Sea Change for High Court

Article excerpt

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 employees?

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. …

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