The Birth of the Modern Constitution: The United States Supreme Court, 1941-1953

Oliver Wendell Holmes Devise History of the Supreme Court of the United States #12

by William M. Wiecek

1941-1953 marked the emergence of legal liberalism, in the divergent activist efforts of Hugo Black, William O. Douglas, Frank Murphy, and Wiley Rutledge. The war and early Cold War years of the Court in reality marked the birth of the constitutional order that dominated American public law in the later twentieth century. That legal outlook emphasized judicial concern for civil rights, civil liberties, and reaction to the emergent national security state. This book recounts the history of United States Supreme Court in the momentous yet usually overlooked years between the constitutional revolution that occurred in the 1930s and Warren-Court judicial activism in the 1950s.

752 pages, Hardcover

First published October 1, 2005

About the author

William M. Wiecek is Professor Emeritus of History and Law at the Maxwell School, Syracuse University.

Reviews

[Mark · Rating 5 out of 5]

For decades the Supreme Court of the 1940s has lacked the scholarly attention given to its preceding and succeeding eras. Whereas the Court of the 1930s benefited from the momentous drama of its clash with Franklin D. Roosevelt over the New Deal, and the activism of the Court during Earl Warren’s tenure in the center seat has never wanted for attention, the years presided over by Harlan Stone and Fred Vinson as chief justice are generally treated as ones of little interest save for such lamentable episodes as the endorsement of Japanese internment during the Second World War and their legal validation of the early Cold War-era rollback of civil liberties.

One of William Wiecek’s challenges in his contribution to the Oliver Wendell Holmes Devise is to push back against such misconceptions. This he does with an impressively-argued tome that makes a compelling case for treating the years between 1937 and 1954 as pivotal ones in the transition from the “classical era” of American law to the judicial activism that characterized the Court for the remainder of the century. As he notes, this was driven in many ways by the larger transition the nation itself was experiencing during this time, as the ongoing social, economic and technological changes posed new questions as to how to best adapt the existing constitutional structure to them. This was reflected in a range of decisions, many of which proved of considerable relevance down to the present day.

What was lacking during this period, as Wiecek explains, was a new legal paradigm that could give their jurisprudence coherence going forward. Though the justices sought to formulate one, this was hampered by both the objectivity problem and the personality-fueled intellectual conflict for which the Court during these years is so well-known. Describing the battles between such legendary justices as Hugo Black, Felix Frankfurter, William O. Douglas, and Robert Jackson adds considerable color to Wiecek’s text, yet he never loses sight of the law in his descriptions of the oftentimes petty squabbles between these towering legal figures. The clash between the contrasting ideologies expressed by the justices, which was one of general deference to legislative management of change versus a more active supervision of legislative work, played out throughout the period in bitterly-written decisions, and remained unresolved at its end.

Wiecek details the developments with an account of the decisions of the period that is focused heavily on its jurisprudence regarding individual rights. It’s a decision that, while limiting his examination of the Court’s consolidation of federal regulatory authority during this period, allows him to examine in detail the evolution of jurisprudence on issues of civil liberties and civil rights that would loom even larger in the decades that followed. Many of these decisions were the product of larger events at the time, namely the world war and the emergent Cold War of the late 1940s and early 1950s. In these the civil libertarianism of justices such as Black, Frank Murphy, and Wiley Rutledge, ran headlong into the desire for security against threats both foreign and domestic. Wiecek is unsparing in his assessments of their decisions, as he details the tortured reasoning often employed to justify the sacrifice of rights in most of these cases.

Against this inconsistent and regrettable record, however, Wiecek sets the Court’s achievements in addressing the cases regarding civil rights. He compares this period to that of a swelling ocean wave that would crest during the Warren years but which would rest on many of the decisions reached during this period. It’s a judgment in keeping with his overall argument, reflecting its coherence and the author’s interest in fitting the Court’s history during these years within its larger history as well as that of 20th century American law more generally. It’s a noteworthy achievement, one that captures well the import of these years in a way that makes the complex issues addressed during them accessible to the layperson. Though its size may daunt some readers, there is no better book for anyone seeking to understand the history of the Supreme Court in the aftermath of the “Roosevelt Revolution,” nor is there likely to be one to supersede it for some time to come.