In the period from 1953-1969, Earl Warren became the most powerful Chief Justice since John Marshall as he led the Court through a dazzling series of rulings that established the judiciary as a more than equal partner in government – an outcome deemed impossible by Alexander Hamilton in his influential paper Federalist 78 and an outcome deemed undesirable for the separation of powers in government by Montesquieu in his seminalThe Spirit of the Laws. The impact of this Court was so dramatic that it provoked a nationwide call among conservatives for Warren’s impeachment. (Click HERE).
As the Cold War intensified, the historical American separation of Church and State was compromised. In the name of combating godless communism, the national motto was changed! From the earliest days of the Republic, the motto had been “E Pluribus Unum,” which is the Latin for “Out of Many, One”; this motto was adopted by an Act of Congress under the Articles of Confederation in 1782. In 1956, the official motto became “In God We Trust” and that text now appears on all U.S. paper currency. Shouldn’t they at least have asked what deist leaning Washington, Jefferson, Franklin and Hamilton would have thought before doing this – after all their pictures are on the bills?
Spurred on by the fact that the phrase “under God” appears in most versions of the Gettysburg Address,
that this nation, under God, shall have a new birth of freedom
groups affiliated with organized religion like the Knights of Columbus successfully campaigned for Congress to insert this phrase into the Pledge of Allegiance; this was done in 1954. Interestingly, “under God” does not appear in Lincoln’s written text for the cemetery dedication speech but was recorded by listeners who were taking notes. Again, this insertion in the Pledge was justified at the time by need to rally the troops in the struggle against atheistic communism. In particular, in the Catholic Church a link was established between the apparitions of The Virgin at Fatima in the period from May to October of 1917 and the October Revolution in Russia in 1917 – though the Revolution actually took place on November 6th and 7th in the Gregorian Calendar; with the Cold War raging, the message of Fatima became to say the rosary for the conversion of Russia, a directive that was followed fervently by the laity, especially school children during the 1950s and 1960s. In addition, the “Second Secret” of Our Lady of Fatima was revealed to contain the line “If my requests are heeded, Russia will be converted, and there will be peace.” When the Soviet Union fell at the end of 1991, credit was ascribed to Ronald Reagan and other political figures; American Catholics of a certain age felt slighted indeed when their contributing effort went unrecognized by the general public!!
The course was reversed somewhat with the Warren Court’s verdict in Engle v. Vitale (1962) when the Court declared that organized school prayer violated the separation of Church and State. A second (and better known) decision followed in Abington School District v. Schempp (1963) where the Court ruled that official school Bible reading also violated the separation of Church and State. This latter case is better known in part because it involved the controversial atheist Madalyn Murray O’Hair who went on to make an unsuccessful court challenge to remove “In God We Trust” from U.S. paper currency. Ironically, the federal courts that thwarted this effort cited Abington School District where Justice Brennan’s concurring opinion explicitly stated that “the motto” was simply too woven into the fabric of American life to “present that type of involvement which the First Amendment prohibits.” In the U.S., “God” written with a capital “G” refers specifically to the Christian deity; so a critic deconstructing Brennan’s logic might argue that Brennan concedes that worship of this deity is already an established religion here.
The Warren Court also had a significant impact on other areas of rights and liberties.
With Baker v. Carr (1962) and Reynolds v. Sims (1964), the Court codified the principle of “one man, one vote.” In the Baker case, the key issue was whether state legislative redistricting was a matter for state and federal legislatures or whether it came under the authority of the courts. Here, the Court overturned its own decision in Colegrove v. Green (1946) where it ruled that such redistricting was a matter for the legislatures themselves with Justice Frankfurter declaring “Courts ought not to enter this political thicket.” The majority opinion in the Baker ruling was written by Justice Brennan; Frankfurter naturally dissented. In any case, this was a bold usurpation of authority on the part of the Supreme Court, something hard to undo even should Congress wish to do so. Again we are very far from Marbury v. Madison; were that case to come up today, one would be very surprised if the Supreme Court didn’t instruct Secretary of State Madison to install Marbury as Justice of the Peace in Washington D.C.
With Gideon v. Wainwright (1963) the Court established the accused’s right to a lawyer in state legal proceedings. This right is established for defendants vis-à-vis the federal government by the Bill of Rights with the Fifth and Sixth Amendments; this case extended that protection to defendants in dealings with the individual states.
With Miranda v. Arizona (1966), it mandated protection against self-incrimination – the “Miranda rights” that a plaintiff must be informed of. A Virginia state law banning interracial marriage was struck down as unconstitutional in Loving v. Virginia (1967), a major civil rights case on its own.
The Gideon and Miranda rulings were controversial, especially Miranda, but they do serve to protect the individual citizen from the awesome power of the State, very much in the spirit of the Bill of Rights and of the Magna Carta; behind the Loving case is an inspiring love story and, indeed, it is the subject of a recent motion-picture.
Warren’s legacy is complex. On the one hand, his Court courageously addressed pressing issues of civil rights and civil liberties, issues that the legislative and executive branches would not deal with. But by going where Congress feared to tread, the delicate balance of the separation of powers among the three branches of government has been altered, irreparably it appears.
The Warren Court (1953-1969) was followed by the Burger Court (1969-1986).
Without Earl Warren, the Court quickly reverted to making decisions that went against minorities. In San Antonio Independent School District v. Rodriguez (1973), the Court held in a 5-4 decision that inequities in school funding did not violate the Constitution; the ruling implied that discrimination against the poor is perfectly compatible with the U.S. Constitution and the right to an education is not a fundamental right. This decision was based on the fact that the right to an education does not appear in the Constitution echoing the logic of Marbury. Later some plaintiffs managed to side-step this ruling by appealing directly to state constitutions. We might add that all 5 concurring justices in this 5-4 ruling were appointed by a Republican president – a pattern that is all too common today; judicial activism fueled by political ideology is a dangerous force.
The following year in another 5-4 decision Milliken v. Bradley (1974), the Court further weakened Brown by overturning a circuit court’s ruling. With this ruling, the Court scratched a plan for school desegregation in the Detroit metropolitan area that involved separate school districts, thus preventing the integration of students from Detroit itself with those of adjacent suburbs like Grosse-Pointe. The progressive stalwarts Marshall, Douglas and Brennan were joined by Byron White in their dissent; the 5 concurring justices were all appointed by Republican presidents. The decision cemented into place the pattern of city schools with black students and surrounding suburban schools with white students.
The most controversial decision made by the Burger Court was Roe v. Wade (1973). This ruling invoked the Due Process Clause of the 14th Amendment and established a woman’s right to privacy as a fundamental right and declared that abortion could not be subject to state regulation until the third trimester of pregnancy. Critics, including Ruth Bader Ginsburg, have found fault with the substance of the decision and its being “about a doctor’s freedom to practice his profession as he thinks best…. It wasn’t woman-centered. It was physician-centered.” A fresh attempt to overturn Roe and subsequent refinements such as Planned Parenthood v. Casey (1992) is expected, given the current ideological makeup of the conservative majority on the Court and the current Court’s propensity to overturn even recent rulings.
Today to the overweening power of the Court has been added a political dimension in that in 5-4 decisions there continues to be, with rare exceptions, that direct correlation between a justice’s vote and the party of the president who appointed that justice. To that add the blatantly partisan political shenanigans we have seen on the part of the Senate Majority leader in dealing with Supreme Court nominations and add the litmus test provided by the conservative/libertarian Federalist Society. The plot thickens. Affaire à suivre.