Supreme Court continues to evolve, UVA professor says during O’Connor Lecture

Howard’s lecture was titled “The Struggle for the Supreme Court.” The White Burkett Miller Professor of Law and Public Affairs and Earle K. Shaw Research Professor at UVA’s School of Law, Howard said the court has made a dramatic shift in doctrine from the days of Chief Justice Earl Warren in the 1960s.

“Federalism is back,” said Howard, an authority in constitutional law who has briefed and argued cases before the Supreme Court. “The Warren Court didn’t have much time for states’ rights. It generally upheld national powers and dismissed the states. But (the court under William Rehnquist) revived states’ rights and the court is more willing to police Congress.”

Howard clerked for Supreme Court Justice Hugo Black in 1962, after earning a law degree from the University of Virginia. It was the same year Felix Frankfurter left the court, ushering in what Howard termed “the era of civil rights.” He described the period from 1962 to 1967 as “perhaps the most single active five-year period in the history of the court.” Under Warren, the court “had a liberal philosophy, led by a concern for fairness and equality. They were social engineers; if they saw a problem they fixed it.” The Warren Court nationalized criminal procedures, long held to be a function of the states, and applied the guarantees of the Bill of Rights to state proceedings.

Conservatives generally disliked the Warren Court’s rulings and found a champion in presidential candidate Richard Nixon, who vowed to put strict constructionists on the court if elected. In his first term, Nixon had the almost unprecedented opportunity to fill four vacancies on the court. William Rehnquist, Lewis Powell, Warren Burger and Harry Blackmun all joined the court, and Howard said “journalists soon started talking about ‘the Nixon Court.’”

But a funny thing happened, even with Nixon’s nominees on the bench, Howard said. “Time passed, and it came to be the ‘Burger Court.’ It turned out not to be a wrecking crew. If what Nixon wanted to produce was this cure for judicial action, it didn’t happen.” Instead, the Burger Court struck down the death penalty and legalized abortion with its ruling in Roe v. Wade. “How frustrating this had to be if you were a conservative,” Howard said.

Ideology solidified its role as a benchmark in the Supreme Court nomination process during the Reagan administration, which carefully screened potential nominees before sending names to the Senate for confirmation. Nominees are scrutinized much more closely than in the past, when men like college football star and Heisman Trophy winner Byron “Whizzer” White were named to the court.

Earlier Supreme Court justices like Black, a former U.S. Senator, and William O. Douglas, who had served on the Securities and Exchange Commission, “had come out of national political life,” Howard said. “These were people who were all national players.” That’s a stark contrast to today’s court. “Not one of them has held elected office and none has held national appointed office,” said Howard.

The result is a more bureaucratic, more professional court, Howard said. In recent years, the court has revisited precedents set by earlier rulings in cases involving social issues such as capital punishment. But he said he believes the days of the “surprise justice,” the one whose court rulings generally run contrary to what their ideology might suggest, are over.

“It may well be that the era of surprises is now past,” Howard said. “The vetting process is so thorough now. I say that with a bit of sadness, because I think a surprise is good every now and then.”

Some court observers branded O’Connor with the surprise label, but Howard said her concern for fairness and equality were what drove her decisions.

“It’s not that she has no convictions,” said Howard, who is a personal friend of O’Connor and her husband. “She wants to hear the arguments, read the briefs, knock it around in chambers with the other justices and with her clerks, and then come to a reasoned decision.”

Although there was wide disagreement about the Supreme Court’s role in deciding the 2000 presidential election with its ruling in Bush v. Gore—Howard called it “a poorly written decision”—he said the court is generally in touch with the mood of the nation.

“I think it’s the rare case where everybody says the court is completely out of touch,” Howard said. “Historically, the court has a record of being in touch with the country. If it’s not in touch with the weather of the day, it’s in touch with the climate of the age.”

Before the lecture, Elon President Leo M. Lambert announced that Howard has agreed to serve as the first Sandra Day O’Connor Professor at Elon in January 2009. Named by Washingtonian magazine as “one of the most respected educators in the nation,” Howard will teach a Winter Term course on the impact of American constitutionalism on foreign countries and cultures. He will also deliver the second Sandra Day O’Connor Lecture in fall 2008.