ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 448-453


THE EISENHOWER COURT AND CIVIL LIBERTIES by Theodore M. Vestal. Westport, CT: Praeger Publishers, 2002. 360 pp. Cloth $64.95. ISBN:
0-275-97284.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University.


Students of the Supreme Court are so familiar with the basic narrative of the Warren Court's rights "revolution"—when the Court issued decisions expanding the legal protections of racial minorities, political dissenters, and criminal defendants, among others—they often pass over the critical first chapters of this story. Before the
landmark civil rights and civil liberties decisions of the 1960s, the early Warren Court gradually distanced itself from a more conservative and judicially restrained past, carefully assembling the judicial tools and personnel for facilitating "one of the most creative and daring periods in constitutional history" (McCloskey 1994).

In THE EISENHOWER COURT AND CIVIL LIBERTIES, Theodore Vestal trains our attention on this early period of moderate and interstitial judicial development. In dubbing the Warren Court's first nine terms (1953-1961) as the era of the "Eisenhower Court," the author makes a case for the distinctiveness and importance of this Court's challenges, accomplishments, and ideological composition. He appropriately resists the scholarly consensus that the early Warren Court was relatively insignificant, at best a mere prelude to the dramatic legal changes that followed.

In dissenting from this view, Vestal makes a strong case that the Eisenhower Court should be disaggregated from the later Warren Court (1962-1969), when the Court's activism and liberalism was at its prime. The justices appointed by President Eisenhower (Vestal focuses on Eisenhower's associate justices: John Marshall Harlan, William Brennan, Charles Whittaker, and Potter Stewart) "dominated" the Warren Court during its early years. Although the views of both Warren and Brennan eventually drifted to the left, initially, Vestal claims, the Eisenhower justices reflected the President's political centrism, and were neither activist, "ultra-libertarians of the Black-Douglas variety" nor conservatives in the mold of Justice Tom Clark.

Although the Eisenhower Court was friendlier to civil liberties and civil rights claims than the Court of Chief Justice Vinson (1946-1953), it generally avoided stepping in front of public opinion and provoking political reprisals (but see St. Clair and Gugin 2002). The Court manifested "enlightened restraint" (p. 288) through cautious legal maneuvers, including constrained opinions less likely to agitate a conservative Congress and a public still skeptical about many rights claims. Among other techniques, the Court emphasized balancing, case-by-case decision making, procedural over substantive rulings, and statutory rather than constitutional interpretation in promoting civil liberties claims.

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Vestal argues that the Eisenhower Court has been "underrated," and urges his readers to attend to several of its features not fully appreciated by historians and other scholars (p. xii). First, he makes the case that the Court was vital in promoting rights through both its own decisions and by developing legal tools exploited subsequently. For example, besides its line of important civil rights cases, including BROWN v. BOARD OF EDUCATION (1954, 1955), BOLLING v. SHARPE (1954) and COOPER v. AARON (1958), the Eisenhower Court curtailed convictions under the antisubversive Smith Act (1940), so that only 29
of the 141 individuals indicted under the act served prison terms (p. 50). In addition, the Eisenhower Court "provided the framework for the crowning achievements of the later Warren Court" (pp. xii, 294) by, among other moves, developing the incorporation doctrine in cases such as MAPP v. OHIO (1961) and ENGEL v. VITALE (1962).

Finally, Vestal suggests that we ought appreciate the achievements of the Eisenhower Court in light of the modest judicial inheritance passed on by the Vinson Court (which he dismisses as "passive"), and the inhospitable political climate in which the Eisenhower justices operated. In addition to the infamous "impeach Warren" billboards and bumper stickers and other signs of public discontent, the Court faced more direct attacks from a conservative Congress. These culminated in the Jenner-Butler bill (1958), which sought to reverse several Eisenhower-era rulings and strip the Court of its appellate power in five controversial areas (pp. 4-5, 287).

Among other obvious contributions, THE EISENHOWER COURT AND CIVIL LIBERTIES makes a strong case against treating the Warren Court as being of one piece. It also nicely captures the studied incrementalism of the early Court, operating in a political climate quite hostile to significant deviations from the conservative status quo. Moreover, Vestal carefully chronicles the shifting alliances within the Court, and the often prickly relationships between the justices.

More interestingly, however, Vestal's approach invites us to shift our attention away from the traditional focus of studies of the Warren Court and its significance—Earl Warren. In deliberately examining the "Eisenhower Court," Vestal replaces the Chief Justice as the otherwise inevitable node of the Court's activity, allowing us to achieve a more balanced sense of the contributions of both Warren and his colleagues. In this way, Vestal builds on Sanford Levinson's criticism of "the unfortunate proclivity to identify Courts by reference to their Chief Justices," a tendency which "overestimates the importance of many of these denizens, but also, and more importantly, underestimates the importance of their colleagues" (McCloskey 1994: 149).

Vestal's turn from Warren to the associate justices makes particular sense in the context of the so-called Eisenhower Court (As an aside, one should note that this term is somewhat misleading, as Eisenhower did not obviously anticipate or approve of the decisions of his appointees to the high bench.) After an initial period in which the Chief Justice voted somewhat conservatively while familiarizing himself with his new position, Warren increasingly sided with the Court's liberals, Black and Douglas, and often voted against the Court's moderate center. Indeed, in his analysis of 153 non-unanimous civil liberties cases during the Eisenhower Court (1953-1961), Vestal finds that only Black and Douglas participated in the majority less often than

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Warren (p. 255). Although there are other measures of a justice's influence than his or her appearance in majority opinions, Warren was not obviously crafting the early Court in his own image.

Instead, Vestal convincingly argues, this period was decisively shaped by Eisenhower's associate justices, who regularly formed majorities on civil liberties decisions and issued centrist opinions (p. 257). For this "middle bloc" of Eisenhower-era justices, Frankfurter (as the spokesman for judicial restraint) and Brennan ("the consummate coalition builder") were apparently more influential on vote outcomes than the Chief Justice (p. 264).

Vestal depicts the Eisenhower Court and its significance through a generally appealing mix of qualitative and quantitative approaches. He blends detailed pictures of the dynamics and arguments animating specific decisions, with broader discussions of trends in the Court's decision making and coalition formation. He examines the "politics and values" of the Eisenhower era justices by looking at the justice's backgrounds and voting patterns. He considered, for example, whether, and under what conditions, justices voted for appellants making civil liberties claims, and how often their votes squared with, or were in tension with, doctrines announced by the Court.

At times, Vestal's diverse inquiries are mutually fructifying and reinforcing. For example, he bolsters his account of how Warren initially relied on longstanding ties with Justice Clark (p. 230) by noting that despite Clark's relative conservatism, the Chief Justice voted with the Texan more than with any other justice during his first
term (and over 70 percent of the time during his first two terms). Similarly, Vestal shows, through a mix of methods, that despite Brennan's frequent sympathy for the decisions reached by Black and Douglas (and eventually Warren), he was a different sort of liberal: more willing to form majorities with the Court's middle bloc, and often advancing distinct arguments, by filing separate dissents and concurrences, even when agreeing with the outcome preferred by the Court's ideological left (p. 36, 225). As Vestal puts it, Brennan was a "new type of libertarian who rejected the wide-ranging language of the activists" and some of their more sweeping doctrinal preferences, such as total incorporation of the Bill of Rights, even while frequently voting for "the same result as the three justices to his left." (p. 264)

Despite the attractiveness, originality, and inherent strengths of Vestal's core claims and the evidence he uses to support them, readers of THE EISENHOWER COURT AND CIVIL LIBERTIES may find the work somewhat incomplete. To begin with, Vestal's central thesis is curiously underdeveloped and is not traced through his book with sufficient clarity and attention.

Vestal reports that his book "will describe the work of the Eisenhower Court and its impact on the nation as reported by analysts of that time and pay retrospective homage to a Court that has not received proper accolades for its achievements" (pp. 2-3). This agenda, largely appropriate given Vestal's research interests, seems to contain three interdependent parts: 1) a descriptive account of what the Eisenhower Court did; 2) an empirical argument about the broader impact of the Court's activities; 3) and an interpretive and normative assessment of their significance and meaning.

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But Vestal does not consistently parse and investigate these constituent elements of his overall argument, with several unfortunate consequences. Although he devotes considerable energy and skill to describing the Eisenhower Court's evolving doctrine and jurisprudential outputs, this material is difficult to organize and understand without a more vivid sense of the other components of Vestal's argument—how the Court's activity influenced society, and why these developments are of interest. The author provides little systematic investigation of the political accomplishments of the Eisenhower Court, asserting mostly that the Court advanced rights directly and provided the foundations for the "triumph" of the mature Warren Court's "due process and equal protection revolutions" (p. 294). This foreshortened analysis is fairly unsatisfying, especially in light of scholarship questioning the extent to which Warren-era decisions have been carried into effect
(Horowitz 1977; Rosenberg 1991; Klarman 1996, 2002). To assess the Eisenhower Court, then, we need to have a stronger sense of its purported successes—including the short- and long-term impact of its decisions on public affairs, if any.

On the whole, Vestal is clearly admiring of the Eisenhower justices and their centrist and incremental approach to advancing civil liberties. But this assessment is also curtailed, leaving the reader uncertain if Vestal's praise is contingent or general and institutional. Does the author find the early Warren Court praiseworthy for adopting a "moderate jurisprudence" that "reflected the values of that time" (p. 4)? Or is the "enlightened restraint" of the Eisenhower Court a generally desirable feature of our highest tribunal, reflecting the appropriate, constrained role of the Court in a democratic society (cf. McCloskey 1994; Dahl 1957)? At the outset of
his book, Vestal indicates that the Eisenhower Court's distinctive approach to civil liberties provides "a lesson that should not be forgotten" (p. xii), but this lesson is difficult to discern.

In addition to these shortcomings, THE EISENHOWER COURT AND CIVIL LIBERTIES has a strangely dated feel. To describe and assess the work of the Eisenhower Court, Vestal relies largely "upon the work of observers who were writing in the 1950s and 1960s" (p. xii; see also pp. 2-3). Although this approach might be partly defensible—scholars steeped in an era may well have special insights into its judicial politics—the case ought to be made, and, in any event, this orientation should certainly not preclude relevant contemporary scholarship.

But throughout his work, Vestal sharply restricts the scholarship he considers—giving rise to some curious and even dramatic oversights that weaken his analysis and make it difficult to integrate his arguments with today's debates. In discussing the role of international affairs in affecting the development of civil rights, for example, Vestal passes over the important work of Mary Dudziak (2002) and Azza Layton (2000). Similarly, in a footnote describing "quantitative studies…of Supreme Court voting behavior," Vestal cites numerous articles, but none more recent than 1961 (p. 41).

Although widely acknowledging that it is unfair to criticize authors for the research questions they select and those they set aside, scholars invariably employ this very tack. In the case of THE EISENHOWER COURT AND CIVIL LIBERTIES, suggesting additional problems that the author might have explored

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is largely a tribute to the rich and provocative nature of Vestal's basic thesis.

Still, Vestal's work leaves several dangling questions. We might first ask why and how the Warren Court moved from its moderate, Eisenhower phase to the Court we associate with Warren-era activism? Was this transition facilitated by evolving doctrine? New judicial personnel (such as Kennedy appointees White and Goldberg)? Altered public expectations and political priorities?

As a subset of this inquiry, Vestal's work suggests the utility of a comparative investigation of the role of the Chief Justice during the two phases of the Warren Court. Despite his confidence that Warren's leadership, "tact, humor, and persuasion" made him the Eisenhower Court's "most influential member," Vestal's analysis suggests that the Chief Justice was not the bonding element in the dominant moderate bloc. Is Warren's reputation as a charismatic coalition builder vindicated or further elided by the years 1962-1969?

Finally, we might wonder if Vestal's creative organization of judicial history has contemporary application. In THE EISENHOWER COURT AND CIVIL LIBERTIES, Vestal describes a Supreme Court that gradually distanced itself from its predecessor, issuing rather careful judicial opinions over almost a decade, and all the Although constructing legal doctrine and voting coalitions for ushering in a period of greater activism and ideological purity.

Although obviously the story still needs to be told, on a superficial level at least, this description comports with the first sixteen years of the Rehnquist Court—with U.S. v. LOPEZ (1995) representing an arguable dividing point between the contemporary Court's more guarded incrementalism and active, conservative phase. This tantalizing parallel suggests, at the very least, the utility of thinking through whether the Eisenhower Court is essentially idiosyncratic, or whether it offers some broader lessons about the preconditions for judicial revolution.

REFERENCES:

Dahl, Robert. 1957. "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker." JOURNAL OF PUBLIC LAW 6: 279-295.

Dudziak, Mary L. 2000. COLD WAR CIVIL RIGHTS: RACE AND THE IMAGE OF AMERICAN DEMOCRACY. Princeton: Princeton University Press.

Horowitz, Donald L. 1977. THE COURTS AND SOCIAL POLICY. Washington, D.C.: Brookings Institute.

Klarman, Michael J. 2002. "Is the Supreme Court Sometimes Irrelevant?: Race and the Southern Criminal Justice System." JOURNAL OF AMERICAN
HISTORY 89: 119-153.

------. 1996. "Rethinking the Civil Rights and Civil Liberties Revolutions." VIRGINIA LAW REVIEW 82: 1­67.

Layton, Azza Salama. 2000. INTERNATIONAL POLITICS AND CIVIL RIGHTS POLICIES IN THE UNITED STATES, 1941-1960. Cambridge: Cambridge University Press.

McCloskey, Robert 1994. THE AMERICAN SUPREME COURT. Revised by Sanford Levinson. Chicago: University of Chicago Press.

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Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

St. Clair, James E. and Linda C. Gugin. CHIEF JUSTICE FRED M. VINSON OF KENTUCKY: A POLITICAL BIOGRAPHY. Lexington, KY: University Press of Kentucky.

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Copyright 2002 by the author, Bruce Peabody.