Giving Up on the Supreme Court Too Soon

     The bakery workers of late 19^th and early 20^th century New York City toiled in airless, rat-infested tenement basements 13 and 14 hours a day, six or seven days a week. The state passed a law in 1895 that sought to clean up the bakeries and to protect the workers by limiting their workweek to 10 hours a day and 60 hours in all.

     When baker Joseph Lochner was fined $50 for violating the law, he challenged in court as a violation of his constitutional rights. The Supreme Court’s ruling for him in Lochner v. New York (1905) gave its name to an era when the court revered private property rights and enshrined a one-sided view of freedom of contract over the interests of workers, consumers, and the disadvantaged.

     The standard narrative of Supreme Court history treats the Lochner Era as something of a blip, an exception to the court’s historic role of expanding and protecting legal rights of workers, minorities, and criminal defendants. But, as legal journalist Ian Millhiser points out in his newly published book Injustices (Nation Books), that view of Supreme Court triumphalism overlooks a long list of discreditable decisions from the court through most of its history. (Disclosure: Millhiser and I are friendly colleagues.)

     The court protected slaveholders before the Civil War and industrialists after. It gutted the post-Civil War civil rights laws passed by Congress, killing the Reconstruction in utero and midwifing instead the Jim Crow era of racial segregation. It stunted the growth of unions and dramatically sided with railroad barons in violently putting down the Pullman strike in 1895. And it stood on the sidelines in the face of egregious violations of the Bill of Rights in state and local criminal justice systems.

     Thus, Millhiser’s subtitle: “The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.” In his summarizing J’accuse, Millhiser writes: “Few institutions have inflicted greater suffering on more Americans than the Supreme Court of the United States.”

     To his credit, Millhiser tells these stories story not primarily through legal briefs and court rulings but through the day-to-day lives of the people affected: the black victims of the Colfax, La., insurrection whose racist killers were set free by the Supreme Court in Cruikshank (1876); the child laborers left unprotected by the Supreme Court in Dagenhart (1918) and again in Adkins (1923); the teenaged girl involuntarily sterilized with the Supreme Court’s approval in Buck v. Bell (1927) — opinion written by no less a justice than Oliver Wendell Holmes Jr.

      The Lochner Era ended with the so-called Revolution of 1937 as one justice made a timely switch and President Franklin D. Roosevelt replaced aged conservatives with pro-New Deal justices over the span of a few years. FDR’s appointments helped usher in the mid-20^th century period of progressive judicial activism marked most dramatically by the 16-year tenure of Chief Justice Earl Warren.

      Millhiser opines that the Warren Court’s most important ruling, Brown v. Board of Education (1954), could easily have gone the other way. As one of his justices, FDR appointed the segregationist congressman James F. Byrnes Jr. Byrnes resigned after barely a year to help FDR with the domestic front in World War II; had he stayed, Millhiser suggests, Byrnes would have stood firm for “separate but equal.” Millhiser also notes the fortuitous death of the Kentucky-born chief justice Fred Vinson that brought Warren to the court in fall 1953 just in time to tip the balance and eventually to forge the unanimous ruling in Brown.

     For Millhiser, the Warren Court’s decade-and-a-half of progressive activism that followed is the blip, the historical exception. But the Warren Court legacy is truly a monumental achievement: revolutions in civil rights, reapportionment, criminal justice, and free speech. Each was incomplete, as Millhiser notes, but they are still largely intact. A president who accomplished as much in the White House would be ranked among the historical greats.

     Millhiser marked the formal publication of his book with an article on Think Progress Memo listing the five worst justices in history: Chief Justice Roger Taney, of Dred Scott notoriety; Chief Justice Melville Fuller and his contemporary Stephen Field, precursors of the Lochner Era; the anti-Semite James McReynolds; and the present-day Clarence Thomas. The late historian Nathan Miller engaged in the same exercise by listing the 10 worst presidents in his book Star-Spangled Men in 1999. Despite those stinkers, however, Miller did not give up on the presidency or its capacity for political good.

     In his indictment of the court, Millhiser gives it too little credit, even in the worst of times and even with the present-day misdirections of the Roberts Court. The Lochner Era brought the first stirrings of court-mandated racial justice and laid the groundwork for the Due Process Revolution that underlies privacy and reproductive rights. And the Roberts Court has issued rights-expanding rulings in such areas as Guantánamo, prisons, free speech, and gay rights even as it opened the door for corporate spending in political campaigns and closed the courthouse door to injured consumers, workers, and investors.

      In any event, advocates litigate with the court we have, not the one they might want. Millhiser rightly says the remedy for these ills is better Supreme Court justices but the only specific step he suggests toward that goal is a merit-based commission to vet Supreme Court nominees. Justice has never flowed like water; it comes from hard work. All the more reason not to give up too soon.