The Limits That Create Liberty & The Liberty That Creates Limits
(See Cover)
THE SUPREME COURT
We are very quiet there, but it is the quiet of a storm center.
--Mr. Justice Holmes
Race, religion, reapportionment--each year the storm that swirls around the Supreme Court of the United States gets fiercer. To some Americans, the nine black-robed Justices have struck blow after blow for national maturity.
To others, they seem bent on coddling criminals, abolishing God and undoing the U.S. political system. This week the Court begins its 175th year with even some of its best friends worried about its wide-ranging attack on social ills that are supposedly the business of Congress and state legislatures. Can the Court cure them by proscription--and survive the reaction?
The stormy Court-centered argument thunders in a different vocabulary these days. No longer are the Justices automatically split between liberals said to be bent on destroying big business and conservatives accused of old-fashioned economics. No longer is the Court derided as a collection of nine old men too fragmented in their opinions to be relied upon to set national standards. The present split is between those who believe in "judicial restraint"--men who feel that real power should reside with elected officials and that the Court may eventually destroy itself by assuming too much--and so-called "judicial activists"--those who insist that the far-ranging provisions of a great Constitution have never yet been fully applied to American life and that the Constitution would die if not continuously restudied in the light of modern life.
The activists now hold the upper hand. In a flood of decisions that run counter to state laws and local customs, the Court has in the past ten years:
> Overturned state-enforced racial segregation in public schools and other public facilities.
> Banned the official use of prayers and Bible reading in public schools.
> Forced state criminal courts and police to match the strict standards imposed on federal courts and agents by the Bill of Rights.
> Ordered all state legislatures to give equal representation to cities and suburbs by apportioning their voting districts strictly on the basis of population.
Plea for Understanding. "The Court is making decisions boom, boom, boom. Many of them are too absolute to fit a country of 190 million diverse people," frets a Yale professor. "Of all three branches of Government," says Republican Presidential Candidate Barry Goldwater, "today's Supreme Court is the least faithful to the constitutional tradition of limited Government and to the principle of legitimacy in the exercise of power."
Similar blasts in his day moved Justice Oliver Wendell Holmes to cry for "education in the obvious"--public understanding of the authority, purpose and performance of the Supreme Court. Yet today few Americans can even name the men whom Justice Harlan Fiske Stone wryly called the "nine black beetles in the temple of Karnak." Even fewer realize that the present Supreme Court is inspired if not dominated by a man utterly devoted, after his fashion, to limiting the power of the Government whenever it impinges on the rights of individual citizens. Mr. Justice Hugo La Fayette Black is one of the most ardent advocates of individual liberty in Supreme Court history.
Salty Septuagenarian. At 78, Hugo Black has served on the Court for 27 years under five Presidents, been Senior Justice for no less than 19 years. Justices Brennan, Goldberg, Stewart and White are young enough to be his sons. But there has yet to be any serious talk of Black's retiring. He is a wiry little man of boundless energy who plays ferocious tennis almost every day, sometimes four hours at a time. His blue-green eyes sparkle with the light of a mind still aggressive in the pursuit of learning. No other Justice has less formal education; yet none is more widely read than the libertarian Alabamian who deprecates himself as "a rather backward country fellow."
Black has lived to see the "Warren Court," as it is known out of respect for its Chief Justice, more accurately called the "Black Court" after its chief philosopher. No other Justice in the past 25 years, says Stanford Law Professor Gerald Gunther, "has cared more, worked harder and done more to persuade his colleagues to accept his constitutional philosophy." In fact, no other Justice in the Court's entire history has lived to see more of his dissents turned into doctrine--doctrine that construes the Bill of Rights more generously than ever before as the open society's chief antidote to Government indifference or suppression.
Savory & Unsavory. If the Court has yet to officially accept some of Black's pet views of the Constitution, it has nonetheless swung his way ever since Chief Justice Warren came to Washington in 1953 and pulled together a divided Court that, within a year, unanimously outlawed school segregation. Eisenhower Appointee Warren soon added a solid third vote to the activist bloc of Black and William O. Douglas. In William J. Brennan Jr., another Ike appointee, the bloc picked up a fairly dependable fourth vote. The decisive fifth came in 1962, when the ailing judicial restrainer, Felix Frankfurter, retired, to be succeeded by President Kennedy's gung-ho Labor Secretary, Arthur Goldberg.
Though no Court bloc has ever been solid on every issue, today's 5-4 majority has produced a Court with an unprecedented solicitude for individuals, the unsavory as well as the savory. The Court's hallmark is a greater-than-ever willingness to act in the face of a commonly overlooked fact: the failure of Congress for generations to pass laws enforcing the 14th Amendment, which was ratified in 1868.
The key provision of that amendment reads: No States shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Congressional failure to implement this left the Court as the only forum for vast social complaints--the Negro's demand for justice, the city dweller's cry for equal representation, the growth of Government power that stirs concern for individualism and the very quality of U.S. life.
Whether or not the Court should have acted on those complaints may now be less important than whether it has been too doctrinaire in how it acted. A look at the record:
sb RACE: Since the 1954 school decision, the Court has struck one judicial blow after another against state-enforced segregation, thus fueling the civil rights revolution and prodding Congress to pass the Civil Rights Act of 1964. Up for decision this term: the act's controversial public-accommodations title and the potentially combustible issue of antimiscegenation laws.
sb RELIGION: Far from being irreligious, the Court has been extending the First Amendment's church-state separation to accommodate the rise of U.S. religious diversity. In the late '40s, it ruled that tax-paid bussing of parochial schoolchildren and some public-school released-time programs are permissible because they do not involve the state in the actual teaching or support of religion. The recent ban on public-school prayers drew the line at state-enforced religious exercises in order to protect the country's nonbelievers. The alternative would have been for the Court to pass on every school prayer, thus further secularizing religion. Teaching about religion, if not of religion, is still permitted.
sb CRIMINAL JUSTICE: In a 1949 decision, the Court allowed states to accept or reject the "exclusionary rule," based on the Fourth Amendment, which bans evidence obtained by unreasonable search and seizure. But then came 1961's Mapp v. Ohio, ordering all states to obey the rule that even if illegally seized evidence shows guilt the defendant may be freed because the police violated the Constitution. Far less controversial: 1963's Gideon v. Wainwright, which overturned the conviction of Florida Indigent Clarence Earl Gideon, applies the Sixth Amendment's right to counsel to all defendants in state criminal courts. Overriding precedents going back to 1908, the Court last year said that under the Fifth Amendment a state cannot compel a person to testify against himself.
sb REAPPORTIONMENT: Plunging into what Frankfurter warned was a "political thicket," the Court has tackled the anomaly of rural minorities' controlling legislative majorities in at least 40 states. To give every citizen's vote equal weight, the Court ruled last June that under the 14th Amendment, every house of every state legislature must be apportioned on the basis of districts "as nearly of equal population as is practicable." Can one house of a bicameral legislature be organized on a nonpopulation basis to reflect minority interests? No, says the Court, because such a house might veto majority interests. Even so, the order does not preclude two different kinds of houses. As long as both are "substantially" based on population, they can differ in numerical size, length of terms, district size and district delegation (single-member or multimember). One house can also balance off "minor inequities" in the other's geographical representation. The Court does not expect "mathematical precision" but does demand reasonably frequent reapportionment, say every ten years.
Arming the Union. The reasoning by which the Court arrived at such state-taming decisions is rooted in the burgeoning nationalization of a country that was first united only by the Articles of Confederation, a compact so loaded in favor of the 13 independent-minded states that Congress could not tax, regulate commerce or conduct foreign relations. Only for the sake of national survival did the states by 1789 reluctantly ratify a Constitution that gave the Federalist central government a minimal power to function. As double insurance against federal tyranny, the states by 1791 approved the Constitution's first ten amendments, the Bill of Rights, the first eight articles of which were specific guarantees of individual liberty against the powers of the Federal Government.
To Federalists, the Bill of Rights seemed superfluous; the original Constitution was a model of caution that contained careful checks and balances on the powers of the President, Congress and the Supreme Court. As for the Court, Alexander Hamilton called it "the least dangerous branch." It would have "no influence over either the sword or the purse; no direction either of the strength or of the wealth of society; and can take no active resolution whatever."
Federalist Hamilton was partly wrong, or perhaps dissembling. If the Constitution stressed stability, it also permitted change. If the Government had limited power, it also needed more power to serve a nation that was growing in every direction. The swelling union required a unique umpire to allocate that power. The umpire was, and has been, the Court.
Eternal Expounding. In his audaciously activist regime (1801-35), Chief Justice John Marshall established the Supreme Court's right to review acts of Congress and State legislatures; he spelled out the supremacy of the Supreme Court over state courts in constitutional cases, as well as congressional authority over interstate commerce--a power so vast that it is now used, among other things, to regulate agriculture, limit prostitution, and forbid racial discrimination in public accommodations.
The states fought Marshall every inch of the way. When the Supreme Court ruled itself able to review state criminal cases, Virginia's chief justice accused Marshall of "that love of power which history informs us infects all who possess it." Marshall persisted. "It is a Constitution we are expounding," he said in 1819, holding that it must ever adapt to national change in order to "endure for ages."
The Supreme Court is still devoid of fiscal or physical power; it relies on the executive branch of the Government to enforce its orders and on Congress for its money and most of its jurisdiction. Congress can punish it by curbing its jurisdiction, by changing the number of Justices,* or by overruling decisions with new laws and (a much tougher job) proposed constitutional amendments.
Ultimate Tribunal. For all the checks and balances, though, the Court is more powerful than any other in the world. It rules on fundamental social and political questions that confront no other judges. But it exercises a power that is hedged in paradox. The Supreme Court's peculiar role is to lead, yet to follow; to be a national conscience, yet reflect a national consensus. Much of its work consists of construing federal statutes, the immensely influential job of deciding exactly what Congress intended when it forged a law in the heat of compromise. Much involves the regulation of all other federal courts, an activity which in turn affects state courts. Last and best known are the Court's great constitutional cases affecting the rights of all Americans.
Contrary to popular legend, the Court cannot spontaneously issue ex cathedra pronouncements about the ills of society. It must wait for issues to be presented by genuine litigants with "standing" or a personal stake in the conflict. Dubious laws may thus take years to reach the Court, and sometimes they get there long after the damage is done. On the other hand, the Court rejects cases not yet "ripe" for decision; it has been wary of hasty or sweeping opinions ever since the Dred Scott Decision of 1857 (noting that the founding fathers gave slaves "no rights which the white man is bound to respect") smashed the Missouri Compromise, helped to bring on the Civil War, and cast the Court into obscurity for 20 years.
Of more than 10 million cases tried in U.S. courts each year, the Supreme Court eventually receives some 2,500 and hands down opinions on only about 150. A refusal to review signifies neither approval nor disapproval of the lower-court decision. However just an appellant's claims, the Supreme Court is interested, or is supposed to be interested, only in issues of the most far-reaching applicability. "This is the nation's ultimate judicial tribunal, not a super legal-aid bureau," said Justice Frankfurter, who often argued that the Court was considering too many cases that were too limited to merit its attention.
Search for Consensus. To get a case accepted for review takes four votes at a weekly Friday conference, a secret ritual in a book-lined room with a portrait of John Marshall peering down over the marble fireplace. The Justices shake hands to show harmony and gather around a conference table in prescribed order to begin their intellectual conflict. The junior Justice dutifully tends the door. Only the Court itself knows the course of battle; not even a stenographer is present.
Cases accepted are later argued in open court, a harrowing experience for lawyers. There they stand at a rostrum facing the bench, trying in one hour or less to swing nine (or at least five) wholly different minds to their side. At mid-bench looms the benign Chief Justice Warren, ever ready to ask a prosecutor, "But were you fair?" To Warren's left is the brilliant William O. Douglas, seeming not to care, his leathery face bent over some private scribbling, until he suddenly looks up and lets fly with an acute question: "But wouldn't you say . . .?" To the right of the Chief Justice is the patriarchal Black, gently rocking in his green leather chair, helpfully breaking in to sum up whenever a lawyer puts a good point badly: "Now, as I understand your argument . . ."
At the next Friday conference, the Justices discuss and argue and finally vote, before Warren (or the majority's senior Justice if Warren dissents) assigns the job of writing the majority's opinion. But even then the Court has not necessarily come to a conclusion. In their secret search for consensus, which may take months for a complex opinion, well-guarded drafts are printed in the Court's basement and passed among the Justices for criticism. In a process of dissuasion as well as persuasion, opinions may change enough so that the majority of Justices switches sides. All this goes on without a single leak to the press until a Monday "decision day," when the Justices file into court and begin reading aloud another constitutional thunderbolt.
Divining from Dreams. The job of generating those thunderbolts pays $39,500 a year (plus a generous flow of hate mail), and a Justice can retire on full pay at 65. But the perquisites stop there. Except for Warren's Government Cadillac, no Justice gets a free car, house, servants or entertainment allowance; only Warren gets security protection. For novices used to worldlier ways, the monastic life is often a harsh surprise. Justice Arthur Goldberg, formerly the fire-chief U.S. Labor Secretary, is still restless. "The Secretary's phone never stops ringing," muses Goldberg. "The Justice's phone never rings--even his best friends won't call him."
The work of a Supreme Court Justice is so intellectually demanding, that when Potter Stewart arrived from a grueling enough U.S. appeals court in 1958, his first reaction was, "I can't do this." In 1962, after only five years on the bench, the strain forced Justice Charles Whittaker to retire, leaving the field to rugged ex-Football Star Byron White. Though the Court has overruled itself about 150 times, the big headache remains the search for principles that lower courts can follow as long as possible. Yet a Justice charged with being the final authority on issues as combustible as obscenity and miscegenation cannot simply look up the answers in a law book. All the written Constitution gives him is a scant 7,000 words of Delphic injunctions and 18th century specifics. To this he must add all he can muster of history, judgment and personal wisdom--the highest kind of statesmanship. Whatever the Constitution's framers envisioned, mused Justice Robert H. Jackson, "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."
Opening a Door. Apart from Article I's commerce clause, the fount of national regulatory power, no constitutional dreams have been harder to divine than the Bill of Rights, which the Court was called upon to invoke against the states in an 1833 Maryland case (Barron v. Baltimore). Quickly recoiling from that idea, the Court held that the Bill applied only against the Federal Government. After that, the states were free to ignore--and many did--the Constitution's most basic guarantees of civil liberties.
Then came the Civil War's great gift to the Constitution, the 14th Amendment, designed mainly to prevent Southern states from abusing Negroes. It was not long before judicial activists were presenting the argument that Black himself has since so hotly defended: that the 14th Amendment's due-process clause "incorporated" all the protections of the Bill of Rights and imposed them on the states. The Court disagreed, but over the years it slowly began to push the First Amendment's "preferred freedoms" of speech and press through the 14th Amendment door and onto the states as part of what Justice Benjamin Cardozo called a national "scheme of ordered liberty."
From the 1890s to the 1930s, the Court was so concerned with the welfare of American business that it used the 14th Amendment mainly to protect corporations as "persons," striking down all sorts of state laws regulating business on the grounds that they violated "liberty of contract." New York was forbidden to set a ten-hour day for bakers; out went minimum-wage laws for women and children. Such judicial activism was so out of touch with popular feelings that it finally led to the Court's famous collision with Franklin Roosevelt--and to the stormy appointment of Mr. Justice Black in 1937.
"Born Witch Burner." A zealous New Dealer who was born on his father's farm in Clay County, Ala., Hugo Black managed to earn a law degree at the University of Alabama without ever going to college, then became a Birmingham police-court judge and a crack negligence lawyer. In 1926, his Populist fervor persuaded Alabamians to elect him to the U.S. Senate. Aware of his spotty schooling, he spent his first term buried in the Library of Congress reading Aquinas, Aristotle, Herodotus, Locke, Marx, Mill, Montesquieu, Plutarch, Tacitus, Spinoza, Thucydides, Shakespeare, the records of the Constitutional Convention, and all of Thomas Jefferson.
Armed with that formidable self-education, Black emerged in his second term as one of the Senate's most ardent Roosevelt supporters, a relentless, high-handed (and hardly judicious) investigator of public-utility lobbies, a prime mover of TVA, and a thundering critic of "judicial usurpation" by a Supreme Court that was overruling one piece of New Deal legislation after another. When F.D.R. failed in his plan to pack the Court with pro-New Dealers in 1937, he did the next best thing: he named Senator Black to fill the vacancy left by retiring Justice Willis Van Devanter. It was a well-planned ploy: the Senate could hardly refuse to confirm one of its own.
But appointing Supreme Court Justices for political reasons is dubious business. Teddy Roosevelt thought he had a dutiful trustbuster in Holmes. Then Holmes handed down his first important dissent in favor of a big corporation, inciting T. R. to snarl that the new Justice had less backbone than a banana. The early fruits of Black's appointment were equally bitter. Choleric ex-NRA Administrator Hugh Johnson denounced him as "a born witch burner --narrow, prejudiced, class-conscious." Not only did the New York Herald Tribune storm that he had "not the slightest qualification," but newsmen soon discovered that he had once been a Ku Klux Klansman. Black took to the radio to announce that he had indeed been a Klansman for a short time, added that he was not a bigot, and insisted that he would say no more about it.
A Switch in Time. Black responded so magnificently to his new job that today he is no more welcome in racist Alabama than he would ever have been in fiery Salem. The Court responded so adroitly to F.D.R.'s packing threat that it began upholding New Deal legislation in a turnabout that cynics called "a switch in time that saved nine." Ever since, its judicial concern has been focused not so much on property rights as on human rights.
When Mr. Justice Black took his seat in 1937 at the age of 51, he had a New Dealer's faith in the goodness of Government power. Backing up F.D.R. in World War II, he wrote the Court's 1944 opinion upholding the wholesale relocation of West Coast Japanese-Americans (actively supported in 1942 by California's then attorney general, Earl Warren) over Justice Frank Murphy's eloquent dissent that called the ruling "the ugly abyss of racism." By 1952, Black had swung so far around to a concept of limited Government that he wrote the Court's opinion overruling President Truman's seizure of the strike-threatened steel industry.
What's Reasonable? Black was often in hot opposition to his social friend and judicial enemy, Justice Frankfurter, who believed that "judicial restraint" required judges to defer to administrators and legislators as being more expert and closer to the public will. Unwise policies should be corrected at the ballot box, Frankfurter argued; it is neither democratic nor efficient for nine lifetime judges to issue rigid orders about matters best left to elected compromisers.
Justice Holmes once half-jested that "if the people want to go to hell, I will help them. It's my job." Black studied the Constitution and found definite rules --"absolutes," he called them--that forbade any such attitude. He particularly balked at Frankfurter's thesis that the Court must balance personal freedoms against Government needs and uphold any "reasonable" Government action. To Black, the "balancing test" was a turning away from the Constitution: it freed judges to pursue their own notions of reasonableness and veered "close to the English doctrine of legislative omnipotence." Where were the limits?
All this, Black argued, was evident in the Court's contradictory use of the 14th Amendment. On the one hand, it used the due-process clause to protect property rights by striking down state economic regulation. On the other, it backed away from using the same clause to bring state criminal-law procedures up to Bill of Rights standards. In the 1942 case of Belts v. Brady, for example, the Court upheld the robbery conviction of a jobless Maryland farm hand who had been too poor to hire a lawyer. The Sixth Amendment's guarantee of the right to counsel applies only in federal courts, said the Court, ruling that states need furnish indigents with lawyers only in "shocking" circumstances.
Painful Precedents. Black sharply dissented, but the vaguely worded rule remained on the books to cause case-by-case confusion for the next two decades. In 1947, the Court took a similar tack in Adamson v. California, saying that the Fifth Amendment did not forbid states to pressure a defendant to testify against himself. Calling this "an incongruous excrescence on our Constitution," Black offered an elaborately researched dissent arguing that the 14th Amendment's framers themselves intended the Bill of Rights as a shield against the states. He won over three other Justices (Douglas, Murphy, Rutledge). A fifth vote would have turned his theory of incorporation into law.
After that, Black became a lonely dissenter, with only Douglas for an ally. Murphy and Rutledge died in 1949, and their successors--Tom C. Clark and Sherman Minton--consistently disagreed with him. Black's wife died in 1951, plunging him into gloom for six years, until he married his secretary (and quickly taught her tennis). Amid all this, Black was alarmed at the Court's bend-over-backward opinions during the McCarthy-era prosecution of real or suspected Communists. One after another, his dissents contained such phrases as "I regret, deeply regret," and "this weird, debilitating interpretation."
Firstness of the First. When the Court upheld "non-Communist" loyalty oaths for union leaders under the Taft-Hartley Act, Black tartly informed his colleagues that "the First Amendment forbids compromise." When the Court upheld the 1951 conviction of Communist leaders for teaching and advocating violent overthrow of the Government--thereby upholding the Smith Act, heir to World War I's Sedition Act--Black protested that the decision "waters down the First Amendment so that it amounts to little more than an admonition to Congress." He was trying to save principles, not Communists.
In sharp reaction to "the present period of fear," Black built his theory of "absolutes"--a this-far, no farther attitude toward both Frankfurter's balancing test and what Black has called the Court's "accordion-like" view of the Constitution.
Black tirelessly translated 18th century admonitions into 20th century contexts. Faced with a law stripping an ex-Communist alien of social security benefits, Black called it a new version of the old bill of attainder, forbidden in Article 1. Black insisted that the framers did all necessary balancing when they wrote the Constitution. When the First Amendment says "Congress shall make no law," he argued, "no law means no law."
So fervent is Black's present belief in the "firstness" of the First Amendment, "the heart of our Government," that he says absolute freedom of speech even permits the publication of pornography, no matter how "hard-core." If obscenity is now considered a special kind of nonspeech for which people can be arrested, what is to prevent some demagogue from calling his critics "obscene" and arresting them? That, says Black, citing his well-thumbed Tacitus, is just what happened in Rome under Caesar Augustus. Moreover, the Supreme Court's current obscenity doctrine forces it to read every allegedly hard-core work to see how shocking it is, a task for which Black finds his brethren ill suited and unable to set "reasonably fixed and certain standards."
Politics & Principles. If a search for national standards is what basically haunts Black and his brethren, the frequently fiat-like results have obviously upset many Americans. Totally apart from the Birchers, with their campaign to "impeach Earl Warren," the critics of at least some decisions include such highly respectable friends of the Court as Harvard's famed Law Professor Paul Freund, who sees in its drumfire decisions "a tendency to make broad principles do service for specific problems that demand differentiation, a tendency toward overbroadness that is not an augury of enduring work."
It is equally obvious, though, that most Americans revere the Court, however little they understand it. Unlike 1937, the Court is now riding a national tide rather than trying to turn it. A recent Gallup poll shows a 3-to-2 national majority supporting reapportionment. Once again Dissenter Black has triumphed, for it was he who argued against Frankfurter back in 1946, when the Court rejected a reapportionment case as too "political."
Responsive & Responsible. Though he disagrees with the Court's formula, Professor Freund, too, sees reapportionment as one of the great steps toward "responsive Government" that the Court is obliged to take when the political process is not "clean and clear." Among other such steps, Freund counts a strong 1957 decision that tightened the Smith Act by requiring proof that alleged Communists actually incited, not just advocated, overthrow of the Government. Another national air cleaner, says Freund, was last term's overruling of Washington State's vague loyalty oath requiring teachers to swear that they were not "subversive persons." Further bolstering free speech, the Court upset an Alabama public official's $500,000 libel judgment against the New York Times, ruling that a public official cannot recover from his critics unless he proves deliberate malice.
The Court's second great goal, says Freund, is "responsible Government," meaning one that abides by the rules, that keeps its own laws "when it brings the ultimate force of society to bear on an individual." Toward that end, Freund cites 1961 's Mapp v. Ohio, which for the first time has forced state and local police to get search warrants. In 1963, Justice Black triumphantly announced the overruling of 1942's Betts by the landmark Gideon v. Wainwright, which established the right to counsel in state criminal courts and set free Clarence Gideon, a Florida indigent found guilty of breaking into a pool hall. And last term, Black's 1947 Adamson dissent became law when the Court held that the Fifth Amendment privilege against self-incrimination applies to the states as well as the Federal Government.
National Due Process.This has caused cries that the Supreme Court is stacking the odds in favor of criminals. Indeed such decisions have made the policeman's lot no happier. But the Court believes with Black that criminal-law methods are the telltale "measures by which the quality of our civilization may be judged." And for the first time since 1791, virtually all the most important provisions of the Bill of Rights have become the state as well as the federal process due all Americans. Now demanded of the states are the entire First Amendment; the Fourth's guarantees against unreasonable searches and seizures; the Fifth's privilege against selfincrimination; the Sixth's right to counsel, jury trial and confrontation with witnesses; the Eighth's guarantee against cruel and unusual punishment.
These vindications of Mr. Justice Black do not leave him entirely in disagreement with the Court's current lonely dissenter, Justice John Marshall Harlan, Frankfurter's spiritual, if less persuasive, heir. (Legal wags call him "Frankfurter without the mustard.") Over and over, Harlan warns against the idea "that every major social ill in the country can find its cure in some constitutional 'principle' and that this Court should take the lead in promoting reform when other branches of Government fail to act."
Unfolding Limits? Black believes that the Court must act--but only to protect real fundamentals. When the Court curbed jury prerogatives, Dissenter Black snapped that "the Constitution long ago made the decision that juries are to be trusted." His brethren, he said, have "no power to treat as unconstitutional every state law or procedure that the Court believes to be 'unfair.' " In some ways, Black has become the Frankfurter restrainer of ebullient Justice Goldberg, who sees the Court as a "national schoolmaster." During last term's sit-in cases (set aside on narrow grounds), Goldberg argued that the 14th Amendment bans private racial discrimination in public accommodations. Not so, snapped Black. In the absence of state-enforced segregation or valid federal law, said Black, the 14th Amendment "does not compel either a black man or a white man running his own private business to trade with anyone else against his will." And he added: "The worst citizen no less than the best is entitled to equal protection of the laws of his state and of his nation."
Many of the Court's most knowledgeable observers believe that Black's defense of property rights not only shows a sure sense of the law's limits, but also serves as a reminder that the 14th Amendment embodies an old American proposition that somewhere Government power stops and the right to privacy begins. This week the Court begins a new term in its endless quest for the proper limits creating liberty and the range of liberty creating limits, proving once again that "equal justice under law" is what the U.S. Supreme Court is all about.
* The Court was organized with six Justices in 1789, was cut to five in 1801 by the lame-duck Federalist Congress to prevent President Jefferson from appointing a Republican. Congress raised the number to seven in 1807, nine in 1837, ten in 1863, cut back to the present nine in 1869. Had Congress approved F.D.R.'s court-packing plan in 1937, there could now be 15 Justices.
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