Civil Liberties (Update 1)

• Author: Gene R. Nichol
• Pages: 380-382

Page 380

The significant increase in the constitutional protection of CIVIL RIGHTS and civil liberties that has occurred since the late 1950s has brought dramatically renewed focus to the question of the appropriate scope of JUDICIAL POWER. Some argue that the federal judiciary, especially the Supreme Court, should play an active role in helping to shape public values?pushing a sometimes reluctant populace to make more meaningful the broad constitutional guarantees of liberty and equality. Others warn of the antidemocratic nature of JUDICIAL REVIEW. Constitutional decision making often invalidates the policy choices of popularly elected officials in favor of the rulings of life-tenured unelected judges. Schools are desegregated, prisons are ordered restructured, ABORTION regulations are voided, and SCHOOL PRAYERS are prohibited?regardless of how the majority of Americans feel about these decisions.

This countermajoritarian "difficulty" has led to consistent demands for a more passive judiciary. Only if violations of the Constitution are unambiguous, involving significant deprivations of clearly understood civil liberties, the argument goes, should the independent federal judiciary intervene. Otherwise, American democracy should be allowed a loose rein. The choices of the majority, even in most areas that implicate liberty and equality interests, should be considered determinative. And most fundamentally, they should be respected by courts.

How one comes out on this perennial debate, of course, has a major impact upon how one regards the performance of the judiciary in the post-WORLD WAR II era. The VINSON COURT (1946?1953) exercised its authority to invalidate governmental practices relatively rarely. As a result, for example, the criminal prosecution of communists under the Smith Act was upheld and the continued implementation of the SEPARATE BUT EQUAL DOCTRINE by the states went largely undisturbed by the Court.

The WARREN COURT (1954?1969), however, took a much different tack. Following BROWN V. BOARD OF EDUCATION (1954, 1955), the Court launched a virtual constitutional revolution. In fairly rapid succession the Court handed down decisions not only combating RACIAL DISCRIMINATION on a number of fronts but also requiring the REAPPORTIONMENT of legislatures, the application of the bulk of the provisions of the BILL OF RIGHTS against the states through the INCORPORATION DOCTRINE, giving more content to the FIRST AMENDMENT'S speech and press guarantees, protecting VOTING RIGHTS, prohibiting orchestrated public school prayer, assuring the poor some measure of ACCESS TO THE COURTS, and bolstering the demands of PROCEDURAL DUE PROCESS. Other institutions of government, both state and federal, were forced to comply with the Justices' aggressive, and often inspiring, vision of the equal dignity of black and white, rich and poor, high and low.

The almost breathless pace of change wrought by the Warren Court led to significant calls for a judicial counterrevolution. President RICHARD M. NIXON named jurists to the Court whom he believed would strictly construe the Constitution. In his view, this meant that the Court would interfere far less frequently with the political branches of government. In many ways, however, the BURGER COURT (1970?1986) failed to fit the bill of STRICT CONSTRUCTION. Some Warren-era doctrines?CRIMINAL PROCEDURE guarantees and legal protections for the poor, for example?were pared back. But the Supreme Court, if anything, became even more accustomed to enforcing its vision of constitutional mandate against other government actors. Important women's rights, including a right to choose to have an abortion, were recognized for the first time. Protections for FREEDOM OF SPEECH were expanded. More surprisingly, perhaps, the Burger...