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The Battle for the Supreme Court


Overruled: The Long War for Control of the U.S. Supreme Court by Damon Root (Palgrave Macmillan, 2014), 274 pages.

Every case that comes before the U.S. Supreme Court has its unique factual setting and contentious legal issues, but in a large percentage of them, the decision ultimately comes down to this: Should the Court defer to the legislative and executive branches and thereby allow democracy to work, or should it overrule what they have done if their handiwork violates the Constitution?

With all the furor over facts and holdings in individual cases, people are apt to miss the bigger picture — the different judicial philosophies that shape judges’ views.

The clash of those philosophies is the subject of an excellent book by Damon Root, Overruled: The Long War for Control of the U.S. Supreme Court. Root, a senior editor at Reason, explores the great divide between justices who believe that they should usually defer to the presumed wisdom of the politicians who enacted a law, and justices who instead believe they should skeptically examine challenged laws, giving legislators no deference, and invalidating laws that unjustifiably infringe upon people’s liberty.

Justices in the former camp usually uphold laws and regulations because they think that the majority is entitled to rule. Those in the latter camp are not so sanguine about politics and vote to overturn laws and regulations when they see them as conflicting with individual rights.

In the book, Root gives us an easily read and understood history of that battle going back to the years following the Civil War. He covers a lot of constitutional cases and the people involved in them.

Many of the cases involve the Fourteenth Amendment — whether a state law does or doesn’t run afoul of it. That amendment’s groundwork was laid in the 1866 Civil Rights Act, whose chief architect, Rep. John Bingham, stated that the law was meant to protect Americans’ “right to work in an honest calling … and to be secure in the fruits of [their] toil.” In order to secure those rights against the attitudes of many politicians, in 1868 Bingham pressed for an amendment protecting them.

Only a few years after the ratification of the Fourteenth Amendment, a case arose that tested its vitality. The Louisiana legislature had enacted a law that conferred a 25-year monopoly on a private corporation in a blatantly corrupt special-interest deal. All rivals were simply legislated out of business. Did that law violate any part of the Fourteenth Amendment? Did it deprive citizens of their privileges or immunities or of their liberty or property without due process of law?

In one of the century’s most consequential of Supreme Court decisions, by 5 to 4, the majority said that the law was constitutional. In what are known as The Slaughterhouse Cases, Justice Samuel Miller found no violation of the Fourteenth Amendment by giving an extremely narrow reading of the law that confined the Amendment’s reach to only a tiny number of “national” rights. Setting up an obvious strawman, Miller wrote that a more expansive reading “would make the Court a perpetual censor on all legislation of the states.”

Miller’s opinion exemplifies the deferential philosophy at work. Never strike a law down if any possible reading of the Constitution could “save” it.


Leading the Slaughterhouse dissenters was Justice Stephen Field, whom Root regards as the progenitor of the Court’s engaged, libertarian wing. Field responded to the majority that Louisiana’s law attacked “the right of free labor,” which he saw as one of “man’s most sacred” and one that the Fourteenth Amendment was clearly intended to protect.

That was the beginning of a lengthy battle between the two factions. By the time of Field’s retirement in 1897, his side was largely in control, and would remain so well into the 20th century.

The first big case of the new century that clearly pitted the two factions was Lochner v. New York. New York’s legislature had enacted a law regulating many aspects of the baking business and it included a limit on the number of hours a baker could work. That part of the law was challenged as a violation of the Fourteenth Amendment and, 5-4, the Supreme Court agreed. Justice Rufus Peckham’s majority opinion held that the right to decide how much time to work was within the liberty protected by the amendment.

That holding infuriated Justice Oliver Wendell Holmes Jr., who had been appointed by Theodore Roosevelt in 1902. In a famous dissent, Holmes fumed that it was none of the Court’s business to get in the way of what “the people” wanted, whether wise or not. He insisted that the Court should defer to the legislature. As Root writes, “He wanted to paint the majority as a bunch of wild-eyed libertarians hell-bent on subverting democracy.”

Field’s philosophy prevailed in Lochner, but generations of law students have heard that the decision was egregiously wrong because judges shouldn’t “impose their values.” In reply, the Fieldians would say, “The justices didn’t impose anything, but merely kept the state legislature from imposing its ideas on a matter that the Constitution leaves to individual liberty.”

Holmes and his “defer to the legislature” allies were mostly in the minority for the next few decades. A particularly interesting case Root discusses is Buchanan v. Warley, a 1917 case where the issue was the constitutionality of a segregationist housing law enacted in Louisville. In Buchanan, we meet the remarkable lawyer Moorfield Storey. Root rightly says of him, “If today’s libertarian legal movement had a patron saint, Moorfield Storey would be it.”

Storey was a steadfast opponent of statism in all its forms — imperialism, militarism, and abuses of executive and legislative power. Although white, Storey served as the first president of the National Association for the Advancement of Colored People. He brought and argued the case against Louisville’s segregation ordinance.

Most progressives, however, had no problem with segregation, which, after all, was just an instance of government planning designed to help “society” function more smoothly. Why second-guess politicians who think they know what housing patterns are best? And progressives certainly had no sympathy for the property rights and liberty arguments advanced by Storey.

The Supreme Court sided with Storey and declared the law unconstitutional. Justice William R. Day’s opinion held that under the Fourteenth Amendment, people of all races are entitled to acquire property without state laws discriminating against them.

But what did Holmes think? The decision is listed as unanimous, but Holmes actually wrote a dissent arguing that the Court should defer to the political will. He decided against filing it, though. Root comments, “Perhaps even Holmes had to flinch at the idea of casting the lone vote in favor of Jim Crow.”

Unfortunately, the period of largely libertarian jurisprudence was terminated by the statist thinking ushered in by the Great Depression.

During Franklin Roosevelt’s first term, Congress obligingly passed a host of bills supposedly meant to alleviate the economic misery gripping the nation, but the legislation trampled all over individual rights the Constitution protected, as well as far exceeded the powers of Congress under Article I. The Court, in a series of decisions, struck down laws such as the National Industrial Recovery Act. Despite the cries that the laws were “essential,” a majority of the Court refused to bow in deference to Congress and the president.

That led to Roosevelt’s infamous “Court packing plan” in late 1936. The threat was enough to swing Chief Justice Charles Evans Hughes and Justice Owen Roberts his way in the crucial 1937 Jones & Laughlin Steel case, where the Court, ignoring all precedents, upheld the National Labor Relations Act.

Root says of that, “All told, it was one of the most striking turnarounds in legal history. In less than a decade, the Supreme Court had not only rendered liberty of contract a dead letter, it had embraced a sweeping form of judicial deference toward state and federal legislation while also greatly expanding congressional power….”


Judicial deference held sway for the rest of the 1930s, 1940s, and 1950s. The Court was so uninterested in cases involving property rights and economic liberty that it would uphold the most blatantly authoritarian, anti-competitive statutes so long as there might have been any “rational basis” for politicians to have enacted them. That is to say, such laws always survived and the Court’s message (as in, for example, Williamson v. Lee Optical) was: “Don’t waste your time litigating these issues because we’re not listening.”

Ah, but what about one of the most famous cases of the century, Brown v. Board of Education? The NAACP Legal Defense Fund mounted a challenge to state school segregation, hoping that the Court would breathe some life back into the Fourteenth Amendment and declare school segregation unconstitutional.

All thoughts of deference to state officials were shelved as the Court unanimously ruled in favor of the NAACP. Root notes, however, that one of the most esteemed liberal jurists of the day, Judge Learned Hand of the Second Circuit, denounced Brown in a 1958 speech, saying that the Court should not have substituted its values for those of the Kansas politicians.

Hand’s point was that the deferential justices dropped their philosophy when it came to a dispute they cared about. We would see that again in the 1963 case Griswold v. Connecticut, where the legality of Connecticut’s law against the sale of contraceptives was at issue. Justice William O. Douglas wrote the majority opinion striking down the law, an opinion famous for its verbal arabesques about how a constitutional right of privacy is formed from “emanations” and “penumbras” of various parts of the Bill of Rights.

That decision certainly showed no deference to the state politicians who enacted the law. But, as Root shows, there is something strange about the opinion. Although Douglas tried hard to make sure that nobody thought he was resurrecting Lochner thinking, the precedents he cited were all based on Lochner. Again, a justice who was ostensibly committed to letting the people rule went Justice Field’s way when “the people” had done something he disagreed with, something that deprived individuals of freedom he thought they should have.

Root ably covers the rise of the libertarian legal movement beginning in the 1980s, with the Institute for Justice and the Cato Institute leading the way. Their idea was to combat the widespread disregard for economic liberties and the tendency of courts to blithely defer to the supposed wisdom of the political branches. The formula they came up with: find cases with “sympathetic clients, outrageous facts, and evil villains.”

That approach has led to some signal victories over ugly state and local regulations that suppress competition to aid politically powerful interest groups. It has also led to some big wins at the top, notably the Supreme Court’s ruling in District of Columbia v. Heller, which held that the Second Amendment protects individuals in their right to keep and bear arms.

The libertarians have been encouraging what Institute for Justice attorney Clark Neily calls “judicial engagement,” which is to say, judging that looks beneath the bland assurances that laws and regulations are “in the public interest” to search for interest-group favoritism or mere animosity.

They’ve won some big cases, but lost others where judicial deference prevailed. One of those was the eminent domain battle in Kelo v. New London. Writing for the majority, Justice John Paul Stevens insisted that the Court had to defer to legislative wisdom and allow local officials to go ahead with their redevelopment plan. (Later, the whole plan fell through and the area today is a rubble-filled vacant lot.)

Deference also carried the day in the first Obamacare case, NFIB v. Sebelius. Chief Justice John Roberts followed Holmes’s admonition that it is the “duty” of judges to uphold a law if at all possible and regurgitated his contention that it’s none of the Court’s business whether a law is good or bad. Alas, that view is very much alive and kicking.

The “long war” for the Court will certainly go on. Politicians and interest groups who like the status quo with its vast, largely unchecked governmental power will keep up the pressure for judges who can be expected to defer to that power. People who believe that judges should be awake to the violations of constitutional rights that the political process so often leads to, will try to put such jurists on the bench. This conflict is central to the overarching battle between the philosophies of libertarianism and statism and the fact that the Holmesians on the Court now often lose is encouraging.

This article was originally published in the April 2016 edition of Future of Freedom.

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    George C. Leef is the research director of the Martin Center for Academic Renewal in Raleigh, North Carolina. He was previously the president of Patrick Henry Associates, East Lansing, Michigan, an adjunct professor of law and economics, Northwood University, and a scholar with the Mackinac Center for Public Policy.