This entry is a subentry of History of the Court.

The United States entered the decade of the 1920s with a probusiness mentality. The free‐enterprise system would provide Americans with the highest standard of living in the history of the world, and most Americans did not want to do anything to threaten that system. On the Supreme Court, the decade also began with the conservative majority sensitive to real or perceived threats to property rights and less concerned about individual liberties. In the three decades that followed, however, the Court's agenda turned completely around, and by 1954 the question of property rights had receded to a relatively unimportant place on the Court's docket. Instead, the judiciary had taken the lead in extending constitutional protections of life and liberty to all of the nation's citizens.

During the Progressive era, the Supreme Court had shown itself surprisingly receptive to the protective legislation passed by the states and Congress to ameliorate the harshest aspects of industrial life (see Progressivism). Although in the most famous of these cases Lochner v. New York (1905), a 5‐to‐4 majority struck down a state working‐hours law, that case was really an aberration from the generally positive record of the Court.

The Taft Court

By the end of World War I, however, a distinctly conservative tone had set in, despite the appointment of the liberals Louis D. Brandeis and John H. Clarke to the bench, as evidenced in the first child labor case, Hammer v. Dagenhart (1918). This conservative cast took a distinctly stronger tone with the appointment of William Howard Taft as chief justice in 1921.

The Court during the decade that Taft occupied the center chair is a study in contradictions. On the one hand, it took an uncompromisingly probusiness stance and steadfastly opposed both state and federal efforts to regulate the economy; on the other, it showed a clear sympathy for individual liberties.

Probusiness Decisions

Given the makeup of the Court, its tilt in favor of business is hardly surprising. Taft strongly believed in the sanctity of property rights and assumed that the Court should play a major role in sustaining a constitutional system that upheld those rights. Taft found a strong ally in Justice James C. McReynolds, the near‐reactionary former attorney general whose antitrust sentiment had led President Woodrow Wilson to mistakenly assume that McReynolds was a progressive. Taft used his political influence with the Harding administration to secure the appointment of George Sutherland, Pierce Butler, and Edward Sanford to the bench. Together with Justices Willis Van Devanter and Mahlon Pitney, whom Taft had appointed when was president, they made a comfortable majority to strike down legislation that attempted to regulate business. Only Justices Oliver Wendell Holmes and Brandeis opposed this view; Justice Clarke had resigned from the Court in 1922 to take up the work of the League of Nations.

The environment of the 1920s strongly favored business, so much so that Calvin Coolidge could say that “the business of America is business.” Industry expanded enormously in the postwar decade and in doing so significantly raised the American standard of living. By the time Herbert Hoover ran for president in 1928, he could confidently predict that poverty would soon disappear from American life. Just let businessmen alone, and the free enterprise economy would do the rest (see Capitalism).

The conservative majority on the Court shared this sentiment. It practically emasculated the Federal Trade Commission in FTC v. Curtis Publishing Co. (1923), in which Justice McReynolds dismissed the FTC's factual investigation and held that courts could reexamine evidence de novo. A business could thus stymie the FTC by claiming that it had not evaluated the evidence properly and then tie up the agency in court for years. The Court had similarly tied the hands of state regulatory agencies in Southwestern Bell Telephone Co. v. Public Service Commission of Missouri (1923).

The antilabor bias that had marked the Court for more than three decades continued unabated during the 1920s, even though labor leaders believed they had won a significant victory in the Clayton Antitrust Act of 1914. Section 6 of that act had specifically declared that labor did not constitute a commodity or an article of commerce and that the antitrust laws should not be used to hinder unions seeking legitimate objectives. Section 20 directly responded to the widespread use of injunctions against unions, prohibiting federal courts from issuing injunctions in labor disputes “unless necessary to prevent irreparable injury to property, or to a property right.”

Despite the clear intent of the law, the Taft Court found a way around it. In *Duplex Printing Press Co. v. Deering (1921), Justice Pitney interpreted the law not to apply to secondary boycotts and held that injunctions could therefore be issued not only against the immediate parties to the labor disputes but also against anyone trying to help the unions. This decision came immediately after Truax v. Corrigan (1921), in which the Court voided a state anti‐injunction statute. The two decisions are indicative of what some scholars have labeled dual federalism, a gray area in which neither the states nor the federal government could operate. As a result, both state and federal courts continued to issue injunctions in labor disputes as if the Clayton Act had never been passed, and the matter was not settled until Congress passed the Norris‐LaGuardia Anti‐Injunction Act in 1932, when the depression had undermined the influence of business interests.

Protective legislation also fared poorly in the Taft Court. After the first child‐labor case, in which the Court had said that Congress could not regulate child labor under the Commerce Clause, Congress had passed a second bill, utilizing its taxing powers, which up to that time had been considered practically unlimited (see Commerce Power). Nonetheless, in Bailey v. Drexel Furniture Co. (1922), the Court struck down the second Child Labor Act on the grounds that Congress could not use the taxing power to achieve an end forbidden it under the Commerce Clause (see Taxing and Spending Clause).

But the one decision that epitomized the probusiness attitude of the Court in this era was Adkins v. Children's Hospital (1923), which led even some conservatives to protest. In striking down a District of Columbia minimum‐wage statute for women, Justice Sutherland resurrected the Lochner doctrine and reaffirmed the supremacy of freedom of contract in economic affairs. By this time the nation believed, based on several court decisions going back to Muller v. Oregon (1908), that states and the federal government could protect women under the police power. Sutherland, however, held that the Nineteenth Amendment had emancipated women and that they no longer needed special protection (see Gender). This proved too much even for Taft, who could hardly be described as a liberal, and who issued one of his rare dissents, claiming that Congress had the power to pass such legislation and that the courts should not interpose their views concerning the wisdom of such legislation.

Following Adkins, the Court found approximately 140 state laws unconstitutional, most on the grounds that they violated the rights of property and contract guaranteed by the Due Process Clause of the Fourteenth Amendment. Even where there had been a clear line of precedent supporting regulatory legislation, the Court reinterpreted it in a probusiness manner. Thus in Wolff Packing Co. v. Court of Industrial Relations (1923), Taft struck down a state experiment in labor relations by taking a narrow view of “business affected with a public interest.” But practically no enterprise would fit into this category, a conclusion reinforced in Tyson v. Banton (1927) and Ribnik v. McBride (1928) when the Court voided state efforts to control ticket and employment agencies, both of which, it said, had no relation to public interest regardless of what the state had decided.

It is hardly surprising that throughout the decade the National Association of Manufacturers passed resolutions praising the Supreme Court as the “indispensable interpreter of our written Constitution” and the protector of property from the “babel voices of the mob.” So long as the nation continued to be prosperous, it appeared that business could do no wrong, and the Court, despite powerful protests from Justices Holmes and Brandeis, would make sure that government did not interfere with business.

Civil Liberties

One might have expected that a Court so overwhelmingly probusiness and antilabor would have been indifferent if not actually hostile to civil rights and civil liberties. There are some cases that support this view, such as the infamous Buck v. Bell (1927), in which Holmes upheld a state compulsory sterilization law on the grounds that “three generations of imbeciles are enough” (p. 207). The Court that had shown little concern for freedom of speech in the postwar years a decade later upheld government investigation through wiretaps in Olmstead v. United States (1928). Yet the story is not simple. The clash between tradition and modernism going on in the larger society had its reflex within the Court, which during the 1920s took the first steps toward a modern jurisprudence of civil rights and civil liberties.

Although reformers won few victories during the 1920s, the reform spirit remained alive in Congress and the states through the efforts of people like Wisconsin senator Robert M. La Follette, New York senator Robert Wagner, and labor reformer Florence Kelley. The spirit of legal reform, at least in the academies, also showed itself far from dead. Legal scholars at Yale and Columbia established the foundations of “legal realism,” which would revolutionize legal thinking in the years to come.

Holmes, in his Lowell Lectures on the common law in 1881, had suggested that all sorts of nonlegal matters affected the law even more than abstract logic. During the early part of the century, advocates of “sociological jurisprudence” had used this insight in an effort to get courts to take economic and social facts into account; the most famous example was the brief Brandeis submitted in the Muller case to support the Oregon working‐hours law (see Brandeis Brief).

The legal realists went even further, seeing law not as fixed but as constantly in flux, responding to changing social conditions. Moreover, as Karl Llewellyn and others argued, one had to look not at legal rules but at how law actually came to be, and this involved a wide variety of social, economic, and even psychological factors. Judges did not “discover” law; they made it, and the courts provided the creative response necessary to keep law abreast of the times.

The realists found some allies on the bench, such as Learned Hand and Benjamin N. Cardozo, but on the Supreme Court they looked especially to Brandeis. Although we often talk about “Holmes and Brandeis” dissenting, Holmes is remembered mostly for his wit, style, and ability to sum up an argument in a pithy epigram while Brandeis, in his lengthy dissents, provided the analysis of the law and, especially, the facts and conditions surrounding a law that would influence future jurisprudence.

Brandeis led the way, for example, in his dissent in Gilbert v. Minnesota (1920), a speech case in which he suggested for the first time that the liberties protected by the Fourteenth Amendment might include civil liberties as well as property rights. That argument began to take on substance when Justice McReynolds, in Meyer v. Nebraska (1923), struck down a state law forbidding the teaching of foreign languages in elementary school. Liberty, McReynolds declared, went beyond freedom from bodily restraint to include “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (p. 399). (See Education.)

Two years later, McReynolds again spoke for a unanimous Court in Pierce v. Society of Sisters (1925) in striking down an Oregon law, inspired by the Ku Klux Klan, that had the clear intent of driving Catholic schools out of business. McReynolds found the right to educate one's children to be another liberty protected by the Fourteenth Amendment. This decision led the American Civil Liberties Union to challenge a New York Criminal Anarchy Act on the grounds that it violated free speech.

Ever since Barron v. Baltimore (1833) the Bill of Rights had been held to apply only to the federal government and not to the states. Brandeis's suggestion that the Fourteenth Amendment somehow “incorporated” the provisions of the first eight amendments, making them applicable to the states as well as to the federal government, bore fruit in Gitlow v. New York (1925). Although a 7‐to‐2 majority of the Court upheld the New York statute, Justice Sanford noted that “for present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights protected by the due process clause of the Fourteenth Amendment from impairment by the States” (p. 666). It would be several years before the full impact of this holding would be felt, and it would then trigger a major jurisprudential debate over the extent to which the Fourteenth Amendment incorporated other rights (see Incorporation Doctrine).

The Taft Court, however, began this process of “nationalizing” rights in an area that had traditionally been left entirely to the discretion of the states, criminal law. In Moore v. Dempsey (1923), Holmes ruled that a federal court should hear the appeal of five African‐Americans, convicted of first‐degree murder by an Arkansas state court, where the constant threat of mob violence had tainted the proceedings. And in the infamous Scottsboro case, Powell v. Alabama (1932), Justice Sutherland specifically applied the Fifth Amendment right to a fair trial to the states (see Trial by Jury).

Not all of the Taft Court decisions furthered civil rights or civil liberties. In Corrigan v. Buckley (1926), the justices unanimously refused to invalidate racially restrictive covenants as violative of due process. The justices also showed little concern for other racial groups, upholding a variety of state and federal restrictions on Asians and aliens. For instance, the Court in United States v. Schwimmer (1929) sustained the denial of a citizenship application because of the applicant's pacifist views.

Even though the Court extended the reach of the First Amendment, a majority showed little concern for the actual protection of free speech. In one of the most famous cases of the decade, Whitney v. California (1927), the majority upheld the conviction of Anita Whitney under the California Criminal Syndicalism Act for helping to organize a communist party in that state. Justice Brandeis concurred in the result on technical grounds, but his opinion remains one of the strongest defenses of freedom of speech ever penned by a member of the Court, setting out for the first time the idea of free speech as an essential requisite for active citizenship in a republic.

Brandeis also claimed that the Constitution protected privacy in his dissent in the wiretapping case, Olmstead v. United States. Chief Justice Taft's opinion for the majority declared that, since there had been no actual physical intrusion into the house, wiretapping did not violate the Fourth Amendment. This elicited a short dissent from Holmes, who called wiretapping a “dirty business,” and a longer and well‐reasoned scholarly analysis from Justice Butler, generally considered a conservative. But Brandeis, in dissent, evoked the spirit of the Fourth Amendment, which he declared protected Americans in their right to be let alone, “the most comprehensive of rights, and the right most valued by civilized man” (p. 478). Wiretapping remained legally permissible, although Congress outlawed the use of wiretap service in federal courts in 1934. Not until Berger v. New York (1967) did the Court overrule Olmstead and adopt the Brandeis view. Two years before that, in Griswold v. Connecticut (1965), the Court recognized privacy as a constitutionally protected right.

The Hughes Court

The mixed record of the Court during the Taft years left no clear legacy to its successors, although its hesitant first steps in incorporating the Bill of Rights and establishing national standards would lead the way to one of the great jurisprudential developments of the twentieth century. But the underlying context of the Taft Court—the probusiness attitude of the nation—collapsed in late 1929. When Charles Evans Hughes took Taft's place in the center chair, he and the Court faced a variety of new challenges generated by the Depression and Franklin D. Roosevelt's New Deal efforts to deal with the economy.

The Hughes Court retained a solid bloc of four conservative judges—McReynolds, Van Devanter, Sutherland and Butler—opposed to any and all efforts by the government to regulate business. The smaller bloc of liberals would have permitted the states and the federal government greater leeway in responding to the crisis. This group consisted of Justices Brandeis, Harlan Fiske Stone, and the widely respected Benjamin N. Cardozo, who had taken Holmes's place in 1932. In the middle of this spectrum were Hughes and Justice Owen J. Roberts, appointed to the Court by Herbert Hoover in 1930, either one of whom would give the “Four Horsemen,” as the conservative bloc came to be known, a majority in opposing reform legislation.

The New Deal under Fire

State efforts to regulate business reached the Court in New State Ice Co. v. Liebmann (1932). Oklahoma had attempted to stabilize the ice market by requiring new entrants to secure a certificate of convenience. The majority struck down the bill as exceeding the state's power and denied that ice‐making affected the public interest. Justice Brandeis's dissent is notable for several reasons. First, he painstakingly explored the various economic factors that had led the state to pass the legislation. Second, he called on his fellow justices to practice judicial self‐restraint and not interpose their views in place of the action of duly elected legislators. And then, in a most eloquent manner, he spoke of the nature of federalism and the advantages of having individual states serve as social laboratories in the face of an overwhelming national crisis.

Onlookers believed that perhaps this message had gotten through, because soon afterwards the Court did uphold two state laws aimed at ameliorating the effects of the depression. It sustained a Minnesota mortgage moratorium in Home Building and Loan Association v. Blaisdell (1934) and a New York price‐fixing statute in Nebbia v. New York (1934). These decisions, both reached by bare 5‐to‐4 majorities, did not bode well for the New Deal, which unlike any reform movement that preceded it tried to manage as well as reform the economy. President Roosevelt compared the depression to war and proposed drastic and innovative legislation to deal with the crisis. Without getting into the question of whether the New Deal actually relieved the Depression, one can say that conservatives bitterly opposed the government's efforts to regulate the economy and especially its efforts to help labor and other underprivileged groups. One can also say that the American people, as evidenced in the 1936 election, overwhelmingly supported the New Deal. They agreed with Roosevelt's philosophy that something had to be done—and that if one measure did not work, something else should be tried. The New Deal can be seen, in part, as the legislative analogue of legal realism, with its emphasis not on abstract theory but on fact: that is, did a program work or not.

This pragmatism left the conservative bloc on the Court aghast, and beginning in 1935 it struck down state and federal laws one after another. It voided the oil regulation section of the National Recovery Administration in Panama Refining Co. v. Ryan, the highly praised Railroad Retirement Act of 1934 in Retirement Board v. Alton Railroad Co., and then, on Black Monday, 27 May 1935, it invalidated the National Industrial Recovery Act in Schechter Poultry Corp. v. United States, the Frazier‐Lemke Mortgage Act in Louisville Joint Stock Land Bank v. Radford, and severely restricted the president's power to remove members of independent regulatory commissions in Humphrey's Executor v. United States (see Appointment and Removal Power). Soon after, it voided New York's model minimum‐wage law in Morehead v. New York ex rel. Tipaldo (1936), struck down the Agricultural Adjustment Act in United States v. Butler (1936), and invalidated the Guffy‐Snyder Coal Act in *Carter v. Carter Coal Co. (1936).

Not all of these were 5‐to‐4 decisions. In some cases Chief Justice Hughes joined with the conservatives to make it a 6‐to‐3 vote. In a few instances, such as the case involving the NRA, even the liberals believed the statute so badly drawn that they also voted to invalidate. And the administration did win a few decisions. By narrow votes the Court sustained the New Deal's abandonment of the gold standard in the Gold Clause Cases and also upheld the Tennessee Valley Authority in Ashwander v. Tennessee Valley Authority (1936).

The Court‐Packing Plan

Despite these few victories, the administration believed that it could not get its reform measures past the Court, and, shortly after his landslide victory in the 1936 election, Roosevelt unveiled his court‐packing plan, which would have added up to six justices on the high court and forty‐four on the lower benches. Although Roosevelt claimed that he only wanted to alleviate a crowded docket, the transparency of the scheme doomed it. Chief Justice Hughes, joined by Justices Brandeis and Van Devanter, wrote a letter to the Senate Judiciary Committee denying that the Court had fallen behind in its work. An increase in justices, instead of making the Court more efficient, would only cause delays because of “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”

Conservatives opposed the plan, but so did many liberals and moderates who perceived the plan as an attack on the independence of the judiciary. Moreover, if a liberal president could pack the Court now, then a conservative could do the same in the future. After months of bitter debate, the Senate finally voted the measure down on 28 July 1937.

By then, however, the president might well have believed that even if he had lost the battle, he had won the war. In West Coast Hotel Co. v. Parrish (1937), decided in the midst of the court‐packing battle, the Court sustained a Washington State minimum‐wage law in a case practically identical to Morehead. This time Justice Roberts voted to sustain the measure, leading wags to claim that “a switch in time saves nine.” Actually, the case had been heard and decided—but not announced—before Roosevelt's message. Roberts, who always hewed to a narrow definition of judging, never explained his vote, but his papers indicate clearly that in the earlier case, counsel had not asked the Court to overrule the Adkins holding and that he therefore felt bound to decide Morehead in light of Adkins. In the later case the lawyers did ask the Court to reconsider Adkins; Roberts did, found it wanting, and in West Coast Hotel voted to overrule it.

After West Coast Hotel the Court sustained every New Deal measure that came before it. Moreover, with the retirement of Justice Van Devanter, Roosevelt now had the opportunity of naming men sympathetic to the New Deal, which he proceeded to do. In 1938 he appointed Hugo Black and Stanley Reed; in 1939 Felix Frankfurter and William O. Douglas joined the bench; and in the next few years Frank Murphy, Robert H. Jackson and Wiley Rutledge came on board. Instead of the cramped and narrow interpretation of federal powers that the “Four Horsemen” had espoused, the Roosevelt Court adopted a far more expansive view of the commerce and taxing powers. By the time the Court decided Wickard v. Filburn (1942), it had expanded the affecting commerce doctrine so that almost any activity could be so defined.

One might well look at the court‐packing fight as a marker to delineate the changing agenda of the Supreme Court. Prior to 1940, the bulk of the Court's cases, and the controversy surrounding them, dealt with economic matters—the balancing of property rights against legislatively determined public welfare. With the transformation of the Court following 1937, economic matters played an increasingly smaller and less important role on the Court's agenda. As Brandeis had urged, so long as the legislature had the power, judges should defer to the wisdom of the elected branches and not interpose their own policy views. Although the Court continues to hear economic cases, it has established a rule of great deference to the legislature, sustaining economic regulations if at least a rational basis can be put forward to explain the legislative policy.

The Court also extended a far greater tolerance to state legislation, reviving the nineteenth‐century rule of Cooley v. Board of Wardens (1852) that in areas where the federal government had not asserted its commerce power the states could exercise their own authority (see Selective Exclusiveness). And, once again following Brandeis's assertion that in a federal system national courts should wherever possible follow local law, the Court did away, at least temporarily, with federal common law doctrines in Erie Railroad Co. v. Tompkins (1938). By the eve of World War II, the Supreme Court stood poised to go down a new path, one that would constitute the bulk of its agenda for the rest of the century, namely, marking out how far the Constitution protected individual rights and liberties.

Incorporation Doctrine

The question of rights, of course, had never been totally absent from the docket, but beginning in the 1920s, with the idea of incorporation, it took on a new immediacy. Starting in the late 1930s, more and more cases testing the reach of constitutional liberties came before the Court, triggering one of the major jurisprudential debates in its history.

In 1937 the Court heard Palko v. Connecticut, in which the defendant in a state criminal prosecution claimed that the Fourteenth Amendment applied the Fifth Amendment's guarantee against double jeopardy to the states. Justice Cardozo said that it did not and put forward a theory of “selective incorporation.” The Fourteenth Amendment did, he said, incorporate all the provisions of the First Amendment, since freedom of expression is “the matrix, the indispensible condition” (p. 327) for nearly every other form of freedom. (The Press Clause had been incorporated earlier in Near v. Minnesota, 1931). But as for the Second through Eighth Amendments, the Court should apply only those that are “of the very essence of a scheme of ordered liberty” and so deeply rooted in American traditions as to be considered fundamental (p. 325).

World War II

Over the next ten years, Justice Black, who voted with the majority in Palko, grew increasingly uncomfortable with selective incorporation because he believed it left too much discretion in the hands of justices. He finally reached the point he was seeking a decade later, in his dissent in Adamson v. California (1947), where he put forward the idea of “total incorporation.” All the guarantees of the first eight amendments, Black said, applied to the states as well as to the federal government.

The chief opponent of Black's view, and the main defender of selective incorporation, was Justice Frankfurter, who also argued for judicial deference to legislatures. Frankfurter exercised a great deal of influence on the Court in the 1940s and early 1950s, but as the Court's agenda moved from economic matters to individual liberties, his notion of deference began to strike some of his colleagues as judicial abdication.

Flag‐Salute Cases

The debate began in earnest during the early years of World War II with several religion cases. Jehovah's Witnesses brought a number of suits charging that various regulations, while not aimed specifically at them, nonetheless impinged on their free exercise of religion. The most famous of these were the flag‐salute cases, which showed how some members of the Court came to realize that rights cases called for a different judicial attitude than economic regulation.

In the first flag‐salute case, Minersville School District v. Gobitis (1940), Frankfurter spoke for an 8‐to‐1 majority in holding that a school could require children to salute the flag, since the necessity for inculcating patriotism was of sufficient importance to justify a relatively minor infringement on religious belief. The courts, he declared, should defer to legislative wisdom in these matters.

Only Justice Stone dissented, but as reports began filtering in of attacks on Witnesses, and as the Court heard other cases regarding Witness beliefs, several justices changed their minds, and in West Virginia State Board of Education v. Barnette (1943), the Court declared that the state could not impinge on the First Amendment by compelling the observance of rituals.

Japanese‐American Internment

The flag‐salute cases arose in the context of a nation at war, and both the Roosevelt administration and the Court seemed determined to avoid the infringements on civil liberties that had occurred during World War I. For the most part, the Court maintained its regard for civil liberties during the war; the one exception proved to be the worst blot on the Court's record in this century, the Japanese internment cases.

Following Pearl Harbor, anti‐Japanese fear on the west coast led the Roosevelt administration to order all persons of Japanese descent, whether Issei (Japanese nationals) or Nisei (American‐born citizens), relocated to internment camps. The military also imposed a curfew on Japanese‐Americans and set rules that made it impossible for them to stray on the west coast without violating the law.

Within the Court the justices disagreed seriously on the constitutionality of the internment, but they also realized the problem of invalidating an executive program that the commander in chief had said was vital to the war effort. Stone, whom Roosevelt had elevated to chief justice following Hughes's retirement in 1941, managed to talk the dissenters into going along with the program for the sake of the war, and the Court unanimously upheld the curfew in Hirabayashi v. United States (1943), although Justices Murphy, Douglas, and Rutledge entered concurring opinions that practically amounted to dissents.

In Korematsu v. United States (1944), the majority sustained the detention without addressing the central issue of whether singling out a particular race violated the Equal Protection Clause. Justice Black's opinion glossed over this question and focused on the president's war powers. This time Justices Murphy, Roberts, and Jackson entered vigorous dissents, stating bluntly that Japanese‐Americans had been singled out because of race. By then the tide of war had shifted, and in the fall the Court ordered the release of a Japanese‐American woman whose loyalty had been firmly established in Ex parte Endo (1944). (See Race and Racism.)

Ever since, there has been a general condemnation of the internment program as well as of the Court's condoning it. Perhaps it is too much to expect judges to remain free of the wartime passions that grip the rest of the nation, but there is a certain irony in comparing Stone's famous footnote four in the Carolene Products case, which called for a “more exacting judicial scrutiny” in cases touching on race, and his opinion in Hirabayashi, which condemned discrimination in general and then approved it in this case.

Stone, as it turned out, proved to be less than ideal as chief justice. He had earned a solid reputation as a good jurist and a liberal in the sixteen years he had been an associate justice, and at Frankfurter's suggestion Roosevelt had elevated the Republican Stone to the center chair as a gesture of wartime unity. Stone's misfortune was to preside over one of the most cantankerous courts in the nation's history. Justice Frankfurter's effort to gain intellectual dominance over his colleagues ran into the twin obstacles of Justices Hugo Black and William O. Douglas, who soon came to epitomize judicial activism and the expansion of individual liberties just as Frankfurter stood for judicial restraint and minimalism. Frank Murphy may have been one of the most liberal persons ever to sit on the bench, while the more conservative Owen Roberts and Robert Jackson tended to side with Frankfurter. By 1943 most of the decisions the Court handed down had multiple opinions.

The Vinson Court

Chief Justice Stone died of a cerebral hemorrhage in April 1946, and Fred Vinson took his place that fall, but before he did so, a truncated Court turned down the first challenge to malapportioned legislatures in a number of states (see Fair Representation). With Justice Jackson at the Nuremberg trials, Justice Frankfurter spoke for a 4‐to‐3 majority in Colegrove v. Green (1946), holding that apportionment constituted a political question and was therefore nonjusticiable. The case highlighted the differing philosophies on the bench, with Frankfurter warning the Court to avoid what he called the political thicket and to accept whatever inequities resulted from malapportionment as an inevitable cost of the federal system. Justice Black, joined by Justices Douglas and Murphy, anticipated the philosophy of the Warren Court era, and argued that such a blatant violation of equal protection could certainly be handled by the courts—and that, in fact, the judiciary had a responsibility to do so (see Reapportionment Cases).

Chief Justice Vinson only presided over the Court for seven years, yet during that time the Court underwent a significant transformation. Although the Court would not decide the school desegregation cases until 1954, the judicial battle for civil rights began to pick up steam in the postwar years. The Court also had to deal with the question of internal security and how such programs affected freedom of speech. The increasing willingness of minorities to litigate also led the Court to examine how far the doctrine of incorporation extended.

The Cold War

Although the Soviet Union had been an ally during World War II, the onset of the cold war in 1946 immediately revived all the old fears about communism (see Communism and Cold War). The exposure of spy rings, the communist takeover of eastern Europe and China, and the demand by rightist demagogues forced the Truman administration to implement a massive loyalty program (see Subversion). The attorney general issued a list of organizations suspected of communist sympathies, and at the same time Congress began a series of committee hearings that culminated in Senator Joseph McCarthy's investigations into alleged communism in the State Department and the army.

These programs all raised significant issues about freedom of speech and association. Although Justice Frankfurter personally detested McCarthyism and the whole atmosphere of the Red Scare, his philosophy of judicial restraint, which reached the height of its influence during these years, made the Court powerless to defend these basic First Amendment rights.

The government indicted twelve leaders of the Communist party of the United States under the 1940 Smith Act and charged them with conspiring to teach or advocate the forceful overthrow of the government and with belonging to an organization that advocated such an overthrow. The indictment thus departed from what had been accepted doctrine—that one could only be charged with those words or actions presenting a clear and present danger to society. A jury found the twelve guilty, and on appeal the high court upheld the convictions in Dennis v. United States (1951). Chief Justice Vinson wrote the majority opinion, which interpreted the clear and present danger test so as to allow the government to move against any doctrine it held potentially subversive. Only Black and Douglas dissented, pointing out that the convictions represented prosecutions for beliefs and thus threatened the entire notion of freedom of thought. Here again, one sees the Court caught up in the same hysteria as the general population, and utilizing the notion of judicial deference to avoid dealing with critical issues. Not until the mid‐1950s, after the waning of Senator McCarthy's power, did the Court finally begin to assert a positive view of freedom of speech.

The war against communism, this time the “police action” in Korea, also led to a major decision on separation of powers. In April 1952, to avert a strike of steelworkers, President Harry S. Truman invoked his powers as commander in chief and ordered the seizure of the nation's steel mills. The steel companies complained not that the government had no power to seize their mills, but that in this instance the wrong branch of government had acted—that only Congress, not the president, could authorize the seizure.

Although most commentators believed that a Court composed entirely of Roosevelt and Truman appointees would reject such a claim, in fact the Court invalidated the president's action by a 6‐to‐3 vote in Youngstown Sheet & Tube Co. v. Sawyer (1952). Justice Black's majority opinion flatly denied that the president had any authority, either by express provision of the Constitution or by the implied powers of commander in chief to act as he had done; he needed specific congressional authorization. The decision represented one of the few setbacks to growing executive authority that had begun in 1933 (see Presidential Emergency Powers).

Bill of Rights Cases

The Vinson Court also wrestled with the problems of civil liberties and the extent to which the Bill of Rights should apply to the states. Although Justice Cardozo had said that the entire First Amendment should be incorporated, the Court had avoided interpreting the religion clauses, and had decided the wartime Jehovah's Witness cases on speech rather than religion grounds. The Court explicitly extended the Establishment Clause to the states in *Everson v. Board of Education (1947). In a strange opinion, Justice Black depicted a high “wall of separation” that must divide church and state, and then he approved a New Jersey statute that allowed school districts to reimburse parents for transporting their children to parochial schools. Four justices dissented, not from Black's reasoning, but from the result, and elicited one of the great lines in the Court's literature, Justice Jackson's comment that “the case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, ‘whispering “I will ne'er consent”—consented’ ” (p. 19). Black eventually took an absolutist position, and his later votes opposed any involvement between church and state.

The Vinson Court, however, was still feeling its way in this corner of First Amendment jurisprudence, and it sent somewhat confusing signals in two cases involving released time, in which students received religious instruction during school hours. In Illinois ex rel. McCollum v. Board of Education (1948), the Court struck down a released‐time program in which ministers came into the schools and taught religious education classes during school hours. The uproar over this decision led the Court to retreat somewhat in Zorach v. Clauson (1952). There Justice Douglas, who also later took an absolutist position on the First Amendment, noted, “We are a religious people whose institutions presuppose a Supreme Being” (p. 313). He therefore upheld a program where the students left school during regular hours to receive religious instruction off school grounds.

The Vinson Court also began to explore how far the rights accorded to accused persons under the Fourth, Fifth, and Sixth Amendments applied to the states. The right to counsel had been one of the first rights nationalized in Powell v. Alabama (1932), but ten years later the Court had refused to extend that right to noncapital cases in Betts v. Brady (1942). Rather, a majority ruled that courts should determine on a case‐by‐case basis if lack of counsel deprived the accused of a fair trial. During the Vinson years, Justice Frankfurter managed to keep a majority in favor of the Betts rule, but in nearly every case the Court found special circumstances to warrant providing the defendant with a lawyer. Not until Gideon v. Wainwright (1963) did the Court finally extend the Sixth Amendment to noncapital cases.

Justice Frankfurter also prevailed in preventing the Court from applying the exclusionary rule to the states, although in Wolf v. Colorado (1949) he did apply the Fourth Amendment protections regarding search and seizure to the states. Federal courts since 1919 had refused to admit evidence seized in violation of the Fourth Amendment, a rule designed to make sure police did not violate constitutional guidelines. Dissenters in Wolf claimed that without such a prophylactic measure, state police would not be scrupulous regarding warrant and search requirements. This prophecy proved correct, and the Court finally extended the exclusionary rule to the states in Mapp v. Ohio (1961).

Civil Rights

Undoubtedly, the most important judicial struggle to occur after the war involved African‐Americans' fight for civil rights. The promise of equality in the Reconstruction amendments, especially the Equal Protection Clause, had long been blighted. In Plessy v. Ferguson (1896), the Court had approved racial segregation and the so‐called separate but equal doctrine. The Equal Protection Clause itself had fallen into disuse, derided by Holmes as the “last resort” in a constitutional argument.

The Court had taken its first hesitant step against racial segregation in Missouri ex rel. Gaines v. Canada (1938), where Chief Justice Hughes had startled the South by declaring that if the southern states wanted to keep segregated schools, then it had to make them equal as well (see segregation, de jure). That same year Justice Stone called for heightened scrutiny of race discrimination in his Carolene Products footnote. Justice Douglas breathed life back into the Equal Protection Clause in Skinner v. Oklahoma (1942). But undoubtedly it was the experience of black soldiers in the war, as well as President Truman's desegregation of the armed services, that gave the civil rights movement an unstoppable momentum.

In 1948 two cases reached the Court dealing with restrictive covenants, which denied blacks access to housing in white neighborhoods. In Shelley v. Kraemer, the Court made these covenants unenforceable in state courts, since enforcement of racial discrimination would constitute the type of state action forbidden by the Fourteenth Amendment. In a companion case, Hurd v. Hodge, Chief Justice Vinson applied the same rule to the District of Columbia. In Sipuel v. Board of Regents of the University of Oklahoma (1948), the Supreme Court required Oklahoma to provide Ada Sipuel, whom it had denied admission to the state law school, with an equal legal education. A few years later Oklahoma again tried to get around the rules; after admitting a black man to its graduate program in education, it made him sit in the hall outside the classroom and at separate tables in the library and dining hall. For a unanimous bench, Vinson held in *McLaurin v. Oklahoma State Regents (1950) that this treatment violated the Equal Protection Clause. Although the Court had not indicated any willingness to reverse Plessy, in McLaurin and other cases it had hinted at its growing unease with the separate‐but‐equal doctrine. In Sweatt v. Painter (1950), for example, the Court recognized that a black Texas law school did not compare in quality with the University of Texas, and for the first time implied that separate might, in fact, never be equal.

In 1952 the Court granted certiorari in five cases all addressed to the issue of racial segregation in public schools. Chief Justice Vinson died before the Court decided the cases, and it fell to his successor, Earl Warren, appointed by President Dwight Eisenhower in 1953, to hand down what is arguably the Court's most important decision of the twentieth century, Brown v. Board of Education (1954). Recent research has indicated that despite earlier descriptions of the Court as seriously divided over desegregation, in fact nearly all of the justices were prepared to overrule Plessy. The problem, which Warren solved by splitting the decision from the implementation, was how to go about the task.

Brown in many ways represents a logical culmination of much that had occurred in the previous three decades. The Court under Taft and Hughes had focused primarily on economic issues but had begun to explore the problems of individual liberty in a modern society. By the time Warren came to the Court, economic issues had taken a back seat to the problems of equality. The conservatives who decided Adkins v. Children's Hospital (1923) had derided the fact‐laden brief Felix Frankfurter had submitted in defense of a minimum‐wage law as irrelevant to judicial inquiry, but the Court that decided Brown paid attention to the evidence submitted by the National Association for the Advancement of Colored People that segregation inflicted emotional harm on black schoolchildren.

Critics of the Court in the 1920s and 1930s demanded that judges be restrained and that they defer to the legislatures in determining policy. Justice Frankfurter carried this philosophy onto the Court with him, but by 1953 it had given way to the demand that courts take the lead in determining the extent to which the Constitution protected individual liberties. The legal realists, who in the 1920s had argued that judges not only reflected the attitudes of society but should consciously take those attitudes into consideration in their decision making, might well have applauded the changes that had taken place during these years (see Judicial Activism).

Bibliography

• Leonard Baker, Back to Back: The Duel between FDR and the Supreme Court (1967).
• Michal R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (1977).
• Richard C. Cortner, The Supreme Court and the Second Bill of Rights (1981).
• Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (1976).
• Paul L. Murphy, The Constitution in Crisis Times, 1918–1969 (1972).
• William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).
• Melvin I. Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941–1953 (1997).
• G. Edward White, The American Judicial Tradition, rev. ed. (1988)

— Melvin I. Urofsky