“The Supreme Court’s History as a Regressive Institution” – The Benjamin N. Cardozo Lecture
By Hon. Jed S. Rakoff
Senior Judge, United States District Court, Southern District of New York
The following remarks were delivered at the New York City Bar Association on October 23, 2024. A video of the program, including a welcome by City Bar President Muhammad U. Faridi and an introduction of Judge Rakoff by Judge Raymond Lohier of the U.S. Court of Appeals for the Second Circuit, is here. More information on the City Bar’s Benjamin N. Cardozo Lecture Series is here.
I am hugely indebted to Judge Lohier for his very kind remarks. However, he neglected to tell you that, in honor of Halloween, his remarks were actually ghost-written by my late mother. My wife Ann, who is very much alive and here in person, will now come forward and give the rebuttal!
I am also immensely honored to have been asked by the New York City Bar Association to give this year’s Benjamin Cardozo lecture. By any measure, Cardozo ranks as one of greatest judges in American history. His transformative effect on state common law is evident to every first year law student, and even when, with universal acclaim, he was appointed to the U.S. Supreme Court, he never ceased trying to bring to the interpretation of the U.S. Constitution the same flexibility and focus on the future that were the hallmarks of his judicial philosophy. As he stated in his justly famous book The Nature of the Judicial Process: “A constitution states, or ought to state, not rules for the passing hour, but principles for an expanding future.”
But this, obviously, is not the philosophy of the current Supreme Court, nor, I suggest the animating philosophy of the U.S. Supreme Court through most of its history. Rather, I suggest, the U.S. Supreme Court has usually tended to look backward and to use the Constitution as a tool to narrow or override progressive legislation and to deny protection to unpopular groups and individuals.
I do not come to this conclusion lightly. It was the wonders of the Warren Court that first inspired me to be a lawyer. But, as I will shortly suggest, the Warren Court was something of a fluke and not typical of how the institution we call the Supreme Court has performed through much of its history, let alone today.
Let’s look at that history. The Supreme Court held its very first session on February 1, 1790 — a few months, incidentally, after the first session of what is now the federal district court for the Southern District of New York. (Which gives a whole new meaning to the famous question: “who’s on first?”) Anyway, in its first decades, the Supreme Court, under the leadership of the great Chief Justice John Marshall, was mainly intent on establishing a broad construction of the powers of the new federal government and the new federal judiciary (and what could be better than that?).
True, the Court in these early years was also inclined to further the shipping and commercial interests represented by the Federalist Party led by John Adams, as opposed to the more agrarian interests represented by the so-called Democratic-Republican party led by Thomas Jefferson. Eventually, however, with the election of Democratic-Republicans ranging from Jefferson to Jackson, the composition of the Court, and its economic biases, somewhat shifted.
But what a majority of these early justices of all stripes agreed about was that no recognition should be given to the rights of African Americans or Native Americans, because it was implicit in the Constitution that they were inferior at best. Regarding Native Americans, for example, the fact that the new federal government had signed formal solemn peace treaties with various Indian nations was of no moment, since Native Americans were, in the words of the Declaration of Independence, “merciless Indian Savages.”
Consider, in this regard, the case of Cherokee Nation v. State of Georgia, decided by the Supreme Court in 1831. Although members of the Cherokee Nation had lived in the territory that became the State of Georgia for literally thousands of years, ongoing pressure from the white inhabitants of Georgia to remove the Cherokees to west of the Mississippi substantially increased after gold was discovered on Cherokee land in 1828. However, back in 1791, the new U.S. federal government had signed a treaty with the Cherokee Nation, reserving certain lands in Georgia to the exclusive occupation of the Cherokees. So, when Georgia, in reaction to the gold rush, began passing laws designed to assert state authority over the Cherokees, strip them of their land rights, and otherwise effectively force their removal, the Cherokee Nation appealed to the Supreme Court to void these laws.
In response, Chief Justice Marshall, writing for the Court, began his opinion by saying that the initial question was one of “jurisdiction,” or, as we might say today, whether the Cherokee Nation had standing to sue the State of Georgia in federal court. The Cherokee Nation principally relied on the portion of Article III, Section 2, clause 1 of the Constitution that provides that federal judicial power extends, among other things, to controversies “between a State …and foreign states.” Marshall conceded that the Cherokees “have been uniformly treated as a state from settlement of our country. The numerous treaties made with them by the Unites States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements,” and so forth. But, he added, “A question of much more difficulty remains. Do the Cherokees constitute a foreign state in the sense of the constitution?” In particular, “though the Indians are acknowledged to have an unquestionable right … to the lands they occupy … can [they] be denominated foreign nations” who can bring suit in federal court to enforce that right?
While this was an interesting question, the answer that Marshall gave was nothing short of astonishing. Writing only decades after the Thirteen Colonies’ war for independence from England, Marshall declared in effect that the Indian Nations were colonies subject to the rule and whim of the President of the United States. More precisely, here’s what he said about the status of the Indian Nations: “Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief from their wants; and address the president as their great father.” And so, concludes Marshall, the Court lacks jurisdiction, because Indians are really just wards of the President and must look to him, if anyone, for enforcement of their treaty rights.
Needless to say, the Court was fully aware that the President at this time was Andrew Jackson, the fabled Indian fighter, who would be the last person in the world to try to help his Indian “wards.”
It should be noted that a year later, in 1832, in the case of Worcester v. State of Georgia, the Court, without overruling the Cherokee Nation decision, effectively held that trying a white Christian missionary in a Georgia state court for state crimes he allegedly committed on Cherokee lands violated the provisions of the federal treaties with the Cherokees that gave federal courts exclusive jurisdiction over such cases. Only a cynic, like me, would dare to suggest that the only real difference between these two cases so far as jurisdiction or standing is concerned is that the plaintiff in the Worcester case was a white non-Indian male. But the broader point is that, as a result of the Cherokee Nation decision, Georgia felt free to continue to strip the Cherokees of their rights. With help from both Congress and President Jackson, this soon led to the Cherokees forced removal to Oklahoma over the so-called “trail of tears,” in which thousands died.
Continuing with the history of the Court in the pre-Civil-War era, when the Supreme Court wasn’t busy finding clever ways to deny to Native Americans what Marshall otherwise called their “unquestionable” rights, the Court was even more busy denying to African Americans their every attempt to escape from slavery. The most prominent example of this is, of course, the 1857 case of Dred Scott v. Sandford, and while this case is probably more familiar to most of you than the Cherokee Nation case, it may be useful to briefly revisit its facts and holdings.
Dred Scott was born a slave in Virginia, but was eventually taken to Missouri, where he was sold to an army surgeon named John Emerson. As an army officer, Emerson frequently moved from one army post to another, taking Scott with him. As a result, Scott lived for four years in the free state of Illinois and the free territory of Wisconsin, where he met and married his wife, Harriet Robinson, who was also a slave. Both Illinois and Wisconsin had laws that said that slave holders gave up their right to own slaves if the owners stayed there for extended periods. And so, even though Scott and his wife were eventually brought by their owners back to Missouri, they sued for their freedom. That suit, initially brought in Missouri state courts, was ultimately dismissed without prejudice to refiling in another jurisdiction, and the case was then re-filed in federal court and eventually landed in the U.S. Supreme Court.
There, the Supreme Court, in a 7-2 decision authored by Chief Justice Roger Taney, held that any person of African ancestry could never be a citizen of the United States and therefore lacked standing to sue. Specifically, the Court held that at the time the Constitution was adopted, the word “citizen” did not include people of African descent, whether free or slave, because “they were at that time considered as a subordinate and inferior class of being who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority and had no rights or privileges.” It has been suggested that this statement was not even good etymology as to what the word “citizen” meant in 1787. But in any case, the Court, having concluded that the meaning of “citizen” in 1787 did not remotely include African Americans, determined that it was strictly bound by that original meaning.
For those of you who might believe the doctrine of “originalism” originated with recent Justices like Scalia and Thomas, or perhaps with the near-Justice Robert Bork, Dred Scott is actually an example of “originalism” at work, with all its shortcomings, and illustrates an approach diametrically opposite to that expressed by Justice Cardozo as quoted at the start of this lecture. But, for good measure, the Court in Dred Scott went on to hold that, even if Mr. Scott could somehow be classified as a citizen, he would still lose on the merits, because the so-called Missouri Compromise of 1820, which divided what were then federal territories into free and slave territories, including the free areas where Scott subsequently came to live, was itself unconstitutional because it deprived certain slave-owners of their “property,” namely, slaves, without due process of law.
As previously mentioned, the holding in Cherokee Nation eventually helped precipitate the “trail of tears”. In the view of many historians, the decision in Dred Scott, by further inflaming public attitudes for and against slavery, directly helped precipitate the Civil War.
As a result of the Civil War, Dred Scott was ostensibly overruled by the 13th and 14th Amendments to the Constitution. For example, the very first sentence of the 14th Amendment, enacted in 1868, provides that “all persons born or naturalized in the United States … are citizens of the United States.” The same Amendment then goes on to provide that “No State 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.” So it would seem to follow that renewed attempts by the former Confederate states to subject Black people to subordination would be unconstitutional and promptly struck down by the Supreme Court, right? Wrong.
Indeed, the cases in which the Supreme Court of the post-Civil-War period made mince-meat of the 14th Amendment are so numerous that I only have time here to mention a few. For example, in the sometimes overlooked 1875 case of United States v. Cruikshank, the Court reversed the federal convictions of the murderers of more than 100 freed slaves who had been protesting a controversial Louisiana gubernatorial election. The Court held, first, that the “privileges and immunities of citizens of the United States” guaranteed by the 14th amendment applied only to federal rights narrowly construed, so that even a murderous interference with the exercise of free speech and free assembly did not violate the 14th amendment if it occurred in connection with a state election. And, second, the Court held that in any event the 14th amendment only applied to actions taken by state actors acting in state-authorized capacities, as opposed to organized private groups devoted to slavery that the former Confederate states allowed to continue to flourish, like the Ku Klux Klan.
The latter holding was reaffirmed and broadened still further in the ironically named “Civil Rights Cases” of 1883, in which the Court held in a group of combined cases that the Civil Rights Act of 1875, which provided for equal access of all persons to accommodations, public conveyances and the like, was unconstitutional because Congress had no power under the 14th Amendment to legislate the conduct of private commercial parties like innkeepers or stagecoach companies.
But what if state action was clearly involved, as in the case of a Louisiana law requiring that the races be separated while riding on trains? In 1896, the Court, in Plessy v. Ferguson, upheld the “separate but equal” fiction that was at the heart of Jim Crow laws throughout the South. Rejecting all constitutional claims, the Court, with only one dissenting justice, held that “the enforced separation of the races … neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws.”
And what about the application of the 14th Amendment to victims of discrimination other than African-Americans? In several post-Civil-War cases, the Supreme Court made clear that the 14th Amendment, despite its broad language, applied only when a state government’s deprivation of federal rights was motivated by intentional discrimination against African-Americans. And going even further, the Supreme Court, in the 1875 case of Minor v. Happpersett, unanimously held that the 14th Amendment, in conferring citizenship on all persons born in the United States, did not thereby confer on women the right to vote, even in federal elections. In an analysis that somehow managed to transfer to the 14th amendment’s reference to the rights of citizens the meaning supposedly given to the term “citizen” by the original framers of the Constitution, the Court held that when the Constitution was adopted, the rights of “citizens” did not include the right of women to vote, and that nothing in the adoption of the 14th amendment indicated that Congress was making any change in the meaning of the rights of citizens beyond simply making those rights available to African-American males.
In short, despite that modest little event known as the Civil War and the huge changes in American law and society that followed from its outcome, the Supreme Court of the United States, in a series of cases in the latter half of the nineteenth century, managed to turn the 14th Amendment into a nullity.
But let’s move on to the first half of the 20th century. Having reduced the rights of former slaves to the subordinations of Jim Crow, the Court now turned its attention to impeding any legislative attempts to deal with the increasing horrors brought about by unchecked capitalism. The same justices who believed that the 14th Amendment’s protection of the rights of citizens was severely limited in its application to discrimination against Blacks, women, and others, felt strongly that among the privileges the 14th Amendment did broadly protect was a citizen’s supposed “freedom of contract,” which no state could abridge. So the Court went on a spree of invalidating state laws designed to protect workers against inhumane working conditions. And it did this in so many cases that, once again, I have time here only to mention a few instances of this onslaught.
One early example, coming in 1905, was Lochner v. New York, in which the Court overturned a New York law prohibiting bakery employees from working more than 60 hours a week, on the ground that “the statute necessarily interferes with the right of contract between the employer and employees … [which is] part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” Going even further, the Court, in the 1923 case of Adkins v. Children’s Hospital, struck down a District of Columbia law setting minimum wages for women and children, on the ground that “freedom of contract,” though nowhere expressly mentioned in the Constitution, was inherent not only in the 14th Amendment but also in the due process clause of the 5th Amendment. The D.C. law was therefore, said the Court, “an arbitrary interference with the liberty of contract which no government can legally justify in a free land.” (Sigh.)
If further followed from this exalted view of “freedom of contract” that labor unions were a menace. As early as 1908, the Court, in Loewe v. Lawlor, held unanimously that a union’s secondary boycott of a nonunion hat company in Connecticut violated the Sherman Antitrust Act. That same year, in Adair v. United States, the Court struck down a federal law that prohibited railroad companies from requiring employees to promise, as a condition of their employment, that they would never join or seek to join a union.
Again, these are just modest examples. Anyone who knows anything about the history of unions in America knows that the federal courts, led by the Supreme Court, were a major tool in the efforts to break unions in the decades prior to the passage of the labor laws of the New Deal.
Speaking of which, in the 1930’s the Court repeatedly struck down major components of FDR’s New Deal that were designed to alleviate the extreme deprivations of the Great Depression. Indeed, some of these decisions declaring New Deal legislation unconstitutional were unanimous.
To some degree the Court’s attitude toward such legislation changed after FDR threatened to “pack” the Court, and some New Deal legislation then came to be upheld, though often barely. But it was only after FDR — by serving the four terms that would now be unconstitutional — was able to replace a majority of the prior Supreme Court justices with justices more favorable to the New Deal, that the Court began approving such legislation by substantial majorities. And even then, the Court remained staunchly conservative in many other areas and was still capable of such awful decisions as Korematsu v. United States, where in 1944, at the very time everyone was becoming fully aware of Hitler’s concentration camps, the Court effectively approved the forced internment of American citizens of Japanese descent. Once again, to be an American “citizen” was, in the Court’s view, a very modest right indeed, at least for any citizen who belonged to a feared or hated group.
But, as we move in our account to the post-World-War-II period, I suspect all of you have been saying, “What about the Warren Court?” There is no doubt that the Warren Court took major strides to correct the Court’s abuses of the past, most notably in its 1954 decision in Brown v. Board of Education, and its progeny. And despite much public opposition, the Warren Court bravely undertook to curtail police abuse and create protections for even such despised citizens as persons accused of crimes. See, for example, the 1963 decision in Gideon v. Wainwright, and the 1964 decision in Miranda v. Arizona.
But in terms of the overall history of the Court, it is perhaps only fair to point out that the Warren Court was something of an accident. When Eisenhower appointed Earl Warren and William Brennan to the Court, he believed they were reliable conservatives. Indeed, Warren, as Governor of California, had supported the internment of Japanese Americans, and Brennan, though a Democrat, had as a New Jersey state court judge issued conservative decisions on numerous issues. That Warren and Brennan would become not only judicially progressive but also highly influential in changing the direction of the Court was totally unforeseen and something of a fluke.
Further still, the roles of Warren and Brennan in moving the Court in a more liberal direction made conservatives determined to never let it happen again. And to an extraordinary extent they have succeeded. Indeed, long before the recent decisions of what I will call the “Trump Court,” the Burger Court, the Rehnquist Court, and the pre-Trump Roberts Court went far toward whittling away many of the progressive rulings of the Warren Court, most especially in the areas of criminal law and procedure. For example, as early as 1983, the Court, in the case of City of Los Angeles v. Lyons, held that Mr. Lyons lacked standing to challenge the policy and practice of the Los Angeles police to apply life-threatening choke holds to suspects who posed no threat of violence. The Court said that Lyons, who had been choked almost to death by the police, had no standing to seek to enjoin the policy and practice because he had not shown a sufficiently substantial likelihood that he would be similarly choked in the future. On this rationale, no victim of this putatively unconstitutional practice could ever seek to have it terminated. It is hardly surprising that, following this decision, numerous people have died from being choked to death by the police, the best-known example being George Floyd in 2020.
More generally, even before the appointments made during the Trump presidency, the Court returned to its traditional conservative stance on a broad range of issues, as illustrated, for example, by its 2010 decision in Citizens United v. Federal Election Commission, in which the Court held that corporations were “people” entitled to full First Amendment protections. Even more striking was the Court’s 2008 decision in District of Columbia v. Heller, in which the Court employed supposed originalism to greatly narrow the scope of gun regulation.
As for the current Court, anyone who thinks it does not further illustrate my thesis about the Court’s regressive tendencies must not have read Dobbs v. Jackson Women’s Health Organization or New York State Rifle & Pistol Association v. Bruen.
In short, I submit that the evidence overwhelmingly proves that the U.S. Supreme Court has been for most of its history a regressive, not to say reactionary institution, and probably the most reliably conservative branch of our government. Why this is so is a more difficult question, but let me throw out some suggestions.
Partly it derives from the political nature of the Court. Unlike, for example, the U.K., where the members of their Supreme Court are nominated by an independent commission, the justices of our Supreme Court are nominated by the President, who, inevitably, picks people of kindred ideology to his own. And, in my view, it totally ignores reality to suppose that our Supreme Court justices, whether liberal or conservative, do not make their decisions in controversial cases primarily on the basis of their personal ideologies, only afterwards seeking the camouflage of ostensibly neutral rationales. But, for reasons I will get to shortly, liberal Presidents are usually content to nominate middle-of-the-roaders unlikely to push hard to alter the Court’s traditionally conservative stance, whereas conservative Presidents are more likely to nominate aggressively conservative justices.
This in turn is party due to the realization by conservatives that in those times when they are outnumbered at the polls, they can still put a brake on liberal legislation by focusing on the Court. This has been true since the Court’s earliest days. After Jefferson’s Democratic-Republicans won the federal election of 1800, but before they took office, the outgoing Federalist Congress filled as many judicial vacancies as they could with reliable Federalists. This led Jefferson to write to his friend John Dickinson that the Federalists “have retired to the judiciary as a stronghold. There the remains of Federalism are to be preserved and fed from the treasury, and from that battery all the works of Republicanism are to be beaten down and erased.”
Jefferson’s rhetoric may have been exaggerated, but the point remains that conservatives have placed more emphasis than progressives on putting their allies on the court. Progressives, as one would expect, tend to focus on gaining control of Congress and the Presidency, in order to enact new legislation favorable to their reforms. Conservatives, while clearly also attuned to gaining control of Congress and the Presidency, realize that a conservative Court is inherently suspicious of “reforms” and that it provides a natural backstop if all else fails.
In still broader perspective, some of the conservatism of the Supreme Court may relate to the somewhat backward-looking approaches common to lawyers and judges trained in the Anglo-American system of justice. An emphasis on past precedent was originally a function of the fact that most early English law was judge-made law, and an emphasis on precedent was therefore crucial to providing even a modicum of certainty. Nevertheless even today virtually the first thing any judge does when a new case is presented to her or him is to look at the prior precedents, even if decided decades before. If she is a lower court judge, and the prior precedents appear on point, that is pretty much the end of the analysis and the case will be governed accordingly. If she is a higher court judge, she has more freedom to depart from past precedent, but she usually seeks to justify such departures by reference to even earlier conceits, such as the “original” meaning of the words of a statute. Very few judges adopt Cardozo’s approach of adjusting the law to current or foreseeably future needs, and this is especially so in federal courts, where so much of the law is statutory and thus less inherently amenable to the kind of “restatement” that the common law permits. Hence the appeal of even such incredibly backward-looking doctrines as originalism.
But whatever may be the factors leading to the Supreme Court’s regressive tendencies, of the fact that the Court has for so much of its history exhibited such tendencies there can be little doubt. If, despite this, the American Republic has slowly but surely moved in the direction of greater equality, inclusiveness, and freedom, such progress, with only a few major exceptions, has occurred despite, and not because, of the rulings of the Supreme Court. Yes, ultimately the Court has come around to accepting much progress, although often only after decades of trying to impede it. But compared to the other branches of government, it has usually been the last to come on board. I see little likelihood that this will change in the foreseeable future.
I am sorry to have offered here so grim a perspective. As I said at the outset, it is with great reluctance that I have come to the conclusions that I have presented here tonight. But as George Santayana famously said, “those who do not learn from the past are doomed to repeat it.”
I greatly appreciate your kindness in listening to my views.
Thank you.
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