THE WARREN COURT AND AMERICAN POLITICS. By Lucas A. (Scot) Powe, Jr. (1) Harvard University Press. 2000. Pp. 566. $36.95.
Scot Powe has written a marvelous book--every page challenging, provocative, stimulating, and just a pleasure to read. Its great strength is that it works from bedrock--the Court's opinions, the approximately 1750 the Warren Court handed down over sixteen years. But this is far more than a tour of the Court's leading cases or `best hits.' (3) "My job," Powe writes, "is neither to cheer nor boo; it is to understand and explain ... not whether the[se] changes [the Warren Court] wrought were good or bad, but how they came to be, how far they reached, and how they eventually encountered limits." (p. xv) He has two related goals:
The first is to help revive a valuable tradition of discussing the Supreme Court in the context of American politics. The second seeks to replace stereotypes with information by synthesizing the numerous books and articles on the Supreme thesizing the numerous books and articles on the Supreme Court, its decisions, and its justices during Warren's tenure.... The approach I have taken has rarely been seen in over a quarter century. (pp. xi, xiv) It is the method of Princeton's successive McCormick Professors of Jurisprudence--Edward S. Corwin, Alpheus T. Mason and Walter F. Murphy--of Harvard's Robert G. McCloskey and, although Powe does not mention it, also in so many ways of Professor Felix Frankfurter--an eminently cultivated, historically-based tradition of scholarship that is nearly moribund today. Serving as an inspiration to Powe were the work of McCloskey and Murphy, especially the former's The American Supreme Court (4) and the latter's Elements of Judicial Strategy. "This is what scholarship is all about," Powe recalls feeling when he read them three decades ago. (p. xvi) This book, like the best of those he emulated, will last. Not the least of those reasons is Powe's refreshing, if occasionally sardonic, prose. (Who says a book can't reflect its author?)
Powe has an enviable knack of shifting smoothly between the Court and the political environment in which it works. This is a history of an institution--a mix of narrative history and doctrinal analysis with biographical snippets interspersed, all well-conceived, sensitive to the interplay of myriad cross-currents and, considering the mass of material available which Powe has deftly synthesized, blessedly concise. More has likely been written about the Warren Court than about any other "Court"; the volume happily shows no sign of abating. For some people there can never be too much of a good thing. "The history of the Victorian Age will never be written: we know too much about it," wrote Lytton Strachey. (5) Powe has put the lie to this about the Warren Court. He includes everything of importance down to mid-level details, but no more. I may have a quibble here and a question there over Powe's interpretations, but to an extent this is, as it always has been and likely will always be, a matter of reading tea leaves. Choices in emphasis and interpretation are inherent in writing about the Court, and Powe's choices throughout are eminently reasonable. All in all, it is difficult to escape the conclusion that this is far and away the best book on the Supreme Court during one of the most turbulent eras in its history.
Doctrinal lines are rarely tidy. Neither can be the recounting of doctrine or the portrayal of the people who created it. The evolution of doctrine is only one part of a book like Powe's. But even such expert doctrinal explication will get one only so far in understanding the Warren Court, or indeed any court. Smooth history is incomplete history. Too much is happening at too many different levels for it to be otherwise. The narrator must, like the events he is relating, peek down winding paths of personality while taking into account twisting turns of doctrine created in a political atmosphere that ultimately controls. He must consider the Court's organizational "methods and practices," as Brandeis told Frankfurter, (6) who changed this into "business," (7) and also the styles and techniques of individual justices. It is a difficult, decidedly non-linear task and one that Powe splendidly achieves.
DREAMS AND REALITY
They were heady times when Scot Powe first read his intellectual forbears:
Those were the days my friends, We'd thought they'd never end We'd sing and dance for-ever and a day We'd live the life we choose, We'd fight and never lose. For we were young and sure to have our way. Those were the days, oh yes, those were the days. Then the busy years when rushing by us. We lost our starry notions on the way. For in our hearts the dreams are still the same. (8) "The Court has only a few big issues to decide," Justice William J. Brennan, Jr., said typically optimistically in early 1968. "The Bill of Rights will be pretty well solidified." (9)
How different it was ten years earlier. In 1958, after two terms on the Court, Brennan was "comfortable in his relationships with the other justices, but he was feeling his way on his views. He was a little uncertain about them." (10) (Later, he admitted that it took him five years to feel confident about them.) (12) Only the year before, he had written Roth v. United States. (12) It was an impressive work of craftsmanship by a freshman justice. In the words of one study Brennan "fashioned a rationale for the suppression of `obscenity' that also accorded freedom to ideas about sex" (13) despite, as Powe notes, being "hopelessly confused about obscenity." (p. 117)
Roth provided an early example of Brennan's approach: "He always acknowledged the legitimacy of the government's interest; therefore, unlike Hugo L. Black and William O. Douglas, he never took the government head on," Powe writes. "But having recognized the legitimacy of what the government wanted to do, Brennan then would shift to conclude that government had not done it appropriately in the case at bar." (14) (p. 117) On the other end of the scale was Justice John Marshall Harlan's "normal First Amendment stance": "Interests must be balanced with a heavy hand placed on the state's side." (p. 219) "Lawyer-like reasoning" (15) (p. 95) could support either Brennan's or Harlan's result.
Widely varying from this traditional methodology was Black's and Douglas's approach to the First Amendment. The fact that they almost always reached the same outcome obscured differing perspectives: Black's came from a deep immersion in history against an unchanging view of human nature and human needs; Douglas viewed personal fulfillment as central to the human condition. The Bill of Rights, Edmond Cahn wrote--his title, "The Firstness of the First Amendment," summarizing his argument as well as that of both justices--"is directed toward the values that lie beyond ... as a people's charter of edification." (16) The ethereal and the heavenly are not easily susceptible of analysis. (17) They do not readily lend themselves to teaching, dissection and explication in the way Brennan's and Harlan's opinions do. (18) If I am correct in this, it could be one reason for what I perceive as Powe's slight unease with Black's (before 1965 largely) and Douglas's methods but, emphatically, not their (and especially Douglas's) results. Brennan's resolution--"[s]trict scrutiny, compelling interests, the chilling effect, and the need for breathing space constituted the vocabulary of unconstitutionality in Brennan's jurisprudence," as Powe writes (p. 303)-seems to be the one he endorses. (p. 303)
Part of Brennan's doctrinal arsenal originated with Felix Frankfurter, who soon dropped his share of it. In December 1958 he suffered a heart attack and his personality changed. It was more than a rigidity in conference. "I cannot find something amusing at Conference without being suspect," he told Brennan. "It is sad but it's true...." (19) For several months at least, his conversation had "less frolic and more form" and deliberation. (20) "Afterwards," recalled one of his clerks, "he didn't look like himself at all." (21) Soon, Frankfurter "started to mull over who would write his biography. It was to him a matter of great concern and interest." (22)
If Frankfurter now more than ever accepted the zeitgeist as a major source of decision, his comrade in restraintist arms, Harlan, lived somewhat in fear of the poltergeist. (23) "Harlan lacks fiber," claimed Grenville Clark, the founder of his old law firm, who thought this had also been the case in his law practice. (24) He was a practitioner of the jurisprudence of the steady hand. Harlan's "main concern, his lodestar," observed Norman Dorsen, who clerked for him, "was to keep things on an `even keel.' He used that phrase many times.... The thing that people from Wall Street, from that world, care about most is national security. That's at the core of their senses. They don't want to rock the boat." (25) Financial markets and corporate clients such as Harlan represented abhor uncertainty. Jurisprudentially, this translated into a deep respect for tradition and precedent. As Harlan wrote in his Gideon v. Wainwright, concurrence, "I agree that Betts v. Brady should be overruled, but consider it entitled to a more respectful burial than has been accorded...." (26)
But as the McCarthyite witch hunt slowly lessened and other First Amendment issues came to the fore, as Harlan's eyesight increasingly deteriorated during the 1960s, and with Frankfurter, who, as Harlan's biographer noted, "closely monitored the tenor of Harlan's opinions," (27) no longer on the Court, what slowly came through to Harlan was an increasing appreciation of the ambit of the First Amendment. I do not wish to overstate this but it seems to me that something changed his thinking in this area during the decade. His perspective was obviously far from that of, say, Hugo Black, his distant cousin whom even in his...