During the Gilded Age the identity of the justices changed, but the Court’s romance with big business flourished. Reformist efforts to reconcile democracy and industrialism were generally rebuffed. The Court endowed corporations with personhood under the Fifth and Fourteenth amendments — which guarantee the rights to liberty, property and due process—and interpreted the commerce clause so as to strike down legislation that tried to inflict on capitalism such “socialistic” and un-American horrors as forbidding the employment of small children in factories. The Court also looked unfavorably on limiting work hours in especially grueling or dangerous and disease-causing jobs; on breaking up the powerful trusts that steamrollered small competitors out of existence; on taxing incomes progressively; and on the right of workers to organize and strike. The Court’s mantra became “Just say no” to anything that smacked of progressive reform — including efforts to ameliorate the real-life misery of everyday people. By the turn of the twentieth century, populist and progressive forces were calling in vain for constitutional amendments or new legislation to end judicial review, but the majority on the Court remained hostile to democracy.
Even the national emergency of the Great Depression did not budge the Court’s majority, which began to invalidate the building blocks of the New Deal. But fortune and a Democratic landslide in 1936 broke the Court’s blockade. After Roosevelt tried and failed to add six extra justices, a series of resignations and deaths created vacancies that he quickly exploited. Eventually, in his twelve years in office, Roosevelt named not six but eight new justices. After almost 130 years of shielding those whom Roosevelt dubbed “economic royalists” from the effects of human suffering and popular discontent, the Court swung left, where it more or less stayed for some four decades, including eight years of Republican administrations.
Under Chief Justice Earl Warren, an Eisenhower appointee, a shower of socially liberal decisions refreshed the roots of “liberty and justice for all”: Brown v. Board of Education, Baker v. Carr, Griswold v. Connecticut, Miranda v. Arizona, New York Times Co. v. Sullivan. These rulings in the aggregate ended segregation, decreed “one person, one vote” representation in state and federal election districts, guaranteed the right of couples to choose contraception, strengthened the rights of criminal suspects against governmental coercion, and shielded the freedom of the press from libel prosecutions. In the generally liberal atmosphere of the 1960s and ’70s, frustrated conservatives could only grind their teeth and flaunt their opposition to changing values and mores with “Impeach Earl Warren” billboards and bumper stickers, though attempts in Congress to do exactly that always failed.
But the days of dominant social liberalism were numbered. The last important victory scored by the shrinking number of progressive Democrats in the Senate was to defeat Ronald Reagan’s nomination of Robert Bork to the Court in 1987. In his confirmation hearings, Bork proved himself a vigorous and intellectually skilled opponent of almost every one of the Court’s rights-guaranteeing decisions for the preceding fifty years. His appointment would have pushed the Court toward a resurrection of the good old days when the captains of industry ruled politics and devout practitioners of the dominant Christian orthodoxy governed the lives of others.