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Expanding Civil Rights

by Jeffrey Rosen

From the Civil War until the New Deal era, the Court was more concerned with economic rights than with civil rights and civil liberties, largely because of its decision in the late 19th century not to force the states to respect the Bill of Rights. As a result, controversies involving voting rights, criminal procedure, and religion were almost exclusively contested in state courts and legislatures before World War II. After the Court began upholding the New Deal in 1937, however, that began to change. In United States v. Carolene Products Co. (1938), the Court suggested that it would in the future uphold most economic regulation, but would be more skeptical of laws that discriminated against minorities, like African Americans, or that violated the Bill of Rights. And over the course of the 1950s and '60s, the Court began, in a piecemeal fashion, to strike down state laws that violated various guarantees in the Bill of Rights. This slow process of "incorporation" of the Bill of Rights against the states through the Fourteenth Amendment led to many of the most controversial decisions of the postwar era.

The battle to incorporate the Bill of Rights against the states was led by Justice Hugo Black, a former senator from Alabama, whose Supreme Court nomination by Franklin Roosevelt became mired in controversy after his confirmation, when the newspapers discovered that he had been a member of the Ku Klux Klan. Despite (or perhaps because of) this illiberal beginning, Black became one of the most passionate and effective civil libertarians of his time: he displayed a messianic belief that the states and the federal government should have to abide by every word in the Constitution and Bill of Rights -- nothing more and nothing less. Black's leading opponent in this crusade was Justice Felix Frankfurter, who insisted that judges should be able to pick and choose among principles fundamental to constitutional liberty. Although Frankfurter, a former Harvard law professor, condescendingly dismissed Black's claims that the framers of the Fourteenth Amendment had intended to incorporate the Bill of Rights against the states, the Court eventually came to incorporate most of it.

Black's most important victories involved the First Amendment guarantees of free speech and religion, which he revered with the fervor of a constitutional fundamentalist. (The First Amendment states that "Congress shall make no law" abridging free speech, and Black always took this command literally, insisting that no law meant "NO LAW.") He got off to a shaky start in First Amendment cases, joining Justice Frankfurter's decision for the Court in 1940 to uphold the right of public schools to expel students who refused to salute the American flag (Minersville School District v. Gobitis). But Black soon decided he had made a mistake and, three years later, helped persuade a majority of the Court to overrule Frankfurter's opinion and strike down mandatory flag salutes (West Virginia Board of Education v. Barnette). From that moment, Black was fierce in his defense of the rights of religious conscience and free speech. His most important First Amendment decision came in Engel v. Vitale (1962), where he wrote an opinion for the Court striking down state-sponsored prayers in schools -- one of the most controversial decisions of the Warren era.

Black was similarly successful in leading the Court to embrace his vision of free speech absolutism. In dissenting opinions with Justice William O. Douglas, he wrote inspiring defenses of the free speech rights of suspected Communists during the McCarthy era in the 1950s. But by the 1960s, when the American public was more in the mood to protect speech critical of the government, majorities of the Court followed suit. In the 1964 case New York Times Co. v. Sullivan, the Court unanimously reversed a libel verdict against THE NEW YORK TIMES obtained by an Alabama police commissioner who objected to an ad placed by civil rights protesters. Public debate, Justice William Brennan held for the unanimous Court, should be "uninhibited, robust, and wide-open" and therefore public officials could not sue for libel unless the offending statement was made with reckless disregard for the truth. Similarly, in the so-called "Pentagon Papers" case (New York Times Co. v. United States [1971]), the Court rejected efforts by the Nixon administration to prevent the TIMES and THE WASHINGTON POST from publishing a secret account of events leading up to the Vietnam War.

Black's most satisfying victories of the 1960s were in cases involving basic guarantees of criminal procedure. In one of the most inspiring, Black wrote the opinion for the Court in Gideon v. Wainwright (1963), which held that states were obligated to provide court-appointed lawyers to all defendants in felony cases. Black joined the controversial 1966 decision Miranda v. Arizona, which required police officers to inform criminal suspects of their right to remain silent and to talk to an attorney before answering questions -- now known as the "Miranda rights"; he also joined Mapp v. Ohio, which held that illegally seized evidence had to be excluded from state trials.

Although the Warren Court was criticized for its judicial activism in cases involving individual rights, most of its decisions were popular with national majorities. Even Griswold v. Connecticut, a 1965 decision striking down a Connecticut law that prevented married couples from using contraceptives, was applauded by the country as a whole. But the Court provoked more controversy in Roe v. Wade (1973), when it extended the right to privacy to protect a woman's right to choose abortion. Despite the political firestorm provoked, which included efforts by opponents to encourage the appointment of justices who would overturn it, the Court reaffirmed the core of Roe when it returned to the issue in the 1992 case Planned Parenthood v. Casey.

The main opinion in Casey was written by three Republican appointees: David Souter, Anthony Kennedy, and Sandra Day O'Connor. The first woman appointed to the Court, O'Connor proved particularly effective in staking out a middle ground in many of the most explosive culture war issues of the 1980s and 1990s -- upholding some but not all affirmative action policies, and some abortion restrictions and religious displays, but not others. Along with Justice Ruth Bader Ginsburg, the second woman appointed to the Court, O'Connor was a champion of women's equality, striking down gender restrictions in public universities as well as attempts to strike jurors on the basis of their gender. Some critics objected that O'Connor behaved liked the Arizona state legislator she once had been, expressing the views of the moderate majority of the country more precisely at times than Congress itself. But under O'Connor's guidance and that of Chief Justice William Rehnquist, the Supreme Court generally maintained public confidence in the 1990s and began the new century with approval ratings similar to that of the president and far higher than that of Congress. The branch of government that Hamilton had described as the least dangerous ended the 20th century as arguably the most self-confident.