Journalism and history have converged in diverse and interesting ways in the twentieth century, often at critical junctures in war and economic crisis. In this case, David G. Savage has turned five years of directly observing the United States Supreme Court into a critical, detailed chronicle of the court spanning the first five years of Chief Justice William H. Rehnquist’s leadership, from 1986 to 1991. As Savage was leaving his position as education reporter for the Los Angeles Times in 1986 to become its Washington bureau Supreme Court reporter, a window of opportunity was opening for President Ronald Reagan to implement his campaign promise to make the court more conservative. Unexpectedly, Chief Justice Warren E. Burger told Reagan in May that he planned to resign.
There is some irony in the fact that Richard Nixon had appointed Burger in 1969 to give the Supreme Court a more conservative bent after the Earl Warren era (1953-1969), which many conservatives regarded as much too liberal on civil rights and social issues in general. The Burger court, while strict on crime control, was just as progressive as Warren’s on social matters and wrote numerous decisions that disappointed conservatives, among them the controversial Roe v. Wade decision (1973) that recognized women’s constitutional right to abortions.
Reagan’s first opportunity to alter the Supreme Court came in 1981, when Justice Potter Stewart resigned after twenty-two years of service. The president, honoring another campaign pledge to appoint the first woman to the Supreme Court, chose Sandra Day O’Connor. O’Connor seemed also to fit the president’s model of a strict interpreter of the law. Easily confirmed, O’Connor did not alter the fundamental character of the court. She proved to be more flexible and independent than Reagan had anticipated. She had encountered sex discrimination early in her own career and had been helped by affirmative action. On the court, she displayed sympathy for such causes and otherwise sided with the progressive majority in some cases.
Warren Burger’s resignation had much more impact on the balance of forces within the Supreme Court. It led to the 1986 appointment of William H. Rehnquist as chief justice. Rehnquist was known for his keen intellect and a conservative orientation that had remained virtually unchanged since his days as a Supreme Court clerk in the early 1950’s. He had opposed civil rights legislation over the years and could be trusted, the administration believed, to resist further enlargement of affirmative action programs and to try to roll back liberal abortion laws. To fill Rehnquist’s vacated associate justice seat, the administration chose Antonin Scalia. Scalia was conservative, so that the net result of the 1986 changes was to alter the balance between the conservative and liberal forces within the court. In that light, the 1981 appointment of O’Connor took on additional meaning: The conservative members of the court were now close to controlling it. This metamorphosis and its judicial results are the focus of Savage’s hard-hitting analysis.
Savage’s analysis is set against the background of a briefly sketched history of the court from the 1870’s to the 1980’s. The century between the end of Reconstruction in 1877 and the Reagan Administration, the author argues, witnessed profound changes in the attitude of the Supreme Court on matters of civil rights and personal liberties. During Reconstruction and just beyond, the court reversed the integrationist acts of Radical Republican reformers almost as fast as Congress passed them. When Reconstruction ended, segregationist statutes and practices flooded the Deep South. The Supreme Court facilitated this reversal after 1883 by overturning the 1875 Civil Rights Act that had guaranteed open access to most public facilities by all races. African Americans were systematically disenfranchised and almost totally segregated, especially in the South. The Supreme Court decisions of this period generally sided with the view that the federal government did not have the power to tell people whom they could serve, employ, or allow to vote. Perhaps its most devastating, the Plessy v. Ferguson decision of 1896 endorsed “separate but equal” schools on the grounds that forced segregation did not violate black persons’ right to equal protection under the law.
Some liberalization of the Supreme Court occurred, Savage stresses, in the late 1930’s, as President Franklin D. Roosevelt’s New Deal liberalism altered the internal balance. Hugo Black was appointed in 1937, then Stanley Reed and Felix Frankfurter over the following two years. William O. Douglas was appointed in 1939. The entire Court was replaced under Roosevelt and Harry S. Truman. Earl Warren’s rise as chief justice was the prelude to an activist court involvement in reform. Black and Douglas served into the 1970’s, giving additional continuity to the reformist approach. In the fifty years between the 1930’s and the second Reagan term, Savage suggests, there was a prevailing consensus that the Supreme Court should interpret the Constitution in...
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