Epilogue

“We Are All Slaves of the Law”

The pivotal Supreme Court cases described in this book remind us that our constitutional system places change and continuity in constant tension. And that is just what the framers of the Constitution intended. They wanted the Constitution to be difficult to change because its predictability is essential to its legitimacy. We believe in the Constitution when we know that it will be applied in a stable, routine way. But the framers, faced in Philadelphia with the need to compromise over issues such as slavery and the representation of the states in the new government, purposefully crafted a short, incomplete document. The original U.S. Constitution was one of the briefest in the history of the world, only 4,069 words exclusive of the signers’ names and subsequent amendments. Today, with twenty-seven amendments, it is only 7,606 words long.

The framers also knew that those areas of government they did not address when they wrote the Constitution would have to be considered as the document was adapted to changing circumstances. A static constitution was as sure to lose its base of popular support as one that was constantly undergoing change. The device they provided for adapting the Constitution was the amendment process outlined in Article 5. In order to change the Constitution, Congress has to pass a proposed amendment by a two thirds majority and then have it ratified by three-quarters of the states, a very demanding and time-consuming process. In the nation’s more than two-hundred-year history, only thirty-three such proposals, including the twenty-seven that were ultimately ratified, have been sent to the states. Of the twenty-seven amendments, ten, collectively called the Bill of Rights, were ratified in 1791. Today, members of Congress propose an average of two hundred amendments each term, with the vast majority dying in the same place they were born.

The framers did provide an even more dramatic means of changing the Constitution—a constitutional convention that would meet if two-thirds of the state legislatures applied to Congress to hold one. Efforts to hold a second convention have routinely failed, largely because of fears that a new convention might get out of control and go beyond the purpose for which it was originally called. The most serious attempt occurred on the eve of the Civil War. Outgoing President James Buchanan urged a convention to deal with the future of slavery, as a way of preventing the secession of the southern states, but incoming President Abraham Lincoln and the Congress rejected his plea.

Despite the difficulties associated with amending the Constitution by means of Article 5, the nation’s ruling document has been adapted, sometimes dramatically, to social circumstances the framers did not contemplate. The instrument for doing so has been the Supreme Court, making it, for better or worse, a kind of continuing constitutional convention.

The justices have made themselves indispensable to the American scheme of government by establishing three broad concepts. These are: judicial review (the right to review and, if necessary, set aside not only acts of Congress and the President, but also those of state governments, including state courts and legislatures); judicial independence (the concept that the Court is free of political entanglements and that its actions are controlled by principles of law not politics); and, perhaps the most important of all, judicial sovereignty (the idea that what the justices say about the Constitution is final and authoritative).

Because the justices have successfully established their right to decide conclusively the meaning of the Constitution and because their decisions almost always leave one party unhappy, critics of the Court have argued that it has become too powerful. They typically complain that the Court has been too activist, meaning that it has been willing to substitute its views for those of the elected branches of government. It would be far better, these critics argue, for the justices to adhere to the intentions of the framers of the Constitution. Others, however, insist that the Court cannot be restrained by what they describe as the dead hand of the past; in their view, the nation’s ruling document has to fit the times if it is to be legitimate.

As a matter of history, the Court has actually embraced a bit of both of these views, as its landmark decisions remind us. The justices are not free to exercise their power any way they wish; even though the Court’s power has grown, it remains constrained in what it can do. For example, in order to render a decision, a litigant has to bring them a dispute. They cannot simply issue opinions on their own without first hearing a case. Moreover, the justices must rely on others to enforce those decisions. As Alexander Hamilton wrote in The Federalist No. 78, the justices command neither the power of the sword nor of the purse. And the Court cannot perpetuate itself; instead, the President nominates its members, with the advice and consent of the Senate.

The justices are also beholden to Congress for most of their jurisdiction to hear cases. While the Constitution in Article 3 outlines the jurisdiction of the Court, it places in the hands of Congress considerable authority to specify the circumstances under which that power can be exercised. Article 3 of the Constitution provides that “The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress can limit or expand the jurisdiction of the Court; Congress can add or subtract justices.

Over two centuries the Court as an institution has changed, almost always with the blessing of Congress. The size of the Court has grown, from six to nine justices. The Court has had many homes, from its quarters in the old Senate chamber in the Capitol to the marble palace of today. As in the federal government as a whole, the work of the Court has grown to meet the demands of an expanding nation. In the first decade of the Court’s history the justices decided just one hundred cases; today the Court has as many as ten thousand cases brought to it annually. An equally important development has been the willingness of Congress to expand the certiorari jurisdiction of the Court, which has given the justices greater control over the cases they ultimately decide. Out of the thousands of cases it could potentially decide, the Court today usually issues written opinions in seventy to eighty. As its discretion to pick and choose among those cases has grown so, too, has its power and visibility.

Many of its pivotal decisions, such as Brown v. Board of Education (1954, 1955), reveal that the justices have understood that if they try to reach too far and too fast, they are likely to suffer a backlash. Indeed, that is exactly what happened in response to their decisions involving slavery in the territories, Scott v. Sandford (1858), and the New Deal. The latter produced President Franklin Roosevelt’s ill-fated court-packing scheme.

Although there are some who might wish that the Court would remain anchored in the past, its history has been one of adapting American constitutional law to changing social circumstances, often in subtle ways. Take for example the authority that the justices cite to make decisions. Although the Court is above all an institution of law that relies on legal precedents, its justices in the twentieth century turned increasingly to fields outside the law (sociology, psychology, statistics, and the social sciences generally) to support their opinions. The groundbreaking Brandeis brief in Muller v. Oregon (1908), which relied heavily on statistics about the impact of factory work on women, established a pattern of using nonlegal materials that was amplified in Brown and other cases.

The Court has changed its views on critical matters, as the cases in this volume so often remind us. And when the Court has changed its mind, it has produced some of the most memorable moments in the history of the nation. We might prefer a Supreme Court founded on the idea of original intent, that is, a Court that constantly refers to the wishes of the framers of the Constitution. But its most important decisions reveal that while the justices have kept an eye to precedent and the work of the Philadelphia convention, they have also been willing to gaze decisively into the future when confronted with new realities, such as abortion and affirmative action, that the framers did not envision.

The high court has been something of a magic mirror that reflects back to us the assumptions and values of earlier times. It decisions remind us how important it is that the Court has the power and opportunity to change its mind. In the Scott decision (1857), the justices approved the institution of slavery and issued the sobering declaration that “persons of African descent have no rights which the white man is bound to respect.” A century later, in Brown, the justices ended the practice of racial segregation in public schools and challenged America to live up to the pledge of “equal justice under law,” words that are carved above the entrance to the Supreme Court.

These historic cases also remind us that disputes in society about how to deal with controversial issues are repeatedly framed through constitutional arguments. Ours is truly a dynamic constitutional order. Alexis de Tocqueville, a French writer who traveled across early nineteenth-century America, wrote one of the great surveys of American life, Democracy in America (1835, 1840). He slyly observed that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” Congress has often found it useful to expand the powers of the Court so that the justices can address legally matters, such as slavery in the territories and apportionment of legislative districts, that would be difficult to compromise on politically.

Social change has often meant new challenges (and opportunities) for the justices. The Civil War left a bloody wound in America’s heart, but it also produced the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments, especially the Fourteenth, gave the justices new opportunities to reassess such critical issues as federalism, the rights of the accused, the scope of freedoms of speech and press, the relationship between church and state, and race relations. The justices also seized the wording in the due process clause of the Fourteenth Amendment to develop through substantive due process whole new areas of law involving privacy, women’s rights, and the related issues of birth control and abortion.

The Court is not today and historically never has been a runaway train. It is, at its heart, a legal institution, one shaped by the institutions and traditions of the law. The Court listens to lawyers who typically frame their arguments through the law’s language and processes, crafts its decision through that same language and those same processes, and sustains itself through the idea that it above all other institutions embodies the rule of law, meaning that no person is above the law.

The Supreme Court is a powerful institution and its justices have become an integral part of American government. The closely fought Presidential election of 2000 turned on a decision by the high court about who would become the nation’s chief executive. Although many commentators condemned the Court for tackling a political question, the American people as a whole embraced the Court’s decision, in part because they held the justices in such high regard and in part because they so distrusted the political process that might have otherwise resolved the election results. As Justice Robert H. Jackson once observed, the justices “are not final because we are infallible, but we are infallible only because we are final.”

The Court’s most significant decisions also affirm the pragmatism of the framers and of the justices who interpret the Constitution they created. The framers knew they were creating a legal institution with a human dimension. It makes a difference who sits on the Court. The nation’s most important legal body is, after all, composed of human beings who bring a variety of experiences and talents to the bench, although they are bound together by being trained in the law. The process by which Supreme Court justices are selected (appointment by the President with the advice and consent of the Senate) has always been political. For example, the selections of John Roberts and Samuel Alito, both made by George W. Bush, would be unthinkable had Al Gore been President.

Yet the justices have not been mere extensions of the Presidents who selected them. Tenure during good behavior and freedom from having their salaries reduced gives them a high degree of independence. We should not be surprised that they have often behaved accordingly. Former President Dwight Eisenhower, when asked what his biggest mistakes had been, reputedly replied: the appointments of Earl Warren and William J. Brennan Jr. Both justices proved far more liberal than either Eisenhower or his Republican Party would have liked. President Richard Nixon appointed Warren Burger in the hope that he would be a social conservative and a supporter of Presidential power. Burger ended up voting in favor of women having a right to an abortion in Roe v. Wade (1978) and ordering Nixon to turn over the Watergate tapes in United States v. Nixon (1974). And the list could go on. Scholars estimate that about half of the justices who have served have taken positions consistently at odds with the Presidents who appointed them.

The question of what qualities make for great or failed Supreme Court justices has stirred considerable debate. Some commentators insist that the intellectual ability to deal with the complex legal issues that come before the Court is critical. That means that a great justice must also be a great lawyer, but one of a special sort. A vision for what law can be rather than for what it is seems to be critical, especially in eras marked by powerful social change, such as the Civil War and the Great Depression. An old Yugoslav proverb holds that “If you want to know what a man is, place him in a position of authority.” The greatest of our justices have, in the end, been those who have grown in response to and have been shaped by the authority vested in them. Some of the greatest justices in the Court’s history, notably Oliver Wendell Holmes Jr. and John Marshall Harlan, were important as much for their dissents, which were later embraced by the majority, as for the majority opinions they wrote for the Court. Leadership and persuasiveness, the ability to encourage fellow justices to see in new ways and then to lead them there, have also been valuable talents. A justice has to be able to write not only clearly but persuasively and to argue in the close quarters of the conference in a way that can build and hold the votes necessary to forge a majority.

In order to be a great justice, it is also necessary to have spent an extended period of time on the Court. A justice may be a quick study, but in order to have a lasting impact he or she must persist for at least a decade. John Marshall, for example, was the Court’s greatest chief justice not only because he had extraordinary leadership skills but because he exercised those skills over thirty-four years of service (1801–1835). Learning to be a justice, whether for better or worse, takes time, but it is equally true that, because change in the law often comes gradually, endurance is important in shaping it.

These great cases also remind us that the justices mix pragmatism with nobility. The justices have not left an unalloyed legacy of support for equality, freedom, and fairness. During periods of national crisis the Court has frequently deferred to the executive branch to the detriment of individual liberty, as its decisions in Schenck v. United States (1919) and Abrams v. United States (1919) during World War I underscore. In the Japanese American internment cases of World War II, the Court tragically permitted the detention of thousands of Japanese American citizens in one of the worst moments in its history. Perhaps the best we can say is that the high court is, like every other feature of American government, imperfect, an institution that, like the American people, is fully capable of holding contradictory views simultaneously.

Yet, its imperfections notwithstanding, the Court has had the unique role of being America’s most visible manifestation of the rule of law. The Constitution has evolved into America’s civic religion, a collection of words whose noblest principles rally a nation. The justices who interpret those words are its high priests; their opinions shape the contours of American life For these efforts the justices and their Court have earned praise, provoked criticism, and generated controversy. There is no doubt that the Supreme Court’s principal role has been to remind us that the law generally and constitutional law in particular cannot be a game of roulette. We depend on the justices and the high court to exercise a limited degree of discretion in return for a high degree of certainty. As a matter of history, the justices have performed this task sufficiently well that there has been no need for a second constitutional convention. It is left to the justices to wrestle with applying the rule of law while acknowledging that the Constitution rests on a base of popular will that is articulated in its Preamble with the words “We the People.”

The Roman philosopher Cicero summed matters up nicely with the observation that “We are all slaves of the law that we may enjoy freedom.” The framers of the Constitution, schooled as they were in the classics, knew and appreciated this basic insight. One of the most important reasons that they created the Court—and one of the most important reasons it has played such a critical role in our history—is that it has maintained the concept of the rule of law as an essential, if sometimes not fully realized, element of our liberty.