Wednesday, June 2, 2010

"Transformative" Supreme Court Appointments

My current research project is on the Supreme Court in the 1930s. Obviously, one part of the story is the transformation of the Supreme Court after the crisis of 1936-37. There's general agreement that Roosevelt transformed the Supreme Court by his appointments starting with Hugo Black and including Felix Frankfurter, Stanley Reed, and William O. Douglas. But -- particularly in light of discussions of Elana Kagan's nomination -- it's important to understand exactly how that transformation occurred, or perhaps more precisely, what Roosevelt thought he was getting when he nominated those Justices.

The basic story is simple. Roosevelt was looking for justices who would uphold the New Deal's major initiatives or, more generally, who held expansive views of the scope of the national government's powers under Article I. He was relatively indifferent to his nominees' views on issues of civil rights and civil liberties, as his nominations of Reed and, later, James Byrnes show. (I plan another post about the Hughes Court's civil rights and civil liberties cases prior to 1937.) But, I think purely as a contingent matter -- that is, not intrinsically related to their views on national power -- some of Roosevelt's nominees happened to hold liberal views on those issues. Yet, some of the nominees, especially Frankfurter and, again later, Robert Jackson, defended their positions on the scope of national power not with an affirmative case for national power but with a negative case about the appropriate role of the Supreme Court in a democratic government. That negative case, they believed, had implications for the Court's role in civil liberties and civil rights cases.

In the years after 1937 the Court, now "controlled" by FDR's appointees, struggled to develop a coherent account of the Constitution and the Court's role in enforcing it that would simultaneously affirm broad national power and give the Justices some role to play in enforcing civil rights and civil liberties. Today we tend to think, or so I believe, that Harlan Fiske Stone solved the problem early on with Carolene Products' Footnote 4, but within the Court Footnote 4 was only one of the options on the table. Basically, or so I am likely to argue when my work is done, the Roosevelt Court floundered in its early years: The Justices knew pretty much where they wanted to come out, but had an extremely difficult time coming up with an account of their role that satisfied them when they reached the conclusions they did.

I mentioned Elena Kagan in this post because my sense -- based on no inside information, of course -- is that her selection reflects a strategic calculation by President Obama similar to FDR's. What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors, and is relatively indifferent to his nominees' views on other questions. Put pretty crudely, SG Kagan hasn't been vetted for her views on what we might call "Warren Court" (or "Brennan-Marshall") issues (other than the scope of national power) -- which may be why some on the liberal-left side of the spectrum are nervous about what she would do as a Justice dealing with those issues. (A minor point that I haven't seen made elsewhere: Even assuming all the somewhat critical things some have said about the way she structured her career, her first career choice was to decide who to clerk for on the Court of Appeals. Again, assuming that she wanted to get a Supreme Court clerkship, when she made her choice there were a number of "feeder" judges, some quite liberal, some less liberal, some conservative, and some extremely conservative. She chose to clerk for Abner Mikva, about as liberal a feeder judge one could have found when she made her choice. I for one (to use a locution favored by the Justice she clerked for) think that provides some indication of her views on Brennan-Marshall issues.)


Anonymous said...

Can you really infer her politics from her clerkship with Mikva? When I was on the clerkship market, we were told to accept the first offer we received, lest the judge become offended and take it out on our school. Do you think she really sat there with a bunch of offers and "picked" Mikva? I don't know anyone who has had that experience.

Having said that, the fact that Mikva "picked" her is some indication of her politics, although some judges like to have "yes" clerks and other like to have some ideological diversity to keep them honest.

Anonymous said...


I had the same experience re: guidance not to leave a judge hanging.

Which meant I did my homework before applying so that I knew (or at least and a good sense) as to how compatible I'd be with any particular judge.

I think her choice does say something, because she of all people would be smart enough not to apply with someone so ideologically her opposite that she would find herself in a job of constant conflict.

Just my $0.02.


Mary L. Dudziak said...

Mark, thanks for this interesting post. On your point that "within the [Hughes] Court Footnote 4 was only one of the options on the table": I'm sure you've seen the sources on this, but one support for this point is the history of Footnote 4 itself, leading to a footnote that has two different approaches to judicial review contained in it, but we tend only to notice the political process failure theory (paragraphs 2 & 3 of fn. 4). The original footnote was just one paragraph (what are now paras 2 & 3). Hughes responded to Stone's draft by saying "does the difference lie not in the test but in the nature of the right involved?" And Stone responded, in part, by including Hughes' idea as a new paragraph at the beginning of footnote 4: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution..." So within the footnote itself there are different touchstones: one the text, and the other the political process failure theory. So that the footnote seen by contemporary scholars as solving the problem of the Court's role in protecting individual rights itself is evidence of the way the Court was still grappling with the problem and had not settled on a solution.

Regarding the FDR/Obama comparison: I assume your argument is just that these two presidents are arguably similar in their approach to the Court's role. But did you have a broader argument in mind? Maybe the idea that in "crisis" times, or other times when the president has an ambitious legislative agenda, presidents tend to be especially attuned to whether Court appointments will uphold their programs?

If that's the case, I wonder which presidents fit this idea and which ones don't. E.g. LBJ became president at a moment of crisis (an assassination -- along w/ Vietnam, civil rights, etc.). He held out legislation as a means of addresses some of the crises he faced (not only civil rights, but also as a way of showing the world his leadership in the aftermath of JFK's assassination). But I don't think of LBJ's approach to judicial appointments as fitting your description of the FDR model.

What's New in our Beautitul World said...

I had the same experience re: guidance not to leave a judge hanging.