Mark Houston, a third year law student at Albany Law School, graduated from SUNY Buffalo where he studied Anthropology and Geology. Prior to law school, he was a project director for a cultural resource management firm for several years working closely with state, federal, and tribal agencies.
Presently, Mark interns with the Environmental, Health, and Safety Counsel at General Electric Power & Water. He is also the Vice-President for the Pro Bono Program at Albany Law School and an Editor-in-Chief for the student section of the New York State Bar Environmental Section's newsletter, The New York Environmental Lawyer.
Mark wrote this essay for Prof. Bonventre’s Judicial Process Seminar, Fall 2013.
A
little over seventy-three years ago, future Supreme Court Justice Robert
Jackson presented “A Square Deal for the Court.”[i] While serving as United States Attorney
General, Jackson presented his arguments in support of a shift in the Court’s
analysis of constitutional issues.[ii]
Specifically, he supported the Court’s shift
toward judicial restraint when interpreting legislation related to the “New
Deal.”[iii] While defending the Court’s shift, his
argument proved oddly prophetic of the views of future justices in defending
the court and introspective as to the
cyclical nature of the Court.
In
his address, Jackson came to the defense of the Court, foreshadowing the
behavior of future justices of the Court.
His direct defense of the shift in the Court’s ethos has been repeated
by many justices after him.
Not more
than a quarter century after Jackson’s address, Associate Justice Rehnquist
presented arguments against a living constitution.[iv] Less than a century later, Justice Scalia
attacked proponents of nonoriginalism during a lecture at the University of
Cincinnati.[v] While Justices Rehnquist and Scalia argued
for more “conservative” paths of the Court, compared to Jackson’s justification
of a more “liberal” Court, they all attempt to justify their positions in the
eyes of the public.[vi]
In this way, the nature of Jackson’s address
was prophetic of a future Court in which the justices seek to defend themselves
in a more public and direct manner. The
sage-like prose of Justices Cardozo and Holmes, contemplating the philosophy of
law, seems to have been swept aside for a more realistic discussion of the
Court.
However,
as Jackson touched on, the nature of the Supreme Court is also cyclical.[vii] The Court’s philosophies ebb and flow with
the changing of the Court’s composition.[viii] In a broad, macroscopic view, the Court has
always flowed between the “conservative” and “liberal” shores of our political
landscape.
This is no clearer than
in the shifts in the Court’s ideology over the last century. Prior to the “New Deal” cases, the Court’s
opinions were more in line with conservative views. Then, under President
Franklin Roosevelt, the Court began to shift its use of interpretational tools
to allow for more “liberal” policies.
This “liberal” Court then waned under President Nixon, resulting in the
more “conservative” Court of the late twentieth century. In less than a century, the Court shifted
from the bastion of one political ideology to another.
The Court does not go
through these internal shifts without outside stimulus. It is clear that the political environment
affects the Court’s decisions. There is
no better example than “the switch in time that saved nine,” which occurred
shortly before Jackson’s address.[ix] It shows that the Court is intrinsically tied
to the politics of its day.
The
“conservative” Court that arose in the last quarter of the twentieth century
was a result of the conservative politics of that era. As much as commentators and justices of the
Court want to believe that the Court is independent, it is clear that the
Supreme Court is very much influenced by societal pressures. Opinions do not just flow from the Court, but also toward it.
Yet the statements that
Jackson chose not to make are just as
prophetic and introspective of the Court as the statements he did make. In his defense of the Court’s opinions,
Jackson failed to confront the pressure that President Roosevelt put on the
Court to uphold the “New Deal” legislation.[x] Jackson appears to have chosen to omit facts
in his “objective” argument concerning the rationale behind the Court’s shift
in interpretational methods.[xi]
Jackson’s refusal to
acknowledge the power of outside forces, and instead affirming the independent
nature of the Court, is a tendency future justices would adhere to. Even this, however, is subject to the
cyclical nature of the Court. For
example, the Warren Court’s opinions clearly acknowledged that society outside
the Court played a role in its decisions.
The greatest truth of Justice
Jackson’s argument is the nature of the Court.
The Court is cyclical and will move from one end of the political
spectrum to the other. The Court may
serve the goals of one political group, only to shift its views in favor of
another.
[i] Robert H. Jackson, U.S. Att’y
Gen., A Square Deal for the Court: An
Address by Robert H. Jackson Attorney General of the United States at Boston
College Law School (April 9, 1940)(transcript available at
http://www.justice.gov/ag/aghistory/jackson/1940/04-09-1940.pdf).
[ii] Id. at 1.
[iii] See id. at 2.
[iv] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 693-94 (1976).
[v] See Antonin Scalia, Originalism:
The Lesser Evil, 57 U. Cin. L. Rev.
849, 854 (1989).
[vi] See id.; Rehnquist, supra note 4.
[vii] Jackson, supra note 1, at 2.
[viii] Id.
[ix] “The switch in time that saved
nine” refers to a purported shift in jurisprudence by Supreme Court Justice
Owen Roberts in West Coast Hotel v. Parrish, (300 U.S. 379 (1937)) in order to
appease President Roosevelt and stifle his court-packing plan. See
G. Edward White, West Coast Hotel’s Place
in American Constitutional History, 122 Yale
L.J. Online 69 (Sept. 24, 2012).
[x] See generally Jackson, supra
note 1.
[xi] Id. at 2; Richard A. Posner, The
Incoherence of Antonin Scalia, The New Republic (Sept. 13, 2012).
