THE increasingly conservative bent of the United States Supreme
Court is shifting the battleground on civil rights issues back to
state courts and legislatures.
The movement of power from Washington back to the states is all
the more ironic because it has been launched by the same institution
that radically altered state-federal relations in the 1930s under
President Franklin D. Roosevelt's New Deal.
Back then, many of the issues were economic and commercial: Could
the federal government intervene in the national economy to set
agricultural prices, regulate working conditions for coal miners,
set the price of coal, and set up a retirement system for railroad
A conservative-dominated Court said no, throwing a monkey wrench
into many of FDR's economic-recovery programs.
The conservative Court also refused to impose many protections of
the federal Constitution on state courts and constitutions. It said
the 14th Amendment, which guarantees the rights of citizenship and
due process, did not apply to the Texas Democratic Party, which
excluded blacks from membership so they could not vote in the party
primary. In a one-party state like Texas, winning the primary was
tantamount to winning the election.
Even so, the Court began to extend many constitutional
protections even before it turned liberal with the appointment of
Justice Hugo Black in 1937. It extended defendants' rights to an
attorney and to a fair trial by a fair jury in the famous Scottsboro
cases to state trials as well as federal ones. It refused to allow
Minnesota to penalize newspapers for criticizing public officials.
This tendency received a significant boost with Justice Black's
appointment. In short order, the Court upheld many of the same New
Deal laws it had only recently struck down. It expanded the federal
government's authority to regulate the national economy under the
Constitution's interstate-commerce clause and began to define
personal rights as more important than property rights.
The trend reached its zenith under Chief Justice Earl Warren, who
served from 1953 to 1969. The Court upheld the federal government's
power to intervene directly against state laws discriminating
against blacks; greatly expanded privacy rights, including the right
to use contraceptives; broadened the rights of criminal defendants
in the Miranda ruling; and engineered a transfer of power in
statehouses nationwide by forcing redistricting with its "one
person, one vote" ruling.
But the liberal Court's use of its decisions to radically alter
social and racial policies in the face of stiff opposition from
state and local politicians offended many.
President Nixon hoped to put an end to the trend, but the Court
under his chief justice, Warren Burger, instead continued it with
liberal rulings such as the Roe v. Wade decision, which legalized
abortion in the first trimester of pregnancy, after state after
state had refused to do so. …