Beware: Judges With a Vision

In 1940, a small group of children, bullied by intolerant adults, sought the protection of the United States Supreme Court. The nation's highest court spat in their faces. The results were so violent and tragic that the Court reversed itself three years later, trying to call a halt to the injustice it had spawned.

This story--the story of Minersville School District v. Gobitis and West Virginia State Board of Education v. Barnette--still teaches lessons today about the quality of justice, the character of judges, and the role of courts in spurring, or retarding, social change.

The issue was simple but explosive: Could school authorities require all children to recite the Pledge of Allegiance and salute the flag, even if their religious beliefs forbade it? The children at risk were Jehovah's Witnesses; the head of their faith had declared that saluting the flag was idolatry, a violation of the Second Commandment's injunction not to worship "graven images." Thousands of Witnesses in Germany had been persecuted for refusing the Hitler salute, he said. American Witnesses should follow their example.

The Nazi parallel was disquieting. At the time, the prescribed form of taking the pledge, called the Bellamy salute, was a stiff-armed gesture that looked much like the fascist one. When fifth-grader Billy Gobitas and his sister Lillian (the federal courts, never overly concerned with individuals, spelled their name wrong) refused the salute and pledge, they were expelled from school.

Lower federal courts found the case an easy one. Compelling religious objectors to salute a symbol violated the First Amendment's guarantee of "the free exercise" of religion. But when the case hit the Supreme Court, it ran headlong into a judge with a vision: Felix Frankfurter.

Frankfurter, a New Deal liberal, was also an immigrant with an almost mystical love of his adopted country--and an understandable fear of what was happening in Europe. America, not yet in the war, must come together to face the Nazi threat. His emotional plea for unity convinced eight of the justices that the misgivings of a few religious zealots must not obstruct national security. "National unity is the basis of national security," he wrote. "The preciousness of the family relation, the authority and independence which give dignity to parenthood, indeed the enjoyment of all freedom, presuppose the kind of ordered society which is summarized by our flag. A society which is dedicated to the preservation of these ultimate values of civilization may in self--protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties." To allow any child to stand aloof "might cast doubts in the minds of the other children."

Billy and Lillian lost--the expulsions stood--but there were many other losers that day at the Court. War hysteria was sweeping the country. Jehovah's Witnesses, who refused to fight for any nation, were already under siege around the country. After Gobitis, persecution mounted. It was, according to one Mississippi legislative proposal, "Open Season on Jehovah's Witnesses." School districts coast to coast adopted the forced pledge and salute. Witnesses--whose faith requires them to preach the Word to non-Witnesses--were accosted by mobs demanding they salute on the spot; those who refused were arrested, beaten, forced to drink castor oil, tarred and feathered, or marched out of town. "They're traitors--the Supreme Court says so," one Southern sheriff, watching a mob, told a Northern reporter. As Shawn Francis Peters documents in his book Judging Jehovah's Witnesses, a mob in Nebraska dragged Witness Albert Walkenhorst from his home and cut out one of his testicles.

Rarely has a decision gone so drastically wrong--and rarely, if ever, has the Court repented so quickly. By 1943, the accession of two new justices--and the switch of three of the Gobitis majority--gave new Justice Robert Jackson a majority to reverse Gobitis. In West Virginia State Board of Education v. Barnette, he wrote for a majority that struck down a West Virginia statute that had incorporated in its preamble the words of Frankfurter's Gobitis opinion. (Unmoved, Frankfurter bitterly dissented.) Jackson's opinion included these now-iconic words:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Persecution of the Witnesses subsided. This wasn't solely because of the Court's switch; by 1943, the fear of Nazi spies had died down. Still, there can be no question that the demise of Gobitis removed a powerful validation for jacks-in-office who wanted Witnesses out of their towns and mobs that wanted them dead.

Jackson's ringing affirmation of free thought has been quoted countless times since, helping deflate the pretensions of would-be inquisitors in areas from religion to politics to culture. Few who cite his words probably reflect that they represent the Court's apology for its own embarrassing mistake.

We can draw a few tentative conclusions from this sorry episode. First, beware a judge with a vision. Felix Frankfurter saw America in all its glory, the refuge of immigrants, arsenal of democracy, hope of the world. He wanted--oh, how desperately!--his beloved country to unite against Hitler. He tried to hurry that unity along, with awful consequences. Second, the impact of Gobitis was disastrous because Frankfurter's opinion made a bad situation worse. Third, the Court's most influential cases often arise out of attempts to clean up messes it has made itself.

Consider these famous decisions: Brown v. Board of Education, the Court's shining 20th-century moment, reversed its racially contemptuous 1896 decision, Plessy v. Ferguson. Katzenbach v. McClung and Heart of Atlanta Motel v. United States, upholding the Civil Rights Act of 1964, were partial atonement for the grotesque Civil Rights Cases, an 1883 opinion striking down the progressive Civil Rights Act of 1875. United States v. Darby Lumber in 1941 restored Congress's authority to ban child labor and other oppressive employer practices; the Court had gutted that authority in Hammer v. Dagenhart 20 years earlier. In 1969, Brandenburg v. Ohio, the cornerstone of modern free-speech law, capped a half-century struggle to reverse Justice Oliver Wendell Holmes's restrictive opinion in Schenck v. United States. In 2003, Lawrence v. Texas, voiding state laws against consensual gay sex, reversed the truculent opinion in Bowers v. Hardwick 17 years earlier, which had brushed aside the same claim as "facetious."

In each of these cases, the Court removed itself and its authority from blocking social change emanating from elsewhere. In the great sweep of American history, obstructing social change has been, more often than not, the high court's chosen task. Although the Warren Court was an exception, the chief historical role of the federal courts has been to say no to democratically enacted social reform.

The issue of whether courts "produce" social change has been a hot topic among lawyers and political scientists for at least 20 years. The most prominent skeptic is University of Chicago professor Gerald N. Rosenberg, whose 1991 book, The Hollow Hope: Can Courts Bring About Social Change?, concluded that "U.S. Courts can almost never be effective producers of significant social reform." Rosenberg is right, but his thesis is a straw man. Of course, courts can't conjure social change out of the air, like magicians with top hats. Courts don't organize movements or conduct mass education campaigns. Those are the province of ordinary people.

Courts can, however, succeed depressingly often in freezing the status quo and paralyzing legislatures, sometimes for decades. After the Civil Rights Cases and Plessy, the ideal of an integrated society was crushed for more than 50 years. Hammer v. Dagenhart (1918) thwarted a national movement to end child labor. Only after Darby, two decades later, was child labor banished from mines and factories. (If you doubt that it would have persisted otherwise, consider that the Fair Labor Standards Act of 1938, upheld in Darby, exempts agricultural work from its child-labor provisions. Last year, Human Rights Watch reported that "hundreds of thousands of children under age 18 are working in agriculture in the United States.")

Rosenberg is hardly alone in noting that Brown did not produce school desegregation--Southern apartheid broke down because the civil-rights movement exposed it and Congress outlawed it. But without Brown, would those victories have been possible, or would they have been delayed another 50 years? Can anyone believe that Congress would have broken the Southern filibuster and outlawed segregation if the Court had reaffirmed it in 1954?

We can, of course, study cases where the Court tried to substitute for a genuine popular movement. Brown was not one; black Americans had carried the idea of integration forward for nearly a century by the time the Court concurred. By contrast, in 1973, the Court decided Roe v. Wade, which leapfrogged ahead of public opinion to "settle" the issue of abortion, setting forth a detailed framework for its regulation in virtually all cases. Abortion-reform movements were stirring, and succeeding, in some states in 1973, but the issue had not been widely aired or made a focus of mass concern. Certainly there was nothing like the movement against school segregation or child labor. The country was feeling its way, and the Court stepped in like an officious parent to "settle" an issue not ripe for settlement.

The aftermath of Roe we know; one of the wellsprings of the early pro-life movement was a deep anger at the Court's presumption in trying to finesse public debate. Pro-lifers like to compare Roe to Dred Scott. It's an absurd comparison in substance, but the two cases share one similarity. In both, the Court imagined it could lay down rules that would not only focus but also end an intense national controversy. This kind of power simply does not inhere in courts.

In 1992, America's leading feminist jurist, Ruth Bader Ginsburg, then a judge of the D.C. Circuit, agreed that the Court should have struck down the Texas law, which made any abortion, except to save the pregnant woman's life, a felony. But, she lamented, the Court had gone on to set detailed rules in an attempt to short-circuit the process of social change. "A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day ... might have served to reduce rather than to fuel controversy," she wrote.

We can never know whether she was right any more than we can know what would have happened had the Court reaffirmed Plessy. But Roe, as decided, was a failure; beyond that, it was the brainchild of a justice with an agenda, Harry Blackmun. In 1973, Blackmun was no liberal social engineer--he was still a Nixon conservative. He had, however, worked for a decade as general counsel to the Mayo Clinic, and his agenda was to tell society to leave doctors alone.

That problem--the social-engineering judge with an agenda--brings us to the current state of the federal courts. Today's federal bench, particularly the Supreme Court, is well stocked with visionaries who wish to engineer a new country. That new country--a libertarian, corporate-dominated "night watchman state"--isn't one most of us would want to live in.

Forty years of systematic court-packing have produced one of the most aggressively conservative Courts in history. Since its coup d'etat in Bush v. Gore, there has at all times been a bloc of justices who see their role as the kind of officious parent on display in Roe. The hard-right bloc's social engineering is on display in Heller v. District of Columbia (2008) and McDonald v. City of Chicago (2010), which invented a new personal right to handgun possession. No less a conservative figure than Judge J. Harvie Wilkinson of the Fourth Circuit (one of George W. Bush's finalists for chief justice) has written that "in a number of important ways, the Roe and Heller Courts are guilty of the same sins." Judge Richard Posner of the Seventh Circuit, also no bleeding heart, wrote that Heller "is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology."

Expanding gun rights is but one part of the agenda the Roberts Court is now eagerly pursuing. This Court has a vision, of an America in which corporations get their due deference as what Justice Scalia calls "the principal agents of the modern free economy." The vision of corporate dominance in politics is on display in Citizens United (2010) and Arizona Freedom Club's Free Enterprise PAC v. Bennett (2011), cases shredding even modest campaign--finance regulation. In the Court's America, both shareholders and employees injured by corporate management must take their lumps. State and local governments mustn't be tied down with a lot of burdensome accountability to citizens--in Connick v. Thompson (2011), the majority brushed aside a tort claim by a man who spent 14 years on death row because prosecutors hid and destroyed evidence that proved his innocence.

The Roberts Court envisions a nation where government and corporate power trump equality and individual rights, and the courts fold their hands while the dirty work is done.

Conservatives would respond to the above with an accusation of hypocrisy. Progressives, they argue, were happy enough with the Warren Court's "visionary" jurisprudence; turnabout is fair play. This image of the Warren Court, though, misreads the historical record. The two dominant influences on the Warren Court, Chief Justice Earl Warren and his intellectual strategist, William Brennan, weren't visionaries of any sort. Both were moderate Republicans, light-years removed from liberal ideologues like the marginal William O. Douglas. The Court's enduring decisions actually have much less to do with setting out what America should look like than with attending to some core functions of courts. Its most important decisions, in fact, had the effect not of forcing judge-designed change but of making it easier for the political process to reflect the genuine wishes of society. Cases like Reynolds v. Sims (1964), which established "one person, one vote" as the rule for American politics, and Harper v. Virginia Board of Elections (1966), which invalidated the poll tax, opened the system up to ordinary people rather than closing it to conform to judicial ideas.

In a second set of cases, the Court took seriously the job of managing its own branch, making sure that courts and police treated defendants fairly. Opinions like Miranda v. Arizona (1966) represent the core function of courts, not an activist overreach.

Third, the Court stepped in to stop gross violations of the Constitution--racial segregation in schools, anti-miscegenation laws, state statutes that banned criticism of government, official actions aimed at silencing the press, mandatory government prayers, and religious qualifications for office. There was nothing new in the idea that these measures were unconstitutional; what was new was a Court that was willing to say so.

What sort of judges should progressives hope for? I am not sure I yearn for a progressive who will sound Scalia-style political bugle calls from the bench. We'd do well to find judges who will focus on the third type of Warren Court case and say that gross and open violations of the Constitution have to stop.

I am haunted by an exchange last fall during oral argument in Brown v. Plata. The dialogue was between Chief Justice John Roberts and Donald Specter, the lawyer for a group of inmates in the California state correctional system. For 20 years, these inmates had been asking the federal courts to correct horrendous abuses in the prison mental-health system. By 2011, no one disagreed that the current system--disturbed inmates locked in small steel cages or languishing for days in their own waste--violates the Eighth Amendment's prohibition of cruel and unusual punishment. For two decades, state officials had promised reform, federal courts had deferred action, and conditions grew worse. Then the court below played its final card, ordering the system to release inmates according to a plan that experts say will produce no increase in violent crime.

Chief Justice Roberts, though, was worried about the long-term hardships that observing the Eighth Amendment would impose on states. His objection was not to the prisoner release as such but to the idea that courts could require states to spend money to remedy constitutional violations. More like a conscientious legislator than a judge, he worried about cases that might arise and about the terrible inconvenience to states of court supervision: "What happens when you have this case, another district court ordering the State to take action with respect to environmental damage, another court saying, well, you've got to spend this much more on education for disabled, another court saying you've got to spend this much more on something else? How does the state sort out its obligations?"

Specter braved the chief justice's scowl. "Well," he responded, "my simple answer to your question, Your Honor--and I don't mean to be flippant--but ... they have an obligation to follow the federal law, constitutional law and other laws. And if they're not, then the federal court has an obligation to impose a remedy."

California itself conceded that it was violating the Eighth Amendment. (Subsequently, by a 5-4 vote, the Supreme Court affirmed the prisoner-release order.) But Chief Justice Roberts was more concerned about the prerogatives of government than about the established law.

Roberts is a visionary. Maybe what we need are judges who will just say, "In this case, the Constitution, or the law, favors this side or that." If we can get visionary judges out of the way in other cases, we the people can handle it on our own.

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