Concern about the court’s ideological motivations came to a head during the New Deal period, when the court blocked some important New Deal programs and threatened to invalidate many more. After his overwhelming victory in 1936, President Franklin Roosevelt moved to discipline the court by increasing its size from nine to 15 justices. Congress ultimately rejected the proposal, but the court more or less backed off from confrontation with a popular president. Roosevelt remained in office long enough to appoint eight justices, and these appointments inaugurated a period during which the court abstained from interfering with economic regulation.
At the same time, the Roosevelt Court’s defense of civil liberties was, at best, spotty. The court occasionally defended the rights of unpopular speakers, but in moments when civil liberties were at greatest risk, it refused to intervene. After the Japanese attack on Pearl Harbor, the Roosevelt administration ordered the exclusion of thousands of Japanese American citizens from their homes. The Supreme Court held that the action was constitutionally permissible, even though the exclusion was based solely on ethnicity and the excluded individuals were given no opportunity to demonstrate their loyalty.
When the McCarthy panic hit the country in the postwar period, the liberal justices again caved to public pressure. They acceded to the criminal convictions and firings of scores of people because of their political affiliations.
Due to a series of historical accidents, by the late 1950s power on the court had shifted to justices who viewed themselves as legal reformers. During the brief heyday of the Warren Court, the justices acted vigorously to dismantle racial apartheid in the South, reform the criminal justice system, protect the free speech rights of dissenters, require equality of population in voting districts, and provide some constitutional protection for poverty-stricken Americans. Even after Chief Justice Earl Warren had retired and a conservative president had somewhat changed the complexion of the court, it rendered pathbreaking decisions protecting reproductive autonomy and attacking gender discrimination.
A half-century later, the Warren Court’s hold on the American imagination remains strong. For many conservatives, the Warren Court remains an exemplar of arrogant and lawless judicial overreach. Its more important impact, though, has been on the attitude of many progressives. Anyone looking at the entire sweep of the court’s history would understand that the court has pretty consistently stood with the most shortsighted and venal impulses in American society. Still, the Warren Court interregnum supports the hope that if only the right justices could somehow be appointed, the Supreme Court might yet be an engine driving us toward the Preamble’s promise that we “establish justice.” That hope, in turn, softens the criticism that many progressives might otherwise direct toward the court.