freedom of belief and association, arising from the antisubversive measures of the 1950s, were still before the Court during the 1960s. Generally, the Court scrutinized these restrictive measures closely and often found some constitutional flaw. The Court had upheld the constitutionality of the Subversive Activities Control Act of 1950, under which the Communist Party was required to register with the Justice Department, but this ruling in Communist Party v. Subversive Activities Control Board (1961), came by a 5–4 vote. Four years later a unanimous Court held in Albertson v. SACB (1965) that individuals could not be compelled to register under the law without violating the Fifth Amendment protection against self-incrimination. [85] In 1966 the Court closely circumscribed the use of state loyalty oaths, and in 1967 it struck down the portion of the Subversive Activities Control Act that made it a criminal offense for a member of a “subversive” group to hold a job in the defense industry. [86]

In 1964 Congress at last reasserted its long-dormant power to implement the promises of the Civil War amendments through legislation. Passage of the comprehensive 1964 Civil Rights Act was followed in 1965 by the Voting Rights Act and in 1968 by the Fair Housing Act. The Supreme Court, unlike the Court of the 1870s and 1880s, reinforced congressional action, finding these revolutionary statutes clearly constitutional. The Court in Heart of Atlanta Motel v. United States (1964) unanimously upheld the contested public accommodations provisions of the Civil Rights Act. [87] Justice Clark wrote the opinion, making use of the Commerce Clause and the Fourteenth Amendment. Two years later the Court rebuffed a broad challenge to the Voting Rights Act of 1965 as violating states' rights. In South Carolina v. Katzenbach (1966) the Court, with only Justice Black dissenting in part, upheld the sweeping statute as within the power of Congress to enforce the Fifteenth Amendment guarantee against racial discrimination in voting. Even as Congress was debating the Fair Housing Act, the Court in Jones v. Mayer (1968) reinterpreted the Civil Rights Act of 1866 to prohibit racial discrimination in the sale of real estate. [88]

Throughout the 1960s the Court exercised a supervisory role over the desegregation efforts of school systems across the country. In its first major school ruling since Brown in 1954, the Court in Griffin v. County School Board of Prince Edward County (1964) said that a state could not avoid the obligation of desegregating its public schools by closing them down. Four years later, in Green v. County School Board of New Kent County (1968) the Court declared that “freedom of choice” desegregation plans were acceptable only when they were effective in desegregating a school system. [89] The Court made clear that, in its view, there had been entirely too much deliberation and not enough speed in the nation's effort to implement Brown.

The Court in the 1960s also substantially expanded constitutional protection for the exercise of highly personal rights. In Griswold v. Connecticut (1965) the Court struck down as unconstitutional a state law forbidding all use of contraceptives, including by married couples. [90] The justices could not agree on the exact constitutional basis for this ruling, but they did agree there were some areas so private that the Constitution protected them from state interference. Two years later the Court, using similar reasoning in Loving v. Virginia (1967), held it unconstitutional for a state to forbid a person of one race to marry a member of another race. [91]

The criticism the Warren Court engendered by its rulings on national security programs, segregation, and criminal procedures reached a new crescendo with the Court's school prayer decisions. On the basis of the First Amendment's ban on state action establishing religion, the Court held that neither a state nor its school officials may prescribe a prayer or other religious statement for use in public schools. The decision in Engel v. Vitale (1962) was followed in 1963 by a second ruling denying a state power to require Bible reading as a daily religious exercise in public schools. [92] The Supreme Court also expanded the meaning of other First Amendment provisions. In the landmark libel case of New York Times v. Sullivan (1964), the Court enlarged the protection the First Amendment provided the press by stating that public officials and public figures could recover damages for libelous statements made by the news media only if they could prove the statements were published with “actual malice.” [93] Early in 1969 the Court held that the First Amendment's protection for symbolic speech guaranteed students the right to engage in peaceful nondisruptive protest of the war in Vietnam through the wearing of black armbands to school. [94]

Also during the 1960s, in decisions that drew far less public attention, the Court made it easier for state prisoners, federal taxpayers, and persons threatened by state action to approach federal courts for assistance. In March 1963, on the same day the Court announced its decisions in Gray v. Sanders and Gideon v. Wainwright, in Fay v. Noia it relaxed the requirements placed upon state prisoners who wished to challenge their detention in federal courts. [95] Two years later, in Dombrowski v. Pfister (1965) the Court indicated that federal judges should not hesitate to intervene and halt ongoing state proceedings under a law challenged as violating the First Amendment. [96] In Flast v. Cohen (1968) the Court substantially modified its decision in Frothingham v. Mellon (1923) and said taxpayers may sue if they believe tax funds are being used to promote or subsidize religion. [97]

In 1965 President Lyndon B. Johnson, impatient to place a justice of his own choosing on the Supreme Court, succeeded in persuading Justice Goldberg to leave the Court for the post of ambassador to the United Nations. To replace him, Johnson chose a reluctant Washington attorney Abe Fortas, a close friend and adviser of the president's who had rebuffed earlier offers. Fortas, the winning attorney in Gideon v. Wainwright. did not want to give up his law practice, but Johnson prevailed. He was seated just before the October 1965 term began. Justice Tom Clark resigned two years later, when his son, Ramsey Clark, became attorney general. To fill Clark's seat, Johnson nominated the nation's first African American justice, Thurgood Marshall, who had argued the Brown cases for the NAACP Legal Defense and Educational Fund. Marshall began his service just before the opening of the October 1967 term. At the end of that term, in 1968, Chief Justice Warren informed Johnson that he intended to retire as soon as a successor to him was confirmed. Johnson promptly nominated Justice Fortas as chief justice.

Thurgood Marshall, the first African American to serve on the Supreme Court, was legal director of the NAACP from 1940 to 1961. During his tenure, one of the organization's prime directives was to overturn racial segregation, especially in public schools. (Source: Collection of the Supreme Court of the United States.)

Johnson was a lame duck; he had announced in March 1968 that he would not run for reelection. The Republicans had hopes of winning the White House and wished to have their candidate, Richard Nixon, select the new chief justice. These hopes were given added significance because the Court had become a major campaign issue. Nixon criticized the Court for “coddling criminals” and promised to appoint justices who would turn a more receptive ear to the arguments of the police and prosecutors. Charges of conflict of interest and of cronyism—related to Fortas's continued unofficial role as adviser to Johnson—further compounded the difficulties of his nomination as chief justice. After a filibuster stymied the nomination in October 1968, Johnson withdrew it, at Fortas's request. Simultaneously, Johnson withdrew his nomination of federal judge Homer Thornberry of Texas to succeed Fortas as associate justice. In May 1969 Fortas resigned his seat under threat of impeachment, the result of a magazine article accusing him with unethical behavior. Fortas asserted his innocence in his letter of resignation and said he left the Court to avoid placing it under unnecessary stress.

On June 23, 1969, Chief Justice Warren retired, leaving a Court and a country dramatically changed since 1953, in significant part by the Court's decisions during his sixteen years there. Many of those decisions were still controversial at his retirement, as was the liberal judicial activism that they had encouraged in lower federal courts, and some state courts, across the country. Under Warren's leadership, the Court had exerted a strong liberalizing force on American life.

One historian of the Warren Court says its work is best understood “as an assault on the South as a unique legal and cultural region. The South had created, by law and custom (backed by whatever force was necessary), a caste system based on white supremacy. From laws against miscegenation, to laws mandating segregation, to subterfuges maintaining a basically all-white electorate, to the use of peremptory challenges to ban African Americans from juries, to the enforced customs of better jobs for whites… . This was the society that the Court set about dismantling in Brown,” writes Lucas A. Powe Jr., a University of Texas professor of law and government. “With the huge and essential reinforcements provided by the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the effort to transform the ‘southern way of life’ was successful as a legal matter,” he adds. [98] The Warren-era rejection of racial discrimination and the “one person, one vote” rule for legislatures were “sacrosanct” after Warren stepped down, Powe says. But, he concludes, the Warren Court's criminal law decisions and its invocation of a “wall of separation between church and state” were controversial when they were announced in the 1960s, and they remain so today.

For decades years after Warren's retirement, Republican presidents, including Richard Nixon, Ronald Reagan, and George W. Bush, worked hard to undo Warren's legacy and the liberal activism it had spawned. Their appointments were intended to put the Court on a more conservative course, but they did not always succeed.


Document Citation
1 David G. Savage, The Court, Civil Liberties, and Civil Rights, 1938–1968, in Guide to the U.S. Supreme Court 52-64 (5th ed., 2011),
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