Once the Civil War had dispatched the federal/state power struggle, the Court turned its attention to the country’s latest concern: getting rich. Making America wealthy involved yet another wrestling match, this time between government and business. Now the justices leapt into the ring, headed straight for the big-money corner, and spent the remainder of the Gilded Age utilizing their now-considerable repertoire of judicial maneuvers to defend vested wealth against government interference. From Reconstruction through the Depression, they handed down a series of decisions that succeeded in blocking federal and state regulations, promoting the principle of laissez-faire, and generally helping the rich get richer. By the early twentieth century, the Court found itself pitted not only against government, but against what it saw as the menace of socialism (the growing labor movement) and the clamor of the masses (social reform).
Hammer v. Dagenhart was one of the more memorable illustrations of the spirit of the age. In it, the Court overturned a congressional act designed to limit child labor. The act prohibited interstate or foreign commerce of commodities produced in factories employing children under fourteen and in mines employing children under sixteen. (If the legislation seems a bit roundabout, it’s because the Court had already ruled it unconstitutional for Congress to interfere in the manufacture of goods in any way.) The suit, by the way, was brought by Dagenhart, who had two sons working in a North Carolina cotton mill and who was determined to keep them there. Describing himself as “a man of small means” with a large family to feed, Dagenhart claimed that he needed the boys’ pay “for their comfortable support and maintenance.” The Court’s unshakable conservatism and consistent success in such cases blocked social legislation for years and finally led to Franklin Roosevelt’s notorious efforts to “pack the court” with justices friendly to the New Deal. The Court did eventually bow to public pressure for reform, of course, so feel free to hold it responsible (along with the Democrats) for the development of the “welfare state.” SCHENCK v. UNITED STATES (1919)
The case that set the bottom line on freedom of speech and, in so doing, gave Justice Oliver Wendell Holmes the opportunity to make one of the Supreme Court’s most historic statements:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing panic…. The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree…. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as being protected by any constitutional right.
The principle of “clear and present danger” became one of the rare justifications for restraining freedom of speech (until the 1990s, that is, when political correctness seemed like reason enough to some folks). In the case at hand, it was used to deny the petition of John Schenck, a young man arrested for distributing pamphlets arguing against the legality of the draft. In the Thirties and Forties, it became the basis for prosecuting many people whom the government considered politically subversive. BROWN v. BOARD OF EDUCATION OF TOPEKA (1954)
The decision that, theoretically at least, ended school segregation, although Little Rock was still three years down the road. Brown, which was the umbrella for five separate segregation cases from five different states, was the petition brought on behalf of eight-year-old Linda Brown, whose father was tired of watching her take the school bus to a blacks-only Topeka school every day when there was a whites-only school within spitting distance—so to speak—of their home. The Court’s decision overturned the principle of “separate but equal” facilities it had established with Plessy v. Ferguson back in 1896. Separate but equal was the doctrine that had, for sixty years, allowed segregationists to insist that they weren’t implying that Negroes were inferior just because they didn’t want to eat, wash up, or share a bus seat with one. Only slightly less controversial than the Scopes trial, Brown attracted friend-of-the-court briefs from everyone from the American Jewish Congress to the AFL-CIO, but the main characters to remember are:
Thurgood Marshall, the NAACP lawyer who argued for the petitioners and who later became the Supreme Court’s first black justice.
Dr. Kenneth B. Clark, the New York psychologist who made the courts safe for psychosociology by introducing as evidence his now-famous “dolls experiment.” Clark had shown a group of black children two dolls, one black and one white, asking them to choose the doll they found prettiest and would most like to play with, and the doll they thought looked “bad.” The children’s overwhelming preference for the white doll was seen as proof that segregation was psychologically damaging to black children.
Chief Justice Earl Warren, who proved his talents as an orchestrator by herding eight feisty justices and nine more or less dissimilar viewpoints together to form one unanimous opinion; to wit, that “separate educational facilities are inherently unequal.”
President Dwight D. Eisenhower, who was so unsympathetic to the cause of desegregation that the Court, knowing it couldn’t count on him to enforce its decision, put off elucidating the how-tos of the opinion for a whole year. At that point, in Brown II, it made the cautious, and ultimately disastrous, declaration that the Southern school districts must undertake desegregation measures “with all deliberate speed,” a phrase which many Southern school districts chose to interpret as sometime in the afterlife. BAKER v. CARR (1962)
All about reapportionment, but don’t go away, we won’t bore you with the details (unless of course, you’d like to know that Baker was the disgruntled voter, Carr the election official, and the setting was Tennessee). Besides, Earl Warren claimed that this was the most important decision of his not unremarkable tenure as chief justice. What you need to grasp: That the country’s demographics had changed over the years but its election districts hadn’t, so that small towns and rural areas were consistently overrepresented while cities were underrepresented. This put power firmly in the hands of minority and special-interest groups, who were determined to keep it there. The Court had long refused to get involved in the “political thicket” of voting rights, but with Baker v. Carr, it plunged in and decided that unequal election districts were discriminatory and violated the Fourteenth Amendment. This, and the armload of reapportionment cases that followed, not only gave us the phrase “one man, one vote” (or, as more progressive historians would have it, “one person, one vote”), it also shifted the country’s center of gravity from the hinterlands to the cities. Paradoxically, the decision helped open the can of worms that was the Voting Rights Act of 1965, which, with its 1982 revision and various related court rulings, legitimized gerrymanders created for the specific purpose of giving African Americans a chance at political power in states notorious for racial discrimination. In 1993, however, a much more conservative Supreme Court suddenly got fed up and declared unconstitutional a particularly eye-catching racial gerrymander in North Carolina, a snakelike critter 160 miles long and, in some spots, no wider than the two-lane highway running through it. MIRANDA v. ARIZONA (1966)