How American judges interpret the Bill of Rights.

• Author: Dorsen, Norman

I

American courts have considerable power to affect government by exercising the power to invalidate, and thus render inoperative, federal and state statutes or the executive acts of federal and state officials (including the President himself) which they consider to be in conflict with a provision of the United States Constitution. All federal and state judges have the authority in appropriate cases to wield this power of judicial review, but the stakes are highest in the United States Supreme Court.

Americans take the subject of judicial review very seriously. The recent Senate hearings into the confirmation of President Clinton's nominee to the Supreme Court, Judge Ruth Bader Ginsburg, were tranquil by comparison to those that preceded them. From 1987 to 1991 Robert Bork, Anthony Kennedy, David Souter, and Clarence Thomas each underwent exhaustive and exhausting public grilling on their philosophies of law, their philosophies of life, and indeed their lives themselves. All but Bork eventually were confirmed by the Senate, but Thomas barely made it, by a vote of 52-48. The reason for the intense hearings was, of course, the recognition that the stakes are enormous when each of the nine Supreme Court Justices represents one-fifth of the votes needed to determine the direction of the country on all sorts of basic matters.

Judicial review in the United States is not a paper tiger. To take some early examples, the Supreme Court in 1857 held that African-American slaves had no rights under the Constitution, and never could have such rights.(1) It thereby thwarted a congressional attempt to fashion a compromise on the slavery issue and avert a bloody Civil War. In the 1870's, following the war, the Supreme Court voided congressional efforts to legislate full citizenship for former slaves.(2)

In the early twentieth century the Supreme Court regularly struck down federal and state social legislation that provided for minimum wages, maximum hours, the protection of labor unions, and the outlawing of child labor.(3) In mid-century, the Court operated with a more liberal philosophy but no less vigorously. For example, from 1954 to 1973 it declared unconstitutional the American version of racial apartheid, organized prayer in state schools, and laws prohibiting or restricting abortion.(4) And it told President Harry Truman that he could not lawfully take over and run privately-owned steel mills when a labor dispute threatened the production of steel for the armed services during the Korean War.(5)

How does one justify, or even explain, the Supreme Court's pattern of decision in constitutional cases so as to explain and perhaps justify judicial review, probably the greatest contribution that the United States has made to political theory and civil liberty? In order to address this question, I shall begin by identifying six pairs of Supreme Court rulings, in each of which the later decision was a radical change of direction from the earlier one. I shall then discuss five key factors which I believe affect judges when they are interpreting the Constitution, especially the Bill of Rights. I shall conclude by venturing some explanations, based on these five factors, for the changes in direction in each of the pairs of decisions that I have identified.

Three of the six pairs concern equality issues under the constitutional provision that prohibits government from "denying to any person ... the equal protection of the laws." The other three deal with free expression under the constitutional provision that prohibits government from "abridging the freedom of speech or of the press."

Turning first to the three equality pairs, what explains the change from 1896, when the Supreme Court upheld the forced segregation of black people into "separate but equal" schools and other public accommodations,(6) to 1954, when in Brown v. Board of Education it declared "separate but equal" facilities to be unconstitutional? Second, what explains the change from earlier judicial decisions that permitted government discrimination on the basis of gender(7) to recent cases in which the Court has struck down almost all such inequalities?(8) And third, in light of the acknowledged constitutional protection for sexual privacy, what explains the Court's approval in 1986 of laws that criminalize consensual homosexual sodomy?(9)

As to the three "free expression" pairs, why did the Supreme Court uphold the convictions of Communist leaders in 1951 for conspiracy to advocate the overthrow of the government by force and violence but reverse the convictions of other top Communists in 1957 under the same charge?(10) Can one reconcile the Court's willingness to sustain the conviction of a man for burning his draft registration card in protest against the Vietnam war(11) with its more recent declaration that burning the American flag as a political protest is constitutionally protected expression?(12) Finally, why did the Court in 1952 permit Illinois to send a man to jail under a criminal libel law for defamation of Jews and blacks,(13) but twelve years later strike down a huge libel judgment against the New York Times for printing an advertisement which falsely alleged that an Alabama official harrassed and arrested civil rights workers without cause?(14)

There are scores of similar pairings, including cases from other areas of constitutional litigation such as criminal justice, religion and the state, the rights of private property, and the separation of powers among the branches of government. But the examples I have selected should suffice for present purposes. Accordingly, I turn now to five factors that largely determine how courts interpret the Bill of Rights.

II

The first factor is the degree to which individual judges are in fact committed to the principle of judicial review. This may seem strange in light of the fact that the Supreme Court asserted the reviewing power as long ago as 1803 and its authority is now thoroughly established.

But throughout American history there have been those who denied the validity of judicial review. Not two decades after Marbury a state court contended that "the foundation of every argument in favor of the right of the judiciary, is found, at last, to be an assumption of the whole ground in dispute."(15) As recently as 1938 a well-known scholar maintained, in rather overheated prose, that Marshall's reasoning in Marbury was "baseless," and that the arguments supporting the restriction of "the will of a democratic majority by the judgment of a few elderly gentlemen" (that is, the judges) were "precisely those which the adherents of Hitler and Mussolini use against the frailty of democratically representative or elective government."(16) More recently, a leading federal judge, Learned Hand, lent his voice to those who doubted the general grant of judicial review in the Constitution, although he conceded at the end that it was "essential to prevent the defeat" of the government established in 1789 for the Supreme Court to assume at least some of this power.(17)

The approach of Judge Hand and the other critics is consistent with a long tradition that cautions the Supreme Court not to exercise its prerogative whenever it "sees, or thinks that it sees, an invasion of the Constitution."(18) In this view a court can invalidate a statute only when those "who have the right to make laws have not merely made a mistake, but have made a very clear one--so clear that it is not open to rational question."(19) Judge Hand, in short, by grudgingly recognizing a right of judicial review, implicity cautioned judges to exercise the power with extreme reluctance.

This is not the occasion, nor is it necessary, to recount in detail the many reasons that judicial review has survived these assaults for almost two centuries. The arguments derive from the text of the Constitution and its contemporary history. They also stem from a perception of democratic theory which validates a role for a judicial body that acts both as umpire of our federal system and as protector of minorities and unpopular segments of society.

The key point is that the freedom with which a judge approaches the question whether to...