VIII: The Constitution and the Cultural Revolution

In the New Deal era, the American people made a commitment to federal regulation of the economy and to American leadership in world affairs. A relaxation of constitutional restraints on government power, particularly the deferential position of the Supreme Court, facilitated these changes. Under the general welfare and interstate commerce powers, Congress became an all-purpose government that largely relegated the states to administrative subdivisions. In both policymaking and quotidian operation of the government, Congress delegated vast powers to the president and the new bureaucracy. Washington was now the central arena for competing interest groups. While the United States retained an enterprising business class, a “new class” eclipsed it in the aftermath of the New Deal and World War Two. This class was composed of federal bureaucrats and lawyers, organized labor leaders, new media corporations, and educators. Most depended on government spending and were either unfamiliar with or hostile to the old business elite. They championed the continuation of New Deal liberalism, and were confronted by and ultimately absorbed many of the sensibilities of 1960s activism.

The most significant change in the second half of the twentieth century was the great cultural revolution that climaxed in the late 1960s. An expanding set of dissident and marginalized groups and individuals—blacks and other ethnic minorities, women, students, the elderly, disabled, criminals, pacifists, environmentalists, and homosexuals—regarded themselves as victims, or advocates of the victimized an abused. Their claims represented, at the least, a radical extension of the traditional American principles of liberty and equality and, in some cases, a revolt against deeply engrained religious, moral, and political norms. Constitutionally, this revolt challenged the legitimacy of much of American political culture, as the New Deal liberal regime became reviled as “the establishment.” The most remarkable feature of the era was the reassertion of judicial power, as the Supreme Court recovered from its Post-Court-packing deference and became a leader, and the most hotly contested institution, in the late twentieth century “culture wars.”

Cultural revolution and judicial power began with the movement for black civil rights. As previously described, the Court had established at least some limits on segregation and discrimination before World War I, and had articulated premises for the defense of non-property rights in general. Black Americans steadily gained influence and organized to end their relegation to second-class citizenship. In the 1910s and especially during the war, the “great migration” of blacks out of the rural South and into northern cities began. This fed the growth of a new black middle class, new organizations, and voting power. During the 1930s, blacks shifted their political allegiance from the Republican to the Democratic party, a process completed in the 1960s. Black participation in World War II, a war fought for democracy against Hitler’s ghastly racist regime, accelerated the egalitarian trend. President Roosevelt prohibited defense contractors from discriminating against black workers, a policy continued in many northern states by “fair employment practice” commissions. Liberal opinion was encapsulated in the monumental study by Swedish sociologist Gunnar Myrdal, An American Dilemma, which exposed the failure of Americans to live up to the “American Creed” of equal opportunity and meritocracy. The Cold War increased pressure on the United States, as the Soviet Union eagerly harped upon the hypocrisy of American racial oppression in its bid for leadership of the non-white developing world.

The Court struck several blows for racial equality during and after the war. It imposed a duty of “fair representation” on labor unions, though stopping short of a requirement that they admit blacks as members. It began to dismantle segregation in interstate transportation. Its most impressive decision struck at racially restrictive covenants in real estate. After the Court prohibited state mandated residential segregation (1917), homeowners employed covenants in title deeds wherein the purchaser agreed never to sell the property to non-whites. Since these appeared to be voluntary contracts, the Court upheld them in 1926. This underlined one of the most important limitations on the Fourteenth Amendment: it prohibited only discriminatory action by the states, not by private persons. But in 1948 the Court ruled that restrictive covenants could not be legally enforced, for a judicial order to abide by a discriminatory covenant constituted “state action.” The implications of this ruling, prohibiting any legal enforcement of private discrimination, were far reaching, but went unrealized until the 1960s.

The National Association for the Advancement of Colored People, the most important civil rights organization of the twentieth century, had methodically laid the groundwork for dismantling segregation in education. It began in public higher and professional education, where integration was far less controversial than in secondary schools. In 1938 the NAACP won its first major case, the Supreme Court holding that Missouri could not refuse to admit blacks to its state law school, since it had no separate law school for blacks. A decade later, the Court held that separate Texas and Oklahoma law schools were not substantially equal to the white institutions. In 1952 the Court agreed to hear a set of secondary public school segregation cases.

The Court heard two rounds of argument in Brown v. Board of Education and its companion cases. During the arguments, Chief Justice Fred Vinson died and was replaced by Earl Warren. Warren was a moderate Republican, having served as California attorney general and the party’s vice-presidential candidate in 1948. A contender for the 1952 presidential nomination, it was reputed that President Eisenhower promised to appoint him to the first open seat on the Supreme Court. Hardly known for doctrinaire egalitarianism (he had led the effort to inter Japanese-Americans during World War II, over the objections of FBI director J. Edgar Hoover), he was about to strike the most important judicial blow against discrimination in American history.

Warren faced several difficulties in devising an opinion. The Chief Justice wanted a unanimous opinion, for he believed that the court must speak with one voice in so controversial a decision. But the Court was composed of many strong and contentious personalities. These New Deal justices were still reluctant to engage in the kind of judicial lawmaking that they associated with their anti-New Deal predecessors. The Plessy precedent stood in the way, nor did going behind precedent to the legislative history of the Fourteenth Amendment provide much relief. Thus Warren put aside precedent and drew attention to the fact that education was more important in 1954 than it had been in 1896 or 1868. And whereas nineteenth century social science believed that segregation did not stigmatize or harm blacks, modern sociology and psychology proved that it did. Experiments conducted by psychologist Kenneth Clark, for example, which showed that black children preferred white dolls to black dolls, indicated that segregation “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Thus, Warren concluded, “In the field of public education, separate but equal has no place.”

Based on social psychology rather than law, Brown was perhaps the boldest application of “sociological jurisprudence” ever. It provoked an intense backlash in the South. Southern politicians called for “massive resistance” and revived theories of nullification and state interposition. The Court seemed to draw back from its ruling in 1955, when it issued orders to implement the Brown ruling. To reconfigure the thousands of schools in the South and border states would be a colossal task, and the prospect of centralized direction of this fundamental local institution was not popular. Thus the Court assigned the primary responsibility for desegregation to local school boards, and federal district courts were to see that racial segregation was dismantled “with all deliberate speed.” The ten years after the decision saw virtually no desegregation in southern schools.

Several other problems arose from the decision. States could not segregate because the Fourteenth Amendment required that no state deprive any person of the equal protection of the laws, but the Constitution did not impose an equal-protection rule on Congress, which segregated public schools in the District of Columbia. The Court struck down DC school segregation anyway, indicating that basis for the decision was really old-fashioned substantive due process. Lower federal courts interpreted Brown as prohibiting segregation in areas other than education, though the decision gave no basis for desegregation outside of public schools. Nevertheless, the Supreme Court upheld these lower court rulings.

Despite its unclear basis and lack of concrete results, the Brown decision laid the foundation for judicial leadership in American social reform. As the civil rights movement gained momentum and success, national elites saw the Court as having done something about the outstanding moral defect in America while the political branches did nothing. The Court was able to draw on this moral capital for decades. In 1957, when faced with the resistance of Arkansas governor Orval Faubus to an order to desegregate a high school in Little Rock, the Court made the most comprehensive statement of judicial supremacy. Striking down state resistance to a federal court order, the Court in Cooper v. Aaron claimed that “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”—that is, that the Court’s interpretation of the Constitution was equal to the Constitution itself. Thus, no political challenge to Court rulings, such as Abraham Lincoln proposed after Dred Scott, was legitimate. Only formal amendment of the Constitution could trump a Court decision.

The Warren Court retreated somewhat in the late 1950s, perhaps due to public reaction to its segregation and Cold War-civil liberties decisions. After the election of John F. Kennedy and the augmentation of its liberal wing (particularly after the death of Felix Frankfurter, the chief proponent of judicial restraint) the Court promoted a number of liberal reform causes.

In 1962 the Court ordered that state legislatures and congressional districts be reapportioned on the basis of a “one person, one vote” standard. Throughout American history, incumbent legislatures tarried to redraw electoral district lines to keep up with shifts of population, and state constitutions provided for upper houses based on township or county units rather than population. In the twentieth century, this custom strengthened rural areas at the expense of urban ones. Vermont’s upper house was based on town equality; the smallest town having equal representation with a town that had 1,000 times as many people. More common “variance ratios” were between 50 and 100 to 1. (In today’s US Senate, California has seventy times the population but the same number of senators as Wyoming. Since the Constitution provides that no state can be deprived of its equal suffrage in the Senate without its consent, this is nearly impossible to remedy.) Traditionally, the Court had remained aloof from controversies regarding the legitimacy of state governments, by the principle that these were “political questions”—nonjusticable matters to be worked out by the political branches. The Court now threw out the “political questions” doctrine. Though its holding “flies in the face of history,” as Justice Harlan put it, legislatures complied and the ruling enjoyed broad popular support, for most Americans had an intuitive sense that “one person, one vote” was fair. The decision came too late to help liberal politics, though, due to the demographic shift to relatively conservative suburbs.

The dam also broke on the incorporation of the Bill of Rights in the 1960s. The Court extended nearly all of the protections of the first eight amendments to criminal defendants in state cases. By itself this was relatively unexceptional for, like “one person, one vote,” the Bill of Rights seemed fundamentally fair to most Americans. Criminal reform also grew out of the civil rights movement, for the criminal justice system was often abused as a means of reinforcing white supremacy—southern states were the ones most often to have not yet adopted the new standards. The rapid increase of violent crime made the decisions more controversial. The impact of court-ordered changes in criminal procedure on the crime rate continues to be disputed, but the public had a sense that criminals were being set free by the application of standards like the exclusionary rule—the reversal of convictions based upon illegally seized evidence—or other legal technicalities. By the end of the decade, Warren Court decisions had provoked a strong “law-and-order” reaction. In the long run, the nearly complete incorporation of the Bill of Rights would involve the federal courts in a wide range of cases.

The criminal procedure cases also raised the issue of judicial lawmaking or activism. In applying the exclusionary rule to the states, for example, the Court held that all future convictions based on illegally seized evidence would be overturned; prisoners currently incarcerated obtained no relief. This appeared to be an essentially legislative act—establishing a prospective general rule, rather than deciding individual cases in retrospect. The Court’s detailed instructions on detention procedures (reading the accused his “Miranda rights”) similarly appeared legislative. The school desegregation cases evinced a similar non-judicial quality. While the Court failed to provide effective relief for black plaintiffs in 1954, it would come to administer local schools in the 1960s.

Intense controversy accompanied the Warren Court’s decisions on religion. For most of American history, even after the last state ended its established church, public life displayed an informal (or “de facto”) establishment along non-denominational but broadly Protestant lines. The Court incorporated the free exercise clause in 1938-40, vindicating the right of Jehovah’s Witnesses to proselytize. In 1947 it incorporated the establishment clause. But in this case, Everson v. Board of Education, the Court embraced Thomas Jefferson’s metaphor of a “wall of separation” between church and state while it upheld a state law that provided for transportation for Catholic school students, but not other private school students. Everson was aberrant; the trend would be toward “wall of separation” secularism rather than to denominational pluralism.

In 1962 the Court struck down New York’s mandated school prayer, though it was non-sectarian and not even Christian. The next year it prohibited Pennsylvania’s requirement that students read ten verses from the Bible each day. Though the leading school prayer cases came from the northeast, such public expressions of faith were vestigial there. As in other areas, the Warren Court’s secularization movement applied national elite cultural standards to the South. Many southern school districts ignored the rulings, and decades of litigation ensued, as almost any free exercise of religion that was not entirely private could be challenged as amounting to an establishment of religion.

The Court also imposed national standards on local majority police power in its decisions regarding privacy and expression. In 1965 the Court struck down a Connecticut law that prohibited the sale of contraceptives, even to married couples. (The statute, long in desuetude, appeared to reflect the political power of Connecticut Catholics. In fact it dated from 1879, when the state was still predominantly Protestant.) In this case the Court announced a constitutional “right to privacy.” Though no such provision appears in the Bill of Rights, Justice Douglas wrote that “specific guarantees [in the Bill of Rights] have penumbras, formed by emanations of these guarantees that help give them substance and life.” Other justices concurred in the result but on other grounds. Justices Black and Stewart dissented, claiming that the Court was engaged in old-fashioned substantive due process. Indeed, later cases concerning sexual liberty would shift its basis from the right to privacy to Fourteenth Amendment liberty.

The southern civil rights movement also led the Court to impose a new, stringent, national standard of libel on the states. An Alabama jury awarded $5 million to local law enforcement officers who were named in a New York Times advertisement for imposing a “wave of terror” against civil rights activists, due to several minor factual inaccuracies in the ad. The judgment amounted to a state effort to run national media out of the state. The Court unanimously overturned the award, holding that suits for libel in matters of public concern must prove “actual malice”—deliberate falsehood or a reckless disregard for truth. The decision gave relatively free rein to the media and virtually abolished libel for “public persons.” The Warren Court also began to do away with local prosecution of obscene and pornographic publications. Before incorporation, various communities were free to determine how far they wanted to extend freedom of expression. The Court attempted to devise a national standard, and had a difficult time doing so. In 1957 it said that something was obscene if, to “the average person, applying contemporary community standards, the theme of the material as a whole appeals to prurient interests.” Five years later the standard was “patent offensiveness and indecency.” Then it must be “utterly without redeeming social importance” by a national standard, or “utterly without redeeming social value.” Justice Stewart captured the problem when he said that he could not define the pornographic, “but I know it when I see it.” In the 1970s, local communities were permitted to prosecute “hard-core” pornography and to prohibit the exhibition of, and sale of pornography to, minors.

The Warren Court had restored the judiciary to center stage in American politics, and became the target of political reaction. While “impeach Earl Warren” became a popular billboard sign, there was little prospect of this option. Congress did defy the Court’s imposition of the exclusionary rule, but federal prosecutors ignored the statute and complied with the Court. Other legislation to limit the Court’s jurisdiction or amend the Constitution as a way to overturn its decisions in controversial cases failed. (Ironically, an amendment to undo the Court’s “one person, one vote” ruling was defeated by a Senate filibuster—a minority-rule tactic in the one legislative body where “one person, one vote” apportionment could not be imposed.) Indeed, in the mid-1960s Congress began to catch up to the Court on civil rights and to extend liberalism by legislation.

Intensified civil rights protests—fueled in part by frustration at the failure to realize school desegregation and provoking brutal southern resistance—led Congress to enact the comprehensive Civil Rights Act of 1964. Its principal feature was Title II, prohibiting segregation in places of public accommodation. Essentially the same as the 1875 Civil Rights Act, struck down by the Court in the 1883 Civil Rights Cases (ch. 5, p. 14), this was now accepted as an exercise of Congress’ power to regulate interstate commerce. The act also cut off federal funding for any school that segregated or discriminated on the basis of race; this provision finally ended southern massive resistance. The act also prohibited discrimination in private employment. The education and employment titles contained provisos that racial imbalance was not per se discriminatory, and prohibited racial preferences or quotas—which opposing congressmen presciently warned would result from the act. The employment tile also made discrimination on the basis of sex illegal—an amendment introduced by opponents either to kill the bill or to prevent the substitution of blacks for white women.

The next year, Congress enacted the Voting Rights Act, which established direct federal control of elections where devices like literacy tests were used and where less than half of the voting-age population was registered. The Twenty-Fourth Amendment, prohibiting poll taxes, took effect at the same time. The result was a vast increase in voting by blacks and whites in the South. The South became a two-party region and voting became racially polarized, as blacks became the most loyal bloc in the Democratic party and southern whites shifted to the Republicans by the end of the century.

Shortly after these legislative enactments, the Court began to take further steps, as the civil rights movement became more radical in demands for “Black Power.” The Court swept away the “state action” limit on civil rights law in 1968, holding that the Civil Rights Act of 1866 (enacted under the Thirteenth Amendment), which gave blacks the same right “to make and enforce contracts” as whites, provided a basis to sue in cases of private discrimination. The Court stepped into “affirmative action” by confirming lower court and federal bureaucrats’ interpretation of the new civil rights laws. Even after southern school districts stopped obstructing desegregation, relatively few black and white children attended the same schools. The federal courts and bureaucrats began to turn Brown from a prohibition of segregation into a duty to integrate. In the early 1970s they began to order busing to achieve racial balance, and applied it to “de facto” segregation in the North—racially unbalanced schools that did not result from any legal establishment of segregation. Similarly, Justice Department enforcement of the Voting Rights Act regarded access to the polls as insufficient, and began to act against “vote dilution”—electoral procedures that did not produce a significant number of minority elected officials. The new voting rights standard appeared to be one of racially proportionate election results. In employment, the Equal Employment Opportunity Commission, Justice Department, and Labor Department sought proportional representation in the work force. The Labor Department required particular percentages of minority employees from government contractors. The EEOC prohibited any employment test that resulted in low proportions of minority employees, unless the practice could be shown to be a “business necessity.” In the Griggs case (1971), the Court accepted this “disparate impact” standard—making suspect any practice, whether intentional or not, that had an adverse impact on the minority group. The courts also imposed quota hiring remedies and revised seniority systems to compensate for past discrimination, despite the provisions of the Civil Rights Act. “Civil rights,” a vision for the future based on principles of individual rights, color-blindness, and equality of opportunity, had evolved into “affirmative action,” a philosophy that suspected any departure from racial group equality as being result of past discrimination, and advocated color-conscious remedies to produce proportionate group outcomes.

The Congress that enacted landmark civil rights legislation also expanded the New Deal into what President Lyndon B. Johnson called the “Great Society.” The federal government began to provide medical care for the elderly and indigent, and subsidized secondary education for the first time. Anti-poverty programs grew and welfare began to be regarded as an entitlement, to be provided without work requirements, stint or stigma. Social Security, farm subsidies, and other elements of the New Deal welfare state continued to expand, along with new subsidies for the media, arts and humanities. Little noticed was the 1965 immigration act, which opened the United States to significant numbers of Asians and Latin Americans, and would produce tremendous demographic change over the next generation. But this flare of liberal reform burned out quickly. The nation became increasingly polarized over the Vietnam War and the social upheaval of ghetto riots, student protests and riots, and violent crime. A stance of opposition, beginning with black activists and spreading to other ethnic groups, feminists, students, and homosexuals, seeped into the national media and universities especially. The Democrats’ overwhelming majority in Congress was significantly trimmed in 1966. With the Democrats divided over the war, and with the populist segregationist George Wallace drawing votes from traditionally Democratic voters in the South and northern cities, Republican Richard Nixon was elected president in 1968.

Though liberals despised Nixon ever since his aggressive anti-Communist campaigns of the 1940s, and particularly after his exposure of Alger Hiss’ Soviet espionage, he was in many ways a quintessential New Deal liberal. Nixon accepted the economic intervention of the regulatory state and expanded it, particularly in environmental and health-and-safety realms. He took extraordinary measures, including wage and price controls, to combat the economic downturn and inflation of the early 1970s. He extended affirmative action and supported a proposal for a “negative income tax” for the working poor. Though he tactically widened the Vietnam conflict, he steadily withdrew American forces from Southeast Asia, ended the draft, and concluded a peace settlement in 1973. He adjusted American Cold War policy into “détente” or peaceful accommodation with the Soviet Union and even Communist China. Though he was to this extent a “modern Republican” in the mode of President Eisenhower, Nixon was less deferential to Congress and was determined to control the administrative state that the liberals had built.

Nixon’s first opportunity came in reshaping the Supreme Court, but the result was no more than to slow the liberal activism of the Warren Court. The judicial selection process had become highly politicized in the late 1960s. From 1870 to 1930 there were only two rejections of Supreme Court appointees, and very few recorded votes in the Senate. William Brennan was the only incumbent justice who had appeared before the Senate. In 1968, after Robert F. Kennedy’s assassination convinced him that Nixon would be elected, Warren contrived to arrange his resignation so that President Johnson would be able to name his successor. Johnson proposed to elevate his liberal political ally Abe Fortas to the chief justiceship. During the confirmation hearings, opposition to Warren Court activism, suspicion of Fortas’ political ties to the administration, and finally evidence of financial corruption, forced LBJ to withdraw the nomination and then compelled Fortas to resign altogether. Nixon was able to name Warren Burger as chief justice in 1969. He filled three other seats by 1971, after two rejections of southerners who were perceived as hostile to civil rights. Burger moved the Court to a more moderate political position.

The Burger Court blunted some of the more ambitious innovations of the Warren Court, refusing, for example, to regard as presumptively unconstitutional any law that had a disparate impact on the poor. In criminal procedure cases, it continued the essentially legislative function of the Warren Court, but with more regard for law enforcement. In 1972 the Court came close to holding capital punishment to be unconstitutional, but popular reaction led states to devise procedures for its application that successfully met the Court’s more stringent standards. On matters of religious freedom and free speech, each term brought new cases for judicial fine-tuning, but clear standards continued to elude the Court. Even when in substance the Court moved in a conservative direction, it retained the activist style of its predecessor.

In many areas the Burger court extended liberal principles. It extended busing for school integration, though in 1974 it drew the line at integration of city and suburban districts. Due to the suburbanization of America in general and “white flight” from minority districts in particular, this placed serious practical limits on school integration. But the federal judiciary continued to micromanage school systems under earlier integration decrees. The Court vigorously expanded affirmative action in employment. In 1979 it shielded “voluntary quota” plans by private employers against “reverse discrimination” challenges. It also approved of racial preferences in admissions to college, on the theory that a “diverse student body” was a compelling state interest. An act of Congress that set aside a portion of federal construction spending for minority-owned firms was also approved. The Court extended the principle of sex equality, although it did not go so far as to make sex a “suspect classification” equivalent to race. The failure to ratify the Equal Rights Amendment in the 1980s seemed to confirm this sense on the part of the American people. The Court adopted what was called “intermediate scrutiny” in sex discrimination cases. Sex-based legislation would not be regarded as presumptively valid, as when economic rights were concerned, nor would it be subject to strict scrutiny and required to be narrowly tailored to meet a compelling state interest (as when race was at issue). This also made it easier for states to use sex-based affirmative action for women.

The most controversial Burger Court decision was Roe v. Wade (1973). Building on the Warren Court principle of a “right to privacy,” the Court struck down all state abortion laws. States like New York and California had already begun to liberalize their abortion laws, as the general twentieth century relaxation of Victorian sexual mores intensified in the “sexual revolution” of the 60s. In the first trimester of pregnancy, the states could not regulate abortion at all. In the second, they could only do so for the sake of maternal health. Only in the third trimester could the state legislate for the sake of the unborn child, but must permit abortion if continued pregnancy adversely affected maternal life or health. Since maternal health included psychological well-being, the decision amounted to abortion on demand. Along with affirmative action, abortion was the most contested issue of the next three decades and became the paramount issue in political battles over control of the judiciary. Notably, three of the four Nixon appointees concurred in the decision, written by Nixon appointee Harry Blackmun.

Thus Nixon affected the Supreme Court very little. His attempt to concentrate administrative power in the presidency led ultimately to the Watergate scandal and his resignation in 1974. A series of executive acts to control legislation and administration preceded the Watergate burglary. Nixon expanded the White House staff and tried to impose politically loyal appointees on the “permanent government” of the federal bureaucracy. He refused to spend money appropriated by Congress for programs that he disliked, engaging in a new kind of “impoundment” of Treasury funds. He claimed to be able to choose not to enforce acts of Congress and proceeded to dismantle programs that he was preparing to abolish. His conduct of the Vietnam War and foreign policy also provoked public and congressional reaction.

Nixon was convinced the he embodied the “silent majority” of Americans and was being opposed by a left-wing ideological coalition in Congress, the bureaucracy, the media, and universities. His support derived from popular reaction to the 60s cultural revolution--the new liberalism, it was called, of “acid, amnesty (for draft evaders), and abortion.” He became obsessed with secrecy as political opponents leaked government secrets to the press—the publication of the “Pentagon Papers,” an inside history of the Vietnam War, for example, by Defense Department official Daniel Ellsberg. Shadowy figures in Nixon’s personal staff burglarized the office of Ellsberg’s psychiatrist, and broke into the headquarters of the Democratic party at the Watergate Hotel in1972.

Shortly after the burglary, Nixon won one of the greatest electoral victories in American history. Trial of the Watergate burglars revealed White House involvement, and the Senate began an investigation, conducted under special prosecutor Archibald Cox. Cox found a number of abuses of executive power, most important being Nixon’s collusion in the cover-up of the Watergate investigations, ultimately revealed in tape recordings that Nixon maintained of White House conversations. Nixon repeatedly tried to thwart the investigation, making claims of “executive privilege” and ultimately firing Cox. The Supreme Court finally ordered Nixon to turn over the incriminating tapes and, when the House Judiciary Committee reported articles of impeachment, Nixon resigned in August, 1974.

The Nixon presidency awakened liberals to the potential danger of the powerful executive that progressivism and liberalism had created. Nixon appealed successfully to the American people, over the head of the liberal strongholds in Congress and the bureaucracy. In addition to his threat to a liberal elite that disliked him intensely, Nixon’s near-paranoia and willingness to engage in criminal activity to maintain his position did him in. In the late 1970s, Congress attempted to impose clearer limits on executive power. Most important of these was the War Powers Act, which permitted the president to begin a war but required that he notify Congress and permitted Congress to end the conflict if it did not approve. Nixon vetoed the measure, and subsequent presidents have regarded it as unconstitutional, albeit they usually complied with it. Congress also tried to control the process by which “emergencies” were declared as justification for executive action. It also made permanent the special prosecutor office, now called the Independent Counsel, to facilitate investigations of the executive branch. Though this office appeared to violate the separation-of-powers principle, providing a cut-rate substitute for impeachment, the Supreme Court upheld it in 1988.

Yet, there seemed to be no substitute for vigorous executive power. Congress seemed to admit as much by its delegation of powers to the executive branch and its use of the “legislative veto”—allowing the president or bureaucrats to make policy with only the vaguest of standards, but reserving the power to reverse their decisions--an apparent inversion of constitutional roles. (The Supreme Court overturned the legislative veto in 1983.) In 1980, Ronald Reagan was elected president, and did much to restore the prestige of the American presidency—despite the fact that he was much more ideologically conservative than Nixon had been. Reagan’s election returned American politics to the conflict between Congress and President that characterized the Nixon years. The national government was closely divided as it had not been since the late nineteenth century. While the executive and legislative branches were in different party hands for only ten of the 36 years from 1933-69 (and with little partisan conflict between Eisenhower and Congress), they were in the same party’s hands for only six of the next 32 years. These divisions reflected primarily the ideological or cultural discord of the American population. Ethno-cultural-religious identity remained the chief determinant of political behavior, and this was exacerbated by the cultural revolution of the 1960s. Economic and foreign policy issues also played a role. American voters appeared to prefer Republican presidents for national security reasons during the later Cold War. Democrats seemed to have a lock on Congress due to the country’s desire to maintain various government entitlements, but Republicans benefited from their reluctance to pay higher taxes for them. The party system had also weakened considerably in the twentieth century, and parties lost much of their power to organize and stabilize government. The result in the 1980s was increased defense spending, continued domestic spending, tax cuts, and large budget deficits.

Congress and the President continued to spar over the direction of the administrative state and of foreign policy. Congress was particularly successful at maintaining its control over the federal budget and spending. When the Reagan administration attempted to maneuver the bureaucracy toward its goals, congressional committees used their oversight power to monitor and check them. Democrats used the independent counsel as another rein on executive power. The most important of these was the investigation into the Iran-Contra controversy. As part of a plan to redeem American hostages, the Reagan administration sold weapons to the Iranian government, a regime that supported international terrorism, and used the proceeds to fund rebels (contras) against the communist government in Nicaragua. Congress had attempted to prohibit spending to aid the contras, and a lengthy investigation revealed many improper acts by administration officials and neglect, if not outright illegality, in the White House. For a time it appeared that the president might be liable to impeachment. Ultimately, several administration officials were convicted for attempting to cover up the affair, but all of the convictions were overturned on appeal. Reagan served out his second term and his Vice-President, George H. W. Bush, continued Republican control of the executive branch. Domestically, Reagan was able to accomplish almost nothing apart from tax reduction, as the commitment of the American people to the New Deal political economy seemed confirmed. He was able to restore a vigorous foreign policy, hastening the collapse of the Soviet Union in 1989-91.

In the 1990s, the two principal elements driving national partisan conflict—the budget deficit and the Cold War—disappeared. Bill Clinton was elected president in 1992, in large part due to third-party candidate H. Ross Perot, who made the deficit his principal issue. But the deep divisions in the American electorate resurfaced when, after President Clinton attempted to extend liberal principles, in particular nationalization of medical care, voters gave the Republicans control of both houses of Congress for the first time in forty years, and only the third time in 64 years. With significant new spending blocked by the Congress and tax cuts forbidden by the president, compounded by post-Cold War defense cuts and a burst of technology-driven prosperity, the deficit was eliminated and large surpluses produced by the end of the decade. Although President Clinton used an array of executive tactics—executive orders, interim appointments, FBI investigations, and pardons—in his skirmishes with Congress, he ended up being impeached after an independent counsel investigation of his financial affairs revealed his sexual involvement with a 21-year old White House intern. The House of Representatives charged Clinton with perjury and obstruction of justice in his attempt to cover up the ménage. The Senate acquitted the president of the charges, and the independent counsel statute was allowed to expire in 2001.

The election of 2000, between Democrat Al Gore and Republican George W. Bush, provided staggering confirmation of the polarized nature of the American electorate. Each candidate got 48% of the popular vote, and the decision in the electoral college came down to a few hundred votes in Florida; the results were not settled until December. There was a bitter constitutional crisis within the state, as the 4-3 majority of the Florida supreme court ordered recounts to aid Gore, while the governor (Bush’s brother), secretary of state, and legislature leaned toward the Republicans. The US Supreme Court, also closely divided, finally overruled the Florida court and Bush carried the election. The new US Senate was divided 50-50. A Republican vice-president gave that party control of the body, but only for several weeks, after which a liberal Republican Vermont senator switched parties and gave the Democrats control.

With the electoral branches deadlocked, the Supreme Court emerged as the predominant constitutional institution at century’s end. Republican efforts in the 1980s to reshape the Supreme Court produced intense congressional opposition. In 1981 Reagan appointed Sandra Day O’Connor, the first woman to sit on the Court. She won unanimous Senate confirmation and maintained the moderate record of her predecessor, Potter Stewart. In 1986 Chief Justice Warren Burger retired, and Reagan proposed to elevate Associate Justice William Rehnquist, Nixon’s one conservative appointee. The move provoked intense partisan opposition but the president prevailed. Curiously, Reagan’s nomination of the profoundly conservative Antonin Scalia for the associate seat opened by Rehnquist’s elevation drew no resistance. After the Republicans lost control of the Senate in the 1986 elections, Democrats were able to prevent the confirmation of Robert Bork, an appeals court justice and academic critic of judicial activism, to the Court. Massachusetts Senator Ted Kennedy kicked off the opposition campaign by saying,

Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy.

Kennedy's philippic indicated the degree to which liberals depended on the courts to enact their policies. The unprecedented bitterness of the attack added the verb “to bork”—to threaten or undertake a relentless campaign of ideological and character assassination—to the American political lexicon. It intensified the debate between advocates of liberal judicial activism and conservative judicial restraint, which traced its origins to the Warren Court.

Bork’s place was taken by Anthony Kennedy, who joined Justice O’Connor in the center of the Court. In the aftermath of the Bork debacle, President Bush nominated David Souter to replace liberal icon William Brennan. Souter had no academic or judicial “paper trail,” and liberals suspected that he was a “stealth candidate” who would come out as a conservative after confirmation. In fact Souter joined the liberal bloc, to the chagrin of conservatives. Bush’s 1991 nomination of Clarence Thomas to replace Thurgood Marshall provoked another ugly confirmation fight, based on accusations by a former subordinate that Thomas had “sexually harassed” her. Thomas was confirmed by the Democratic Senate, and produced a Supreme Court that was evenly divided among liberals, moderates, and conservatives.

The results of Reagan and Bush’s effort to reorient the Supreme Court were limited and short-lived. On the two most controversial issues before the Court, affirmative action and abortion, a conservative shift was evident in 1989. The Court attempted to arrest the drift toward proportional representation in employment by raising the standards by which a Griggs “disparate impact” claim could be made— essentially shifting the burden of proof from employer (accused) to employee (accuser). At the same time, it expanded the range of employment practices that were open to disparate impact claims. This decision, along with others that made technical alterations in employment discrimination cases, were reversed by Congress in the Civil Rights Act of 1991.

The Court upheld a series of restrictions on abortion in a Missouri case that did not explicitly overturn Roe v. Wade but indicated that its precedential force was eroding. But in 1992, in Planned Parenthood v. Casey, the Court issued a resounding endorsement of the “central holding” of Roe, though it conceded that what was being protected was not a “right to privacy” but a “liberty” interest under the Fourteenth Amendment. As the joint opinion by Justices Kennedy, Souter, and O’Connor put it, “At the heart of liberty is the right to define one’s own concept of existence, of the universe, and of the mystery of human life.” That Casey reinforced the abortion-on-demand principle of Roe was confirmed when the Court struck down state laws prohibiting intact dilation and extraction (or “partial-birth”) abortions. On the other hand, the Court did not extend the “mystery of human life” principle to assisted suicide, though it did indicate that a future decision might do so.

In addition to this remarkable substantive libertarian claim in Casey, the majority indicated that, even if Roe had been wrongly decided, it must be upheld to maintain the power of the Court. The Court could not be seen as retreating in the face of popular political opposition. “The American people’s belief in themselves as . . . a people who aspire to live according to the rule of law is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.” Even more than Cooper v. Aaron, this was a bold statement of judicial supremacy.

Cases in the 1990s, particularly after President Clinton strengthened the liberal wing of the Court with appointments in 1993-94, indicated that the Court was the procedural and substantive heir of the Warren Court. In 1990 the Court upheld a state law that denied unemployment benefits to employees who were discharged for taking peyote, an illegal drug that was part of Native American religious ritual. Congress responded with the Religious Freedom Restoration Act, enacted under its power to “enforce, by appropriate legislation, the provisions of” the Fourteenth Amendment. The statute ordered that any state law that “substantially burdened” a religious practice required the state to show a compelling interest—the “strict scrutiny” test. In 1997 the Court struck down the act, saying that Congress could not define the substance of rights under the Fourteenth Amendment, but could only provide remedies for judicially-defined rights under it.

The Court added its weight to the growing cause of homosexual rights. After narrowly upholding a Georgia anti-sodomy statute in 1986, the Court struck down an amendment in the Colorado constitution that prohibited any municipality from making sexual orientation a “protected class” under its civil rights laws. The Court held that the amendment had no rational basis, and was based only on animus against homosexuals. In 2003 the Court overruled its Georgia decision and struck down a Texas anti-sodomy law. Homosexuals, the majority held, “are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” The decision was based not on the fact that the law applied only to homosexual sodomy, but because sexual behavior was protected by the Casey definition of liberty. Justice Scalia, echoing Justice Holmes a century earlier, said in dissent, “It is clear… that the Court has taken sides in the culture war.”

The Court extended its women’s rights jurisprudence when it struck down the Virginia Military Institute’s male-only policy. Justice Ginsburg essentially ratified the Equal Rights Amendment, this decision making any sex-based discrimination subject to strict scrutiny. She made it clear that, as in race cases, strict scrutiny left room for preferential treatment for females to compensate for past discrimination—thus female-only schools were acceptable. And, after twenty-five years, the Court reaffirmed the constitutionality of racial preferences in higher education admissions. It struck down a University of Michigan undergraduate program that used a point-system for admissions and gave a significant numerical bonus to minority applicants, but upheld a law school system that made race a variable “plus” factor.

The Burger-Rehnquist Courts did make some halting steps toward restoring the conservative principles of property rights and federalism. Antitrust jurisprudence, for example, was less dogmatically anti-big business than under the Warren Court. The Court was open to claims of those harmed by the costs of economic regulation, and was receptive to the idea that regulation could amount to a “taking of private property for public use,” which would require compensation under the Fifth Amendment. In 1976 the Court overturned a 1968 precedent and held that the Tenth Amendment prevented the application of the Fair Labor Standards to state employees. A decade later, the Court reversed this decision. Justice Blackmun, no states-rights advocate, announced that the Court would no longer police the border between federal and state power, because the structure of the Constitution (state representation in the Senate, especially) ensured that the states could defend themselves. In light of the evisceration of federalism since the New Deal, this was indeed a fanciful argument. Thus in 1992 the Court appeared to reverse itself yet again and overturned a congressional attempt to induce the states to comply with a federal nuclear waste disposal plan. Similarly, the Court made its first efforts since the New Deal to limit Congress’ power under the interstate commerce clause. Laws prohibiting possession of a firearm in proximity to a school, and making domestic violence a federal crime, were overturned as too remote from commercial regulation. But liberal alarm that these decisions portended a “revolution in federalism” was probably exaggerated.

The greater significance of these “conservative” decisions in the 1980-90s was their assumption of liberal premises of judicial review. Even the conservative justices maintained an unprecedented standard of judicial power. Thus, criticism of “government by judiciary” or an “imperial judiciary” had even greater relevance than during the progressive era. Courts and lawyers exercised greater power than at any point in American history, and partisan conflict to control the judicial branch intensified. In the Geroge W. Bush administration, Senate Democrats went to the point of blocking and filibustering the president’s appointments to the federal appellate courts, and the press exposed efforts of liberal interest groups to get Democratic senators to hold up appointments in order to influence the outcome of particular cases. There was unprecedented acrimony among judges in closely divided circuits, and spending on elections to state courts reached new heights. State appellate courts also embraced the judicial activism of the Warren Court, as several state supreme courts ordered equal funding for public schools or homosexual marriage. At the grassroots level, there was an explosion of private litigation, as ordinary civil suits took on public policy implications. Negligence, medical malpractice, and product liability suits became vehicles for redistributing wealth and regulating industries like tobacco. In the course of doing so, lawyers gained income and political power. The American Trial Lawyers Association became an influential political lobby, and tort reform became a significant issue, as complaints about a runaway, irresponsible legal system, the “death of common sense” in enormous damage judgments for trivial cases, and the “rule of lawyers” grew. It remains to be seen how far the courts would attempt to exercise power in regard to the post-September 11 quasi-war on terrorism.

At the most fundamental level, constitutional developments since the New Deal raises the question of whether the Untied States was still a constitutional regime. The influence of legal realism, with its denial of any distinction between law and politics, necessarily rejects the central tenet of constitutional government, that politics is limited by law. To some degree, the constitution always reflected rather than shaped or limited politics, and to some degree constitutional principles had served as masks or pretexts for particular interests. It might be that an unprecedently politicized judiciary simply reflected an unprecedentedly polarized populace. Both sides in the culture war spoke as if the Constitution had not completely lost its configurative power, suggesting that the constitutional history of the United States was not at an end. Who would hazard a guess as to whether this was really just whistling past the graveyard?

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• Herman Belz, Equality Transformed: A Quarter-Century of Affirmative Action (1990).
• Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1969).
• Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
• Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).
• William H. Chafe, The Unfinished Journey: America Since World War II (2003).
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• Laura Kalman, The Strange Career of Legal Liberalism (1996).
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• Dean Kotlowski, Nixon’s Civil Rights: Politics, Principle, and Policy (2001).
• Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (1975).
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• Leonard Levy, Original Intent and the Framers’ Constitution (1988).
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• Russell Nieli, ed., Racial Preference and Racial Justice: The New Affirmative Action Controversy (1991).
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• Abagail M. Thernstrom, Whose Votes Count? Affirmative action and Minority Voting Rights (1987).
• Mark V. Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925-50 (1983).
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• Raymond Wolters, Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights (1996).
• Raymond Wolters, The Burden of Brown: Thirty Years of School Desegregation (1984).