II. THE DEBATE OVER NEUTRAL PRINCIPLES
A. The Genesis of the Neutral Principles Debate
Brown v. Board of Education, 29 decided on May 17, 1954, may
fairly be regarded as the first significant act of the Warren Court.30 It
played to immediate and widespread applause. Most of the country
hailed Brown for its egalitarian result, and commentary at the time
regularly noted racial segregation's incongruity with the broader
promise of democracy.31 Many saw the decision as particularly useful
for removing a blot on the United States's ability to combat the communist
threat.
Not all reviews of Brown were positive, however; the decision
was met with catcalls and threats of defiance as well. Some of the
criticisms academics advanced in later years about Brown and the
Warren Court bore a remarkable similarity to segregationist
complaints at the time of the decision itself. Many of those attacking
29. 347 u.s. 483 (1954).
30. See Alexander M. Bickel, The Supreme Court and the Idea of Progress 4·8 (Harper &
Row, 1970) (arguing that Brown represented the first sharp break with the Vinson Court).
31. Michael Klarman has argued persuasively that Brown's countermajoritarian nature is
greatly exaggerated-an assessment with which I agree. Michael J. Klarman, Rethinking the
Civil Rights and Civil Liberties Revolutions, 82 Va. L. Rev.1, 19-21(1996).
508 VANDERBILT LAW REVIEW [Vol. 50:503
Brown made claims that the decision represented naked power
politics by the Supreme Court, which had abandoned proper
constitutional forms. "The South," proclaimed Senator James
Eastland of Mississippi, "will [neither] abide by nor obey this
legislative decision by a political court."33 A Manifesto of Ninety-Six
Members of Congress accused the Court of substituting its "personal,
political and social ideas for the established law of the land" and
decried the decision as "naked power" and "naked judicial power."34
Although the ugly vehemence of these remarks is troubling, the
juxtaposition of "naked power" with judicial propriety mirrors the
neutral principles debate of both judicial generations.
Complaints that the Supreme Court had abandoned its judicial
role to engage in power politics were not unique to the time immediately
following Brown; they would plague the Warren Court throughout
its tenure. In 1958, the Conference of Chief Justices, in a sharply
critical report commenting on many of the Supreme Court's decisions
not dealing with race, accused the Court of exercising "almost unlimited
policy-making powers."35 Speaking in the midst of a heated congressional
and national furor over whether to strip the Court of jurisdiction
in cases involving communists or otherwise to modify Court
decisions, Senator Jenner of Illinois suggested that judicial review
was being used "as a device for conforming the law to what the individual
members of the Court, or a majority of them, think the law
should be. In the latter case, judicial review is being used to promote a
judicial oligarchy, and is bringing us far closer to a government of men
and not of laws."36 In 1965, following the turmoil that arose after the
school prayer37
and reapportionment38 decisions, a publication for
33. William S. White, Ruling to Figure in '54 Campaign: Decision Tied to
Eisenhower-Russell Leads Southerners in Criticism of Court, N.Y.Times 1(May18, 1954).
34. Text of 96 Congressmen's Declaration on Integration, N.Y. Times 19 (Mar. 12, 1956).
See also Southern Manifesto, 102 Cong. Rec. 4460 (1956).
One federal judge even called the Supreme Court a "hierarchy of despotic judges" and
accused it of discriminating against white citizens. U.S. Judge in South Assails High Court,
N.Y. Times 6 (July 26, 1957) (comment of George Bell Timmerman, Sr., Federal District Judge
of South Carolina). Apparently anticipating Wechsler's argument, Senator Sam Ervin of North
Carolina said the Court's segregation decisions violated "the freedom to select one's associates.
Whenever Americans are at liberty to choose their own associates, they virtually always select
within their own race." Sam J. Ervin, Jr., The Case for Segregation, Look 32 (Apr.3, 1956).
35. What 36 State Chief Justices Said About the Supreme Court, U.S. News & World
Report 92 (Oct. 3, 1958). See also Conference of Chief Justices, Report of Committee on FederalState
Relationships as Affected by Judicial Decisions (August, 1958), printod in 104 Cong. Rec.
A7782 (1958).
36. 104 Cong. Rec.18,641 (Aug.20, 1958).
37. School District of Abington Township v. Schempp, 374 U.S. 203 (1963); Engel v.Vitale,
370 u.s.421(1962).
1997] NEUTRAL PRINCIPLES 509
students called Senior Scholastic published an article entitled The
Supreme Court ...Guardian or Dictator of the Nation's Laws?39
Although the foaming cries of rabid segregationists might have been
dismissed easily, by the time the furor was over the Court could count
among its critics many members of the American Bar Association,
many members of Congress, and many state Supreme Court Chief
Justices.40
In light of the identity of the Court's critics and the tenor of
their criticism, academic critics stayed mute for some time after
Brown, and when critical, they approached the task with delicacy.
Erwin Griswold, Dean of the Harvard Law School, explained: "With
such a hue and cry being raised, one should be very careful that he
does not join it, and that he does not create the impression that he is
joining it."41 In a later article, he elaborated, "[a]nything [a critic]
may write is susceptible to misuse by such irresponsible critics of the
Court and its work."42 Phillip Kurland, a Professor of Law at the
University of Chicago, rose to defend the work of the state Supreme
Court Chief Justices whose report he had helped draft. He worried
that the report "gave aid and comfort to the enemy.... It was the
warm greetings of brotherhood from the Southern demagogues and
the paeans of praise from the American witch-hunting fraternity that
did the harm."43 He might have added that releasing the report
amidst the Little Rock controversy that resulted in Cooper v. Aaron44
had not helped.
If the ice was to be broken in polite circles, no one was better
suited to do so than Learned Hand, "the most revered of living
American judges."45
Eighty-seven years old in February of 1958, he
"was called"46 to the Harvard Law School to give the prestigious
Holmes Lectures, an event whose attendance rivaled a major theater
38. See, for example, Reynolds v.Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S.
1 (1964); Baker v.Carr, 369 U.S. 186 (1962).
39. The Supreme Court ...Guardian or Dictator of the Nation's Laws?, Senior Scholastic
6 (Mar. 4, 1965).
40. See notes 33-36 and accompanying text.
41. Erwin N. Griswold, Morrison Lectures, 43 Mass. L. Q. 98, 101 (1958).
42. Erwin N. Griswold, The Supreme Court, 1959 Term-Foreword: Of Time and
Attitudes-Professor Hart and Judge Arnold, 74 Harv. L. Rev. 81, 82 (1960).
43. Philip B. Kurland, The Supreme Court and Its Judicial Critics, 6 Utah L. Rev. 457,
459 (1959).
44. 358 u.s. 1(1958).
45. Gerald Gunther, Learned Hand: The Man and the Judge 653 (Knopf, 1994).
46. J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84
Harv.L. Rev. 769, 769 (1971).
510 VANDERBILT LAW REVIEW [Vol. 50:503
opening. Judge Hand's appearance came amidst fury at some of the
Supreme Court's decisions in cases involving communists. Southern
segregationists had stood alone since Brown, but with recent civil
liberties decisions limiting state and federal witch-hunting activities, the
segregationists had finally found an issue calculated to attract broader
national condemnation of the Supreme Court.47 Learned Hand, as it
turned out, was sharply critical of the Supreme Court's activism, a
fact that turned the heads of the Court's admirers. "Warren Court
admirers could dismiss the most vocal critics of the Court as
extremists; yet here was the nation's most highly regarded judge,
renowned as the most articulate advocate of liberty, apparently joining
the Court's enemies."48
Context helps to illuminate how this revered judge of generally
liberal ideals came to be criticizing the Warren Court. Learned Hand
was an old-guard progressive. He had fought the battle in favor of
progressive legislation against the Old Court,49 a battle that was not
won until the defeat of that Court amidst the furor over President
Franklin Roosevelt's Court-packing plan.50 Learned Hand and other
progressives had attacked the Old Court repeatedly for using the
Constitution, particularly the Due Process Clause, to strike
progressive legislation.51 Given his part, Learned Hand could not
reconcile criticizing courts for invalidating economic legislation, while
approving their using those same clauses to strike laws in the name of
civil or personal rights.52 Any such interference with the operations of
legitimate democratic government constituted the Supreme Court, in
Learned Hand's view, as a "third legislative chamber."53
47. See J. Patrick White, The Warren Court Under Attack: The Role of the Judiciary in a
Democratic Society, 19 Md. L. Rev. 181, 189 (1958) Southern Congressmen, having failed in their
initial effort to mobilize anti-Court sentiment ..• were quick to perceive that their hasic purpose
of discrediting the Supreme Court would be served whether the issue was undue concern for
civil liberties or softness to communism or states' rights.").
48. Gunther, Learned Hand at 655 (cited in note 45).
49. See Learned Hand, Due Process of Law and the Eight-Hour Day, 21 Harv. L. Rev. 495
(1908). On Hand's involvement in Progressive Era politics, see, for example, Gunther, Learned
Hand at 202-69 (cited in note 45).
50. See Gunther, Learned Hand at 459-60 (cited in note 45). The question of whether
Justice Roberts's famous switch was in response to FDR's Court-packing plan is contested, but I
stand with those who think that widespread popular attacks on the Court apparently influenced
the Supreme Court's general turnaround. See Laura Kalman, The Strange Career of Legal
Liberalism 349 n.70 (Yale U., 1996).
51. See Thomas Reed Powell, The Judiciality of Minimum-Wage Legislation, 37 Harv. L.
Rev.545 (1924);T.W.Brown, Due Process of Law, 32 Am. L. Rev.14, 20-21(1898).
52. Learned Hand, The Bill of Rights 46 (Harvard U., 1958).
53. Id. at 42. Judge Hand expressed his disapproval of such a system in no uncertain
terms. "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I
knew how to choose them, which I assuredly do not." Id. at 73.
1997] NEUTRAL PRINCIPLES 511
Although Learned Hand's main point of criticism was the exercise
of activist judicial review in general, he also took Brown to task.54
Learned Hand's original inclination had probably been to support
Brown, but his correspondence with Supreme Court Justice Felix
Frankfurter suggests that heavy lobbying by Justice Frankfurter
about the decision's rationale ultimately led Learned Hand to attack
Brown.55 In the end, Learned Hand concluded that like other judicial
decisions he had criticized, Brown was nothing but an illegitimate
"coup de main."56
After Learned Hand threw down the gauntlet, the way was
clear for further academic criticism of the Supreme Court and of
Brown. Herbert Wechsler, the Harlan Fiske Stone Professor of Law
at Columbia University,57 accepted the challenge in his own Holmes
Lectures a year later. Unlike Learned Hand, Professor Wechsler was
prepared to accept a role for judicial review. This, Wechsler felt,
followed from Article III and from the decision in Marbury v.
Madison:58 the Court could not shirk its duty to decide constitutional
questions thrust upon it.59 That duty, however, only raised the question
of what standard the Court was to apply, a question Wechsler
was forced to answer although Learned Hand had not.
It is here that Professor Wechsler developed his famous argument
for "neutral principles." In order to separate court processes
from "the ad hoc in politics," Wechsler said, the judicial process must
be "genuinely principled, resting with every respect to every step that
is involved in reaching judgment on analysis and reasons quite
54. ld. at 55.
55. Gunther, Learned Hand 665·66 (cited in note 45). According to Learned Hand's
biographer Gerald Gunther, Hand was sympathetic to Brown. Although skeptical of the Brown
Court's rationale, which seemed to be limited to the special rule of education, Learned Hand felt
he could have supported the decision on the ground that "racial equality was a value that must
prevail against any conflicting interest." Id. at 666. But Justice Frankfurter could not accept
this rationale, reluctant as he was to be boxed into striking down stato anti-miscegenation laws
on the very same ground, a result he did not believe the country would tolerato. Id. at 666·67.
56. See Hand, The Bill ofRights at 55 (cited in note 52). On Learned Hand's struggle with
the Brown decision, see Horwitz, The Transformation ofAmerican Law at 259 (cited in note 18);
Gunther, Learned Hand at 671 (cited in note 45); Kalman, The Strange Career of Legal
Liberalism at 33-34 (cited in note 50).
57. Professor Wechsler's professional chair was more than a little ironic in light of the
tension over the rationale in Brown. After Professor Wechsler's speech, the neutral principle
advanced most often to justify Brown was a rationale based essentially on Justice Stone's
famous footnote four in his decision in Carolene Products. United States v. Carolene Products,
Co., 304 U.S. 144, 152 n.4. (1938). See notes 71-85 and accompanying text.
58. 5 U.S. (1Cranch) 137 (1803).
59. Wechsler, 73 Harv. L. Rev.at 3-10 (cited in note 18).
512 VANDERBILT LAW REVIEW [Vol. 50:503
transcending the immediate result that is achieved."60 "[M]ust they
not," Wechsler asked, "decide on grounds of adequate neutrality and
generality, tested not only by the instant of application but by others
that the principles imply?"61 "[I]s not the relative compulsion of the
language of the Constitution, of history and precedent-where they do
not combine to make an answer clear-itself a matter to be judged, so far
as possible, by neutral principles-by standards that transcend the
case at hand?"62 Wechsler's concern was to distinguish a court of law
from "a naked power organ."63
. . . Professor Wechsler, as will be clear from his position on
Brown, insisted only that the principle in a case-the rule of a casenot
differ depending upon the identity or interest of the plaintiff.
According to Professor Wechsler, it was essential that a court employ
a rule of decision that treated alike the claims of a "labor union or a
taxpayer, a Negro or a segregationist, a corporation or a
Communist."64 . . .
From the general statement about neutral principles, Professor
Wechsler turned to troubling cases, the most vexing of which was
Brown.67
Professor Wechsler professed to agree personally with the
result in Brown,68 but he simply could not explain it by the standard of
neutrality he had imposed. As Wechsler saw it, the decision was
60. Id. at 15.
61. Id.
62. Id.at17.
63. Id. at 19.
64. Id. at 12.
67. ''I would surely be engaged in playing Hamlet without Hamlet if I did not try to state the
problems that appear to me to be involved." Wechsler, 73 Harv. L. Rev.at 31 (cited in noto
18).
68. Id.
1997] NEUTRAL PRINCIPLES 513
not about race, but about the right of association.69 Here, however,
neutral principles escaped him:
Given a situation where the state must practically choose between denying the
association to those individuals who wish it or imposing it on those who would
avoid it, is there a basis in neutral principles for holding that the Constitution
demands that the claims for association should prevail? I should like to think
that there is, butI confess that I have not written the opinion.70