Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.
The modern conservative movement is built upon a few axiomatic principles: lower taxes, smaller federal government, a stronger military. Launched in journals and conservative think tanks from the 1950s to the ’70s, much of today’s conservatism owes its origins to the perceived excesses of the welfare state first erected in the New Deal and expanded in the 1960s. Americans for Tax Reform Founder and President Grover Norquist’s oft-quoted comment that government must be cut so that “we can drown it in a bathtub” represents the quintessential goal for many conservatives: the full and complete dismantling of the American welfare state.
Another, perhaps less well recited, axiom of the conservative movement is the need to expunge the courts of activist judges. Many who rail against judicial activism get their bearings from the evangelical movement in America: in these quarters of conservatism, the ROE v. WADE decision of 1973 was a perfect example of activist judges gone wild. To the Christian right, Justice Blackmun’s opinion showed no judicial restraint whatsoever; he and his liberal colleagues who signed ROE remain Exhibit A in the case against legislating from the bench.
Certainly the religious right has used judicial activism as a rallying cry in the last three decades, with varying degrees of success. Yet, the “movement” against judicial activism is older than ROE v. WADE, and predates the ascendancy of social conservatism in America. As Tony Freyer’s LITTLE ROCK ON TRIAL implies, its roots can actually be traced to the backlash against BROWN v. BOARD OF EDUCATION and subsequent civil rights cases. While Freyer does not directly address the connection between the legal resistance to desegregation in the South and the ongoing movement to overturn ROE, one cannot help but take note of the continuity in arguments against judicial activism by southern segregationists on the one hand and by Christian evangelicals and fundamentalists on the other.
The specter of judicial activism lurks in the background of Freyer’s rich and unceasingly detailed book, while the main focus centers on the history of the Little Rock Nine and the events that led to the Supreme Court’s decision in COOPER v. AARON in 1958. After the BROWN decision, the Little Rock school district came up with a school desegregation plan. At the same time the Arkansas Legislature was in the process of amending the State Constitution, effectively making desegregation illegal [*277] as a matter of state constitutional principle. The state legislature then passed a law which relieved any student of the duty to attend desegregated schools. In the fall of 1957, Little Rock High School had begun to desegregate – over the objections of state and local officials, to international attention, and ultimately through the intervention of President Eisenhower. Several months later, members of the School Board in Little Rock initiated a lawsuit asking the courts to suspend the desegregation plan. The Federal Court of the Eastern District of Arkansas upheld the suspension in February 1958 in AARON v. COOPER. But the Court of Appeals for the Eighth Circuit overturned the lower court decision, setting the stage for the US Supreme Court decision later in 1958.
The Court announced its unanimous opinion in late 1958. In it the Court held that the Little Rock school board had acted in good faith and in accordance with the BROWN decisions to desegregate “with all deliberate speed.” Moreover, the Court reasoned that the Supremacy Clause of the US Constitution and MARBURY v. MADISON (1803) gave the Supreme Court the authority to declare any act by the Arkansas Legislature unconstitutional if it violated the US Constitution or any of Court’s decisions – in this case, BROWN I and II. In a separate concurring opinion, Justice Felix Frankfurter argued forcefully that, by willfully resisting the Court’s decisions, members of the Little Rock community were inviting chaos. Freyer writes:
Like the majority opinion, Frankfurter’s concurrence targeted the claim that disorder justified delaying enforcement of the desegregation order. “No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force,” he said. “To yield to such a claim would be to enthrone official lawlessness, and lawlessness if not checked is the precursor of anarchy” . . . The shared supremacy of the Court decisions and the Constitution was especially binding where such decisions resulted not from a divided Court, but “were the unanimous conclusion of a long-matured deliberative process” (p.186).
Freyer’s narrative throughout LITTLE ROCK ON TRIAL is rich and filled with excruciating detail – so much detail, in fact, that at times the reader is left dizzy with the depth, breadth and minutia of the storyline. Professors who teach courses in the history of the Civil Rights Movement and Constitutional Law will find this book a worthy case study and companion to the numerous texts which focus on the BROWN decision. At times, the reading flows smoothly; at others it is rather coarse. Though the story of the Little Rock Nine is well known, Freyer largely stays clear of making them the centerpiece to his work. It is a wise decision. The most fascinating sections of the book are those that focus on the legal strategy in and out of the courts and the courts’ responses - particularly Chapter 5 as Freyer leads the reader through the thought processes of the Justices as the Court prepared to announce its opinion in COOPER v. AARON. The backstory to the decision, and the jockeying between Brennan, Harlan, Warren and Frankfurter as the latter prepared his concurring opinion, is something Supreme Court scholars will relish.
As rich as the book is in narrative, Freyer’s attempts to contextualize his [*278] account in a theoretical discussion of the role of the courts in a democracy, or the philosophical justification for judicial activism fall a bit short. Here I wish to come back to the concept of judicial activism for a moment. In the introduction, Freyer indirectly seeks to build a case about the nature of Supreme Court opinions in a democracy – and the need at times for the Court to practice “judicial activism” when the other branches of the federal government are not particularly interested in protecting fundamental rights. Furthermore, Freyer argues that the BROWN decisions and their progeny were vital in igniting the Civil Rights movement. Court decisions in Freyer’s view were consistent sources of inspiration to Martin Luther King, the NAACP, and activists all over the South who were seeking to dismantle segregation.
In other words, Freyer makes the argument that the “courts matter” and that sometimes “judicial activism” is necessary. Noted – but here Freyer may have done well to engage and situate his work within two bodies of scholarship which Gerald Rosenberg in his book THE HOLLOW HOPE addresses: the Dynamic Court view and the Constrained Court view. On one side, many scholars have argued that the courts are effective producers of social change; on the other, there are those who say that, although the courts can point the way to a brighter future, ultimately they need the other branches of government to act. Freyer seems to be arguing in the Dynamic Court vein; Rosenberg’s book takes the Constrained Court perspective. Situating his work within this literature may have grounded Freyer’s work more theoretically.
This brings us back to the concept of judicial activism – something which lies at the heart of Freyer’s work but always lurks just beneath the surface. If judicial activism is defined as the Court’s willingness to overturn precedent or the actions of the other branches of government to attain certain social or policy goals, then decisions like BROWN and COOPER indicate the best we can expect from an activist court. As Freyer makes clear, little would have changed had it been up to those states hostile to civil rights in the first place or a federal government largely paralyzed and intransigent. Civil rights activists were emboldened by the courts. It is certainly no coincidence that the Montgomery Bus Boycotts occurred after BROWN I and II – not before.
Judicial activism can ignite a spark; this is ultimately the message of LITTLE ROCK ON TRIAL. And yet, as Freyer tries to come to grips with this in the closing chapters, the success of the judicial activism the courts practiced from the 1950s on in the area of civil rights is mixed: “Activist federal authority like that enforced in Little Rock and COOPER v. AARON was necessary for progress, but such progress was ambiguous” (p.230). The reason is clear: in the end judicial activism can be undemocratic in the sense that court decisions sometimes fly in the face of voting publics. This is the sordid history of school desegregation in the South: the activist courts found themselves at odds with democratic majorities determined not to integrate their schools. As dynamic as the courts are in Freyer’s account, sooner or later the courts will be constrained by voting majorities – for better or for worse. [*279]
In the end, it is perhaps no coincidence that in the same part of the country which railed against judicial activism and an overbearing federal government in the area of civil rights, we see an ongoing movement to end the “judicial activism” of the courts in the area of abortion rights.
Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
BROWN v. BOARD OF EDUCATION (I) 347 U.S. 483 (1954).
BROWN v. BOARD OF EDUCATION (II) 349 U.S. 294 (1955).
COOPER v. AARON 358 U.S. 1 (1958).
MARBURY v. MADISON 5 U.S. 137 (1803).
© Copyright 2008 by the author, Christopher Malone.