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On The Supreme Court and Judicial Review-An Answer to Michael Klarmen by Barath Nagarajan Jul 12, 2014 – 1:51pm

 Counter Majoritarian Hero or Sign of the Times

    I will argue that the Court has played a counter majoritarian hero role in certain cases where there was a moral imperative involved. In Rethinking the Civil Rights and Liberties Revolution Michael Klarmen argues that it is common wisdom that a fundamental purpose of judicial review it to protect minority rights from majority overreaching. He calls this the “heroic counter majoritarian” view of the Court. Klarman argues this view is actually wrong. The Court only safeguards minority rights after a majority has come to acknowledge their legitimac Furthermore, it is part of the judicial branch’s function to exercise judicial review or the power of the federal courts to review acts of government and strike down government actions when incompatible with the constitution, a limitation on majority overreaching. Finally, the Court plays a key role in prescribing the limits of government action such as in Fourth Amendment cases, or in cases involving the Sixth Amendment’s “Confrontation Clause”. By doing so it protects individual liberties by limiting the reach of government power.

     It is easy with hindsight to argue that “of course Plessy was wrong”, “The Brown Decision was obvious”, “Griswold was a silly law that no one would take seriously” etc…because we look at those decisions from our modern viewpoint rather than understanding them in the era in which they were decided. Black and white children could not go to school together peacefully, as long as the facilities are equal there is no discrimination, contraceptives promoted sexual promiscuity, people of the time might have argued.

    The questions of our day that come before courts are controversial with people on both sides. Like the cases that came before in different eras they are difficult to resolve. But, how can one protect a right when a technology that bears on the right has not even been invented yet? How can a court protect a right to birth control pills until doctors have invented them (as in Griswold)? Or how can the court protect one against warrantless electronic eavesdropping (U.S. v Katz), or a warrant requirement for thermal imaging (as in Kyllo v. United States), a rule of evidences for DNA evidence (Williams v. Illinois), limit the scope of GPS tracking (U.S v Jones) or morning after pills, until the technology has become advanced and poses new threats to people’s liberties? As Justice Brandeis argued in his Olmstead dissent the advancement of technology itself poses new and greater risks to civil rights and liberties.

     The role of the Supreme Court as an “anti-majoritarian” champion of individual rights can best be seen in the movement towards incorporation of the Bill of Rights through the Fourteenth Amendment. Protections against the federal power were already accepted, but the main threat to individual liberty lay in the police power of the State governments.

     Until the mid-part of the 20th century Barron v. Baltimore,32 U.S. 243 (1833) was the rule. The Court held that it was not the express intention of the Framers to include the protections of the Bill of Rights as against infringement by the States. If the Framers had intended to do so States would not have their own constitutions and the Constitution would say so in express words. The only decisions that were truly activist such as in Marbury v. Madison, 1 CR 137(1803) establishing the Court’s right of judicial review, or the decision in Mculloch v. Maryland, 17 U.S. 316(1819) striking down a Maryland law that placed a tax on the Second Bank of the United States and upheld the constitutionality of the bank, could be seen as activist. But, those decisions were in favor of the federal power not civil rights or liberties.

      In the Slaughterhouse cases, 83 U.S. 36 (1873) the Court had made the privileges and immunities clause of the Fourteenth Amendment useless in the incorporation of rights and based its doctrine on the issue that the clause only protected rights that were national in character and that the domain of the protection of civil rights was within the states prerogative.  Following the Slaughterhouse decision Cruikshank,92 U.S. 542(1876) was decided based on the dual citizenship doctrine of Slaughterhouse in dismissing an action under the Enforcement Act of 1870 now known as “Conspiracy against Rights” statute. It was not until the “selective incorporation” movement began that the distinction between National rights belonging to U.S. citizenship and citizenship of a State became of little merit since almost all the basic protections in the Bill of Rights became enforceable against the states through the due process clause of the Fourteenth Amendment.

     Notably, the Court later overruled the Cruikshank decision where there was at least “state connivance” or indirect state action, or “misuse of power possessed by virtue of state law…made possible because the wrongdoer is clothed with the authority of the state…”  The Court upheld convictions under “Conspiracy Against Rights” (18 U.S.C. 241) and “Deprivation of Rights Under Color of Law” (18 U.S.C. 242), in U.S v Price, 383 U.S. 787 (1966), United States v. Guest, 383 U.S. 745 (1966) handed down the same day, and in Screws v. United States, 325 U.S. 91 (1945).

     Following the decision in Heller, 554 U.S. 570(2008), in which the Court ruled the right to bear arms was an individual right, the Court stated in McDonald v City of Chicago, 561 U.S. 130 (2010) that the right was fundamental to the American scheme of justice and incorporated through the Fourteenth Amendment. As the Court stated in McDonald, consideration of incorporating the Bill of Rights through the due process clause only began in the latter part of the 19th century.  One must take into account developments in theory and application of constitutional law when assessing a right. How can the Court protect a right when it has not yet held that such a right exists? (against infringement by the states in these cases)

       Activism in protecting civil rights and liberties had generally been in the economic sphere prior to 1937.  In Lochner v. New York, 198 U.S. 45(!907) the Court struck down a state law regulating baker’s hours based on the interpretation that the law unreasonably, invidiously, capriciously, or arbitrarily, infringed on Lochner’s substantive due process rights . The Court struck down New Deal legislation under a theory of lassiez faire capitalism. The Court later upheld a similar state minimum wage law under state police power in West Coast Hotel v. Parrish, 300 U.S. 329 (1937) against a freedom contract challenge.

     The Court reversed direction after the Court packing plan in 1937. It was at this time that the birth of the modern double standard was born. Economic proprietarian interests and essential personal rights were treated by the court differently. The theory began to take shape as a suggestion in a seemingly unrelated footnote, in the now famous footnote no. 4 in Carolene products, 304 U.S. 144(1938) by Justice Stone in 1938. It stated 1. There may be a narrower scope of operation when legislation appears on its face to be within a specific prohibition of the first ten amendments (a higher degree of judicial scrutiny) when held equally specific within the Fourteenth. There may also be a higher level of scrutiny or more exacting level of judicial review under the Fourteenth Amendment of legislation that restricts political processes normally expected to bring about repeal of undesirable legislation.3. There may be a higher standard of judicial review for legislation directed at particular religious, discrete or insular minorities.

      The framework for incorporation of the bill of rights as against state infringement began to have a structural framework. This framework was more evident In Justice Cardozo’s opinion in Palko v Connecticut, 302 U.S. 319 (1937) where he provided a framework for selective incorporation for “preferred freedoms” or essential rights. In ruling that the Fifth Amendment double jeopardy clause is not incorporated into the Fourteenth Justice Cardozo nevertheless provided the criteria for incorporation. Rights incorporated found to be “implicit in the concept of orderly liberty” and at the very “essence of a scheme of ordered liberty “which to “abolish them would violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” such that to violate them neither liberty or justice would exist if they were sacrificed” were to be included.  The question in each case was “does it violate those fundamental principles which lie at the base of our civil and political institutions.” The Palko Court held that double jeopardy was not an essential guarantee, but that holding was reversed in Benton v. Maryland, 391 U.S. 123 (1969).

      The First Amendment protections of speech and press were incorporated in 1925 in an offhand way in the subversive speech case of socialist Benjamin Gitlow in the case of Gitlow v. New York, 268 U.S.652(1925). Though in the cases of Palko, Gitlow and other selective incorporation cases of the day the individual’s lost their cases.

    The beginning of the civil rights and Liberties revolution had their seeds in this framework, but it was the Warren Court that caused the “Civil Rights and Liberties Revolution”. In this sense I argue that there is a split between justices that are activist or right decision oriented, like Chief Justice Warren and precedent minded judges such as Justice Frankfurter. In essence the Court balances individual freedom and the rights of society, and weighs in on the moral imperatives of their day. These counter majoritarian decisions generally fall into two categories, civil rights decions- or rights protecting equality, and civil liberties decisions- or rights protecting individual freedom.

    In Brown v Board, 347 U.S. 483(1954) the court in 1954 struck down racial segregation in public schools. The decision falls into the civil rights category, protecting the rights of minorities in public education to be treated equally and not stamped with a badge of inferiority. The Court’s decision stated “We conclude in the field of public education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.”  The Chief Justice took the opinion for himself for a unanimous court. After Brown because the Court and the Chief justice had taken an activist role and great risk, they wanted to make sure the decision would be respected and enforced. Thus Chief Justice Warren’s judicial philosophy, based on basic fairness and egalitarianism, slowly became crystallized as cases came before the court during his tenure as Chief Justice.

       In Baker v. Carr, 369 U.S. 186(1962) the court upheld the jurisdiction of federal courts in reapportionment cases against the dissent of justices like Frankfurter who feared meddling in a “political thicket” and getting the Court involved in a “mathematical quagmire” in redistricting. Again activism was for the purpose of equality among voters. The Warren Court decision in Reynolds v. Simms, 377 U.S.533(1964) enshrined the slogan “One Man One Vote” into law.

     In criminal procedure cases such as Gideon v. Wainwright, 372 U.S. 325(1963) the Court upheld the right to counsel under the grounds that the Constitution does not just protect those wealthy enough to hire an attorney. The Constitution protects everyone equally. In other cases such as Escobedo v. Illinois, 378 U.S. 478(1964), and Miranda v. Arizona, 384 U.S. 436(1966) (Fifth and Sixth Amendment interrogation/confession cases) the Court moved further in the direction of equality. The Constitution protects a person whether rich or poor, strong or weak and whether they know what their rights are or not.

     When one wants to look at the counter majoritarian role of the Court it can be useful to the discussion to look at Fourth Amendment cases. In Chimel v California, 395 U.S.752 (1969) the Court ruled that a warrant to arrest a person does not furnish the requisite probable cause for a general search of his house or premises. In United States v. Robinson, 414 U.S.218(1973) the Court ruled searching a person incident to a lawful arrest is an exception to the warrant rule and a reasonable search. In California v Acevedo, 500 U.S. 565 (1991) the Court ruled that if there is probable cause to search a container they may only search the container without a warrant, if the police have probable to search a car they may search any closed containers within the car. Thus there is one rule for automobile searches, with exigent circumstances, concerning vehicles and closed containers.

      In the case of Katz v United States, 389 U.S. 347 (1967) the petitioner was convicted of transmitting wagering information by telephone. At trial the government introduced evidence of defendant’s telephone conversation, overheard by FBI agents who had attached a listening device to the outside of the public telephone. The government should have obtained a judicial order by a magistrate. The Court ruled the Fourth Amendment protects people not places. The warrantless wiretap was an unreasonable search. A judicial order would limit the scope of the search.

     Sixth Amendment cases involving the confrontation clause also show how the Court can act to limit government power.  In Bruton v United States, 391 U.S.123 (1968) the Court ruled that a confession of a codefendant Evans to a postal inspector, after the trial court had instructed the jury to only use it as evidence against the Evans, but to disregard it towards the Petitioner Bruton, where Evans did not testify and so was not subject to cross examination, violated Bruton’s right to confront witnesses against him. The reasoning being if the jury concludes that person A confessed to criminal action with B, but is expected to ignore the conclusion that B committed the criminal acts with A requires the jury to segregate evidence and taints its verdict. In doing so the Court set aside Bruton’s conviction. In Maryland v Craig, 297 U.S. 836 (1990) the Court ruled confrontation was and fundamental right, but upheld testimony by one way closed circuit television without face to face confrontation, in a child abuse case, when the child was unable to communicate in the defendant’s presence, as the state’s interest in protecting the child was compelling. In Williams v. Illinois, No. 10-8505, (2012) the Court ruled in a DNA evidence case that Expert’s testimony on evidence from a private lab called Cellmark that showed a blood match to the crime, where defendants could not cross examine the lab technicians, but only a government expert on DNA evidence, did not violate the confrontation clause.

    So what is the Court doing in these cases? It is limiting police or law enforcement practices by requiring warrants stating probable cause or protecting the right to Confrontation and rigorous cross examination of witnesses to discredit their testimony, and setting ethical guidelines for the government to protect the individual’s life or liberty. The Court acts as a protection for individuals against unfair law enforcement practices. In doing so it has a decidedly counter majoritarian function.

     Taking another example if we look at the double jeopardy clause at issue in Benton v. Maryland, 395 U.S.784(1969) of the Fifth Amendment, we can see the Court acting as a limitation on the government’s power. Benton was convicted of burglary but acquitted of larceny. His convictions were thrown out on appeal due to the oath that jurors had to take on the existence of God. On retrial he was convicted of both offenses. He appealed citing double jeopardy on the larceny charge. The Court invalidated the larceny conviction as violative of the Fifth Amendment. In this way part of the function of the Court is to place restrictions on government prosecutors and police and by striking down legislation repugnant with the Constitution as a limitation on government power.

      In certain cases the Court has not been willing to protect counter majoritarian interests. During the Red Scares of the 20’s and 50’s the court refused to play counter majoritarian hero due in part to the  view that Communism was an “ evil” that they should not get involved in. In a line of cases from Schenck v. United States, 249 U.S. 47(1919), to Abrams, Giitlow, Whitney, Dennis the Court upheld laws banning subversive speech. In part, this was because the Court overall save Justice Brandeis and in some cases Justice Holmes, were not activist. But more importantly because the moral imperatives of the times were not clear. After the excesses of McCarthyism the Court realized that the Communist threat was not a clear danger to overthrow the government as the doctrine had fallen into disrepute.

      Notably in Brandenburg v Ohio, 395 U.S. 444 (1969) the Court struck down the Ohio Criminal Syndicalism statute and protected the civil liberties of the Klan to free speech and association.  In doing so it clarified prior the First Amendment rulings from Schenck to Dennis, restated Schenck’s “Clear and Present Danger” test or overruled it, and imposed a stricter First Amendment test. It ruled that “a State was not permitted to forbid advocacy of use of force or law violation except where such advocacy is directed to inciting or promoting imminent lawless action and is likely to incite or produce such action”. The ruling seems to be a decidedly counter majoritarian and pro individual liberty.

As I have argued when the moral imperatives of an issue becomes clear the Court is often willing to play the role of a bulwark of freedom and equality even against popular resistance. Nonetheless, the Court can overreach its authority and then receive a backlash when it moves too fast towards what they think is a humanitarian goal. In the case of the death penalty jurisprudence the Court invalidated death penalty statutes under the eighth Amendment in Furman v Georgia, 408 U.S. 238(1972) as being inflicted by a system that inflicted a severe punishment arbitrarily or freakishly or capriciously. State legislatures quickly passed laws that controlled jury discretion with aggravating and mitigating factors and a bifurcated trial. Seeing that they had not correctly assessed its role or correctly considered popular opinion or whether they could change it by leadership as it had in Brown the Court backed down and upheld the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976), only four years after its ruling in Furman. 

      In First Amendment cases such as Abington Township v Schempp, 374 U.S.203 (1963) and Engels v. Vitale, 370 U.S. 421 (1962) the Court struck down school prayer against a majority. The reason behind those decisions is because the moral imperatives were ambiguous enough that the Court could see its action as protecting against Establishment of religion, as fulfilling the moral imperative of freedom of worship without transgressing any fundamental moral principle. The right to not have religious beliefs forced on you is a moral imperative as well.

     The question of when the Court is activist often has to do with its makeup. Neither the Burger Court nor the Rehnquist Courts were activist in protecting civil rights and liberties. They did not see the moral imperative in it unless they were upholding a traditional precedent based, textual or original intent based view of the constitution. Yet, they upheld the basic holdings in almost all the Warren Court decisions and only altered the scope of those rulings. Mapp and Miranda and Brown are still the “good law”.

    So why does the Court not play counter majoritarian hero against majority overreaching in cases like sexual orientation discrimination or in abortion cases? Simply, as I have argued, in our time the moral imperatives are not clear. Many Americans believe the moral imperatives are on the side of ruling against abortion or against gay rights. I argue that current issues like gay  marriage or right to abortion, do not have the clear moral imperatives that were a catalyst for the judicial activism that the led to the civil rights and liberties revolution. The Roe v. Wade, 410 U.S. 113(1973), decision is still controversial because people see the moral imperative to be on the other side in not protecting the right. If Brown has become almost sacrosanct in the 60 years since it was passed Roe hasn’t simply because people do not accept the moral imperative that was at issue in Roe, but the moral imperative in desegregation is widely accepted by almost everyone.

       Finally in our current era the issue of National Security has been an area where the Supreme Court decidedly has not been the counter majoritarian hero, but where it could have been. In the case of Anwar Al Awalaki, who was on a government kill list, the federal Courts refused to intervene when his father brought suit for an injunction while his son was in Yemen arguing that we were not at war with Yemen, there was no imminent threat to us and that there were other alternatives open to the government… The federal courts rejected his father’s petition, citing that his father did not have standing to bring the suit, and Awalaki died as a result of a United States drone strike.

      In conclusion, the Court does play the role of counter majoritarian hero when it has the right balance of justices who will be activist when moral imperatives are involved. It also does so by exercising judicial review and by placing limits on law enforcement agencies, police and prosecutors. This is part of its function. In doing so it acts as a bulwark of individual liberty. Yet, what the moral imperatives are during a time are often unclear and arguments that in retrospect seem silly or unconvincing were legitimate concerns in that time. The issues that vex public policy today may seem obvious or trivial in ages to come. In our current time frame, the decisions that confront the Court and society seem difficult as the decisions made in prior periods seemed difficult then. We can only hope that the decisions the Court makes reach the legitimate moral objectives that are the commands of the law.

See also:  Klarmen Michael J., Rethinking the Civil Rights and Civil Liberties Revolutions. Virginia Law Review, Vol. 82, No.1(Feb. !996)pp.1-67     

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