Table Of ContentTHE SUPREME COURT
AND THE AMERICAN ELITE,
1789–2020
CONSTITUTIONAL THINKING
Sanford Levinson
Jeffrey K. Tulis
Emily Zackin
Mariah Zeisberg
Editors
THE SUPREME COURT
AND THE AMERICAN ELITE,
1789–2020
Expanded Second Edition
Lucas A. Powe, Jr.
UNIVERSITY PRESS OF KANSAS
© 2021 by the University Press of Kansas
All rights reserved
Published by the University Press of Kansas (Lawrence, Kansas 66045),
which was organized by the Kansas Board of Regents and is operated and
funded by Emporia State University, Fort Hays State University, Kansas State
University, Pittsburg State University, the University of Kansas, and Wichita
State University.
Library of Congress Cataloging-in-Publication Data
Names: Powe, L. A. Scot, author.
Title: The Supreme Court and the American elite, 1789–2020 / Lucas A.
Powe, Jr.
Description: Expanded second edition. | Lawrence : University Press of
Kansas, 2021. | Series: Constitutional thinking | Includes bibliographical
references and index.
Identifiers: LCCN 2021012566 (print) | LCCN 2021012567 (ebook)
ISBN 9780700632800 (cloth)
ISBN 9780700632817 (paperback)
ISBN 9780700632824 (ebook)
Subjects: LCSH: United States. Supreme Court—History. | Constitutional
history—United States. | Law—Political aspects.
Classification: LCC KF8742 .P678 2021 (print) | LCC KF8742 (ebook) |
DDC 347.73/26—dc23
LC record available at https://lccn.loc.gov/2021012566.
LC ebook record available at https://lccn.loc.gov/2021012567.
British Library Cataloguing-in-Publication Data is available.
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
The paper used in this publication is acid free and meets the minimum re-
quirements of the American National Standard for Permanence of Paper for
Printed Library Materials Z39.48-1992.
Contents
Preface vii
I.
Very Modest Beginnings 1
II.
The Court in a Two-Party Republic 29
III.
The States and the Republic 58
IV.
The Sectional Crisis and the Jacksonian Court 85
V.
Civil War and Reconstruction 116
VI.
Industrializing America 148
VII.
Progressivism, Normalcy, and Depression 177
VIII.
After the New Deal Constitutional Revolution 213
IX.
Reforming America 248
vi • Contents
X.
An Uneasy Status Quo 283
XI.
An Imperial Court 312
XII.
The Kennedy Court 351
XIII.
The Republican Dream Court 389
Chronology 425
Notes 435
Bibliographic Essay 471
Index of Cases 477
General Index 489
Preface
since the 1984 election, the Supreme Court has been front and
center in presidential politics. Each party’s candidate warns of dire con-
sequences should the opposing candidate prevail and be afforded the
opportunity to appoint new justices and therefore impact the future
well after leaving office. Today the Supreme Court is confident and
powerful (enough so to enter without hesitation the 2000 presidential
contest). It did not begin this way. Nor did it have to end up this way.
The Court’s history, like all histories, is contingent.
While Americans are more aware of the Court than ever before, it
has always been a player, if for the most part a lesser one, in American
history. Jeffersonians and Jacksonians scrutinized its opinions for evi-
dence that the Court might be engaging in “consolidation,” which they
deemed a constitutional heresy of a national government that could act
adversely to the states’ interests. During the Civil War and Reconstruc-
tion, Republicans watched lest the Court undo their plans to remake the
South. Later, in the decades after the New Deal, the Court policed the
boundaries of state and nation and the permissible and impermissible
uses of police power. In both cases the underlying issue was the state’s
ability to regulate economic affairs. Also following the New Deal, the
vii
viii • Preface
Court began the process of ending segregation and supervising state
criminal procedure as well as dealing with constitutional issues arising
out of World War II and the Cold War. Then, in an extraordinary burst
of activity, the Court nationalized liberal values and took on all outliers.
Thereafter, right up until the present, Americans have debated about
whether the Court should go farther or retreat.
This book is a history of the Supreme Court, placed within the
context of a broader history of the United States and its politics. In
a typical book on American history, the Supreme Court appears, if at
all, as an interruption here and there. Thus there is the controversy
between Thomas Jefferson and the outgoing Federalists that leads to
the establishment of judicial review, Dred Scott and the run-up to the
Civil War, the enshrining of separate but equal, the Court versus the
New Deal, Brown v. Board of Education, and Roe v. Wade, but not much
else. Conversely in a history of the Supreme Court, political events in-
trude occasionally, but the Court is so busy that there is no chance for
a sustained narrative of that history. The Supreme Court and the American
Elite, 1789–2020, situates the Court and its work into a broad narrative of
American history.
This is a law professor’s book enlightened by political science and
history. That is, I have written it in the context of history with the in-
sights of political science but remaining true to the ways the justices
perceived their own work. Doctrine may be driven by events and the
intellectual currents of the times, but nevertheless the justices, for the
most part, take it seriously.
I have attempted to avoid taking sides in any of the controversies of
historical interpretation. But as to the Court itself I have made judg-
ments, based on five decades of study, about how the events and deci-
sions should be understood. The best single volume on the Court and
American history is Robert McCloskey’s The American Supreme Court
(updated wonderfully by my friend and colleague Sandy Levinson),
but McCloskey’s masterpiece was written within a framework domi-
Preface • ix
nated by New Deal–era thinking about the functions of the judiciary.
As the New Deal has receded into history, the Court’s performances,
before, after, and during, take on different meanings. Instead of view-
ing the Court as an enemy or competitor of the other two branches of
government (although occasionally it is), I see it as a part of a ruling
regime doing its part to implement the regime’s policies. Some of its
most historically controversial decisions are far less controversial when
set within the politics of the time. Justices are, after all, as subject to the
same economic, social, and intellectual currents as other upper-middle
class professional elites.
Several themes run through the book, some highlighted explicitly,
others implicit. The dominant theme is that the Court is a majoritarian
institution—that is, it identifies with and serves ruling political coali-
tions. It is staffed by men and women who for the most part are in tune
with their times. Relatedly, changes in personnel matter. Lucky pres-
idents who are able to appoint several justices can—and do—change
the direction of the Court. That helps explain why the Court and its
decisions at the end of the twentieth and beginning of the twenty-first
century are a part of presidential politics and the country’s ongoing
history. It is also a testament to how far the Court and nation have come
from the time that the Court’s first major decision was immediately
reversed by constitutional amendment.
These themes and trends have accelerated through the first two de-
cades of this century. In addition to many of the older constitutional
issues, the Court has changed election law, as well as entering into the
health care controversies, the expansion of LBGTQ rights, and the 2020
census. And in the toxic partisan political climate of the century’s sec-
ond decade, the Court became even more central politically, especially
after Antonin Scalia’s sudden death in February 2016.
