In the early 1830s Alexis de Tocqueville observed that sooner or later, every important American political issue ends up in the courts. The judiciary of the United States thus occupies a unique institutional role. Americans are a litigious people, and lawyers are a higher percentage of the population in the United States than in any other nation. It is the judiciary that must resolve these disputes. Judges occupy a venerated position in the United States, unlike those of most other nations, where they are regarded more as bureaucrats than as important formulators of policy. Because the rule of law occupies a place in the United States something like the monarchy or the established church once did in European nations, those who administer the law are particularly venerated. They are also the subject of great controversy, and have been since the earliest days of the Republic.
English and Colonial Antecedents
The American judicial system is based on that of Great Britain, but the manner in which justice was administered in England and the colonies is not what it came to be in the United States. Until the twentieth century, English judges were regarded as executive officials, "lions under the throne," as a sixteenth-century term had it. The king was regarded as the law speaking, and although the king's place as the font of law was challenged by the common law judges and this role of the monarch was later displaced by Parliament, throughout much of English history judges were removable at the discretion of the Crown or Parliament. Colonial judges were subject to dismissal by the royally appointed colonial governors or by officials in London. Colonial courts applied English common law, but the decisions of those courts could be overruled by English administrators. Thus, prior to the American Revolution it could not be said that judges had much prestige or that Americans had an independent judiciary.
From Independence to the Civil War
The new state constitutions in 1776, like the federal Constitution in 1789, generally established independent judiciaries as branches of government coequal to the legislatures and executives. The notions expressed in constitutions that liberty requires separating judging from legislating and that it was the job of the judges independently to implement the sovereign will of the people began to take hold. Judges were no longer removable at executive or legislative whim but were, at the federal level and increasingly at the state level, guaranteed tenure during good behavior. An early tension between the state and federal courts was resolved after the political struggles over the Judiciary Act of 1789 and the Judiciary Act of 1801, which generally favored the state courts as the principal forums for the resolution of legal disputes and the development of private law doctrines, such as property, torts, contracts, and corporations.
At a time when the "United States" was a plural rather than a singular noun, it is not surprising that state courts and state governments in general exercised the greatest influence over the lives of American citizens. Nevertheless, even in the early years of the Republic the federal courts and in particular the U.S. Supreme Court, in the exercise of judicial review, enforced some constitutional restrictions against the states. In one of the most important decisions of this kind, Chief Justice John Marshall held in Mcculloch v. Maryland (1819) that the state of Maryland could not tax the federally incorporated Bank of the United States. That same year in the Dartmouth College Case, Marshall overturned the decision of the New Hampshire Supreme Court that the state legislature could alter the charter of Dartmouth College, in effect transforming it from a public to a private university. Somewhat later, in Swift v. Tyson (1842), Justice Joseph Story, in spite of a provision of the 1789 Judiciary Act that required him to follow the laws of the states in which the federal courts were situated, ruled that in commercial law matters, the federal courts could impose a rule based on general understandings of the common law rather than the case law of the state in which the federal court sat.
These were exceptional cases, however. In general, unless a clear conflict existed between state and federal statutes or between state law and the federal Constitution, the federal courts gave the state courts and legislatures broad discretion. The best example of this attitude is the Charles River Bridge Case (1836), decided shortly after Chief Justice Roger Taney replaced Chief Justice Marshall. The state of Massachusetts had chartered a bridge to compete with the Charles River Bridge, the beneficiary of an earlier state charter. The Charles River Bridge attorneys argued that its charter implied that the state would not authorize at some future date a new bridge that would drive the Charles River Bridge out of business. Dartmouth College could have been read to support this argument, but Taney, writing for the Court, rejected it, arguing that the country's developmental needs required competition and progress in the means of transportation and that Massachusetts should be permitted to charter competing bridges in the public interest.
The goals of commercial progress and social mobility reflected in Taney's Charles River Bridge decision seem also to have motivated scores of state common law judges, who altered private law doctrines taken from the hierarchical, status-based and agricultural English society to fit an increasingly democratic, growth-orientated, and entrepreneurial American culture. In the early days of the Republic, Americans feared that judges, and in particular federal judges, might turn into an inconvenient aristocracy, oppressing the people with the great discretion the power of judicial review conferred on them. Instead, as Tocqueville predicted, judges and lawyers seem to have moved the law in a more democratic direction. Indeed, in the state judiciaries, to keep judges responsive to the people, election of judges became more common than executive appointments.
The controversy over slavery in the territories in the fifth decade of the nineteenth century, however, resulted in a Supreme Court decision that seriously damaged the prestige of the Court. That decision may have contributed to a climate in which the judiciary ceased for a time to play a significant role in refashioning the law in keeping with social needs. In the Dred Scottcase (1857), Chief Justice Taney, writing for the Court in a 7 to 2 decision, ruled that the Constitution prevented Congress from prohibiting slavery in the territories, and also ruled that even freed slaves could not, in the contemplation of the Constitution, be treated as citizens. The decision may have been conceived as way of quelling sectional discontent, but it had the opposite effect. Many historians believe it was instrumental in causing the Civil War.
From the Civil War to the New Deal
From the end of the Civil War until the third decade of the twentieth century, the Supreme Court for the most part played what might be described as a conservative role in national political life, defending the freedom of businesses to make contracts and generally reining in legislatures that sought to impose regulations. For example, in Lochner v. New York (1905), over a strong dissent from Justice Oliver Wendell Holmes Jr., the Court held that to allow New York to regulate the hours of bakers would violate the freedom of contract guaranteed by the Fourteenth Amendment.
The Court did, however, permit some federal regulations to pass constitutional muster, for example, with regard to the Interstate Commerce Act (1887) and the Sherman Antitrust Act (1890). Moreover, while the Court was, in Lochner and other cases, hostile to the general idea of regulating freedom of contract, it did permit states to regulate wages and hours in particularly dangerous industries or to protect groups that might not possess sufficient bargaining power. Among other significant decisions, the Court held in Plessy v. Ferguson (1896) that it was permissible to impose racial separation in public transportation so long as the facilities provided were "separate but equal." And in Bradwell v. Illinois (1872) the Court held that, in spite of the Fourteenth Amendment's guarantee of "equal protection of the law" to all persons, women did not have to be admitted to the practice of law.
The reforms at the end of the nineteenth century and the beginning of the twentieth century were characterized more by constitutional amendments and legislative initiatives than by progressive decisions of the courts. Similarly, the common law administered by the state courts was changed relatively little. Democratic and egalitarian advances, such as the progressive income tax, securing the franchise and professional equality for women, giving adopted children rights of inheritance, or creating property rights for spouses, were accomplished by amendments or laws, not by court decisions. Indeed, many commentators have suggested that judges at both the state and federal levels were generally hostile to such changes and narrowly construed both constitutional amendments and legislation where it differed from the common law or previously prevailing constitutional jurisprudence.
From the New Deal to the Twenty-First Century
All of that changed in the last six decades of the twentieth century. During the Great Depression, the federal government under Franklin D. Roosevelt instituted an ambitious program of social legislation unlike anything ever seen before. At first the Supreme Court tended to rule that the federal government did not possess the constitutional power to dictate rules for the general management of the nation's economy, for example, in Schechter Poultry Corporation v. United States (1935). That decision held that congressional power to regulate inter-state commerce did not permit the setting of wages, hours, and reporting requirements for a New York chicken slaughterhouse, even if the chickens had been transported from other states. But by 1937 the Court seemed to change course in a move some called "the switch in time that saved nine." In National Labor Relations Board v. Jones and Laughlin Steel Corporation, the Court held that the federal government could set up a scheme to foster collective bargaining on wages and hours and other matters that could reach even manufacturing plants within particular states. From 1937 until 1995 no federal regulatory scheme was held insufficient on interstate commerce grounds. At the same time that the Supreme Court embraced doctrines permitting greater federal regulation, it also rejected the expansive notion of freedom of contract that previously had hindered both state and federal measures.
The reasons for the Supreme Court's abrupt about-face on these matters have been the subject of debate ever since, but it seems safe to say that two factors were of importance. One was the continued popularity of President Roosevelt, whose landslide victory in 1936 and whose attacks on the "nine old men" who were frustrating his plans for national economic recovery may have struck home. Indeed, Roosevelt's threat to "pack the Court" by increasing the number of justices with appointments of persons more friendly to regulation may have been taken seriously.
Just as important as politics was a change in jurisprudential understanding that occurred roughly contemporaneous with the "switch in time." After Oliver Wendell Holmes Jr. published his classic The Common Law in 1881, lawyers and law professors more commonly understood that the judicial role, over the course of American history, included a strong legislative component. At the beginning of the twentieth century even establishment figures, like Harvard's dean Roscoe Pound, railed against "mechanical jurisprudence" and urged its replacement with "sociological jurisprudence," in which the judges as well as legislators understood more clearly their obligation to alter the law in a progressive manner. In the early 1930s, some critics, calling themselves legal realists, began to challenge the whole idea of following precedent and the claim that legal and doctrinal questions had objective answers. Whether or not legal realism had a strong influence on what some called the judicial revolution of 1937, the doctrine was profoundly influential in fomenting the explosion of legal doctrinal change that was ushered in with Chief Justice Earl Warren.
The Warren Court (1953–1969). The Warren Court's most famous decision, rendered soon after the new chief justice ascended the bench, was Brown v. Board of Education of Topeka (1954), in which the court ruled that state-sponsored school segregation violated the Fourteenth Amendment. This decision departed from the original understanding of the amendment, but Warren justified it on the grounds that the country could not "turn back the clock" to the time of the amendment or the time of the framing of the Constitution. This signaled that the Court had expressly embraced the notion of a "living Constitution," made equally clear in the jurisprudence of other liberal members of the Court, including in particular William O. Douglas and William Brennan. Other justices, most prominently Hugo L. Black, urged interpretation according to the original understanding of constitutional provisions. Still others, such as Felix Frankfurter and John Marshall Harlan II, counseled what came to be referred to as judicial restraint, the notion that legal change should be left to other branches of government.
To a great extent, however, the views of Warren, Douglas, and Brennan prevailed, and the Supreme Court proceeded expansively to cite the Fourteenth Amendment, in particular to end the practice of state-sponsored school prayer, to rewrite the rules of criminal prosecution in the states, and to order legislative reapportionment of both houses of state governments according to the principle of "one person one vote." The Court also considerably broadened the freedoms of speech and press guaranteed under the First Amendment far beyond that contemplated by the framers, believing that such expansion was necessary to achieve the country's professed democratic and egalitarian goals.
The tendency in American legal history is for changes in the interpretation of common law doctrines to accompany or to follow changes in constitutional law jurisprudence. Just as an explosion of common law changes followed the establishment of an independent United States and a federal Constitution, so a major alteration of the common law followed in the wake of the Warren Court's activities. State court judges, who then comprised (and continued to comprise into the twenty-first century) roughly 95 percent of the nation's judiciary, began to alter the rules regarding contracts, torts, and property.
Contract law, which had tended to defer to the expressed intentions of the parties, increasingly was interpreted to allow the courts to set aside agreements in which one party had taken unconscionable advantage of another or to allow them, when unanticipated events occurred, more or less to rewrite the parties' arrangements. The law of torts, which had generally not imposed liability where actors had performed in a manner that was not negligent, changed in the case of the manufacturers of consumer goods to impose liability where products left the factory in an "unreasonably dangerous" condition, even in the absence of negligence. In addition, the rules of property, which had tended to favor landlords and had been strictly interpreted in favor of established ownership interests, were relaxed to favor tenants, and lease agreements were interpreted more liberally to promote equity rather than to increase certainty. Just as the general culture seemed to undergo radical change in the 1960s, both constitutional and private law were dramatically altered at the hands of the judiciary.
The Burger Court (1969–1986). Not everyone in the legal profession or the nation was comfortable with the activist legal realist approach of the Warren Court. In 1969, when Richard Nixon had the opportunity to name a new chief justice upon Warren's retirement, he nominated Warren Earl Burger, a conservative from Minnesota. Some Burger Court decisions restricted the ambit of the Warren Court era by, for example, limiting access to the federal courts, particularly for those seeking to overturn decisions of the executive branch. Still, in one of its most notable decisions, United States v. Nixon (1974), the Court, while recognizing the doctrine of executive privilege, ruled that under the circumstances the president could not conceal evidence of wrong doing when sought by a prosecutor in a criminal case. The implication was clear as well that executive privilege could not be used to conceal evidence of presidential wrongdoing in the course of impeachment proceedings, as the federal courts were to rule a quarter of a century later in the case of President William Jefferson Clinton.
From the vantage point of history, it is striking how little the Burger Court altered the "living Constitution" philosophy of the Warren Court or the jurisprudence of the "switch in time." The Burger Court did not significantly diminish the regulatory power of the federal government, which dramatically expanded during those years, and the Warren Court's emphasis on the rights of the individual was if anything dramatically increased by the most famous decision of the Burger Court, Roe v. Wade (1973). An earlier decision of the Warren Court, Griswold v. Connecticut (1965), had announced an implicit "right to privacy" in the Constitution, said to inhere in "emanations and penumbras" of various amendments. In Roe this "right of privacy" became solidly anchored in the Fourteenth Amendment's due process clause, and the Court announced in a remarkable 7 to 2 decision that for any state to prohibit abortion in the first three months of a woman's pregnancy would be a violation of due process. Thus, substantive due process, the doctrine invoked in Dred Scott, endorsed in Lochner, and rejected during the course of the "switch in time," reappeared in a new guise and established constitutional "freedom of choice."
Many constitutional scholars sought a coherent doctrinal defense for Roe based on precedent, but virtually all conceded that the decision represented a policy choice made by the justices against prohibiting abortion. Their choice was consistent with emerging legislative trends in the states, but the availability of abortion by judicial choice was difficult for many Americans to accept. Subsequently, this sort of judicial activism became a hot topic of political debate. Each year on the anniversary of Roe, antiabortion and pro-choice demonstrators stage noisy rallies in front of the Supreme Court's august edifice, and political campaigns and judicial nominations often turn on the issues of reproductive freedom and judicial legislation.
The Rehnquist Court. Ronald Reagan, elected president in 1980, followed the Republicans' practice of campaigning on a platform of ending judicial activism. Consequently, his nominations to the Court were expected to be persons committed to rolling back the expansionist decisions of the Warren and Burger Courts. Accordingly, some of his nominees encountered resistance in the Senate from those who favored the decisions, primarily Democrats. One nominee, Robert Bork, was defeated on the explicit charge that he would "turn back the clock" to a time when unfair racial treatment and "back-alley" abortions prevailed. This charge was undoubtedly unfounded, but it demonstrated the vitriol often employed regarding the courts and the strong influence they had come to wield in American society. Indeed, it often seemed as if not only did every political dispute sooner or later become a judicial matter, as Tocqueville had said, but that virtually all judicial matters eventually became political fodder.
When President Reagan nominated a conservative sitting justice, William S. Rehnquist, to become chief justice, Rehnquist too encountered strong resistance and the suggestion by critics that he would move the Court in a reactionary direction. Nevertheless, the Senate confirmed Rehnquist, and though he personally dissented, his Court in 1992 affirmed two of the most controversial Warren and Burger Court decisions. The Court ruled in Lee v. Weisman (1992) that the school prayer decisions should be extended to prohibit state-sponsored prayer at graduation ceremonies. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court reaffirmed the declaration in Roe v. Wade of a constitutional right of privacy and interpreted it to bar all prohibitions on abortion that imposed an "undue burden" on a woman's right to choose. Unlike Roe, Casey did not dictate a solution based on a trimester model of pregnancy. But Casey did continue to recognize the right of the states to protect the potential life of the fetus and to prohibit abortion when the fetus was viable, except in cases where the life or health of the mother was at stake.
In other areas, however, and increasingly at the end of the twentieth century, the Rehnquist Court showed signs of changing constitutional jurisprudence. Most important in this regard was a series of decisions called the Court's "new federalism," of which United States v. Lopez (1995) was the most important. In Lopez the Court sought to impose limits on the federal government's exercise of regulatory powers and to move closer toward the original constitutional scheme in which the states were the primary lawmakers. For the first time since the "switch in time," the Court seemed prepared to strike down federal regulations on a regular basis. At the beginning of the twenty-first century, judicial activism was again at the center of national politics, as the presidential candidates Al Gore and George W. Bush stated their preferences or dislikes for the jurisprudence practiced by individual members of the U.S. Supreme Court. In an ironic development, the Rehnquist Court decided the outcome of that election for Bush by a 5 to 4 vote in Bush v. Gore (2000).
At the beginning of the twenty-first century, the Court faced difficult choices between the jurisprudences of the "living Constitution" and the "original understanding" in cases involving state aid to religious schools, affirmative action, and the balance between the powers of the state and federal governments. In 2001 the Senate held hearings on "judicial ideology," and because the Rehnquist Court decided many controversial cases by 5 to 4 majorities, any vacancies on the Supreme Court were expected to result in confirmation struggles. Indeed, so delicate was the matter of judicial selection that nine months into George W. Bush's term, with more than one hundred vacancies on the lower federal court benches, the Senate had confirmed only a handful of the new president's judicial nominees.
In the state courts, the rules of the common law did not seem to undergo reformulation in the same activist manner as previously. Indeed, a movement began for legislative "civil justice reform" to reverse the tendency of state juries to render multimillion-dollar and in some cases multibillion-dollar verdicts against corporate defendants. State legislatures began to pass such civil justice reforms, including limiting the amount of recoverable damages and putting other procedural roadblocks in the way of plaintiffs and their lawyers. Many of these "reforms" were ruled unconstitutional by state courts, based on provisions in state constitutions that guaranteed plaintiffs rights to trial by jury and that mandated the separation of the judicial power from the legislative.
State and federal courts and legislatures also seemed engaged in the promulgation of rules designed to protect property owners and investors in order to strengthen an American economy that faced stiffer competition from European and Asian concerns. Some American industries, such as asbestos, tobacco, and commercial aviation, were bankrupted or severely damaged by litigation, and anti-trust regulators at the state and federal levels sought to move against titans, such as Microsoft, accused of predatory practices against consumers and competitors. The outcome of these struggles was unclear, but the trend at the beginning of the twenty-first century, at least, was toward the resolution of these important economic disputes by legislatures and executives rather than by the courts.
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