Saving the Supreme Court? Constitutional Rights and the Inevitability of Politics (with a Discussion of Antisemitism)

I. Introduction

The Supreme Court is at a low point.^[1] It is rejecting its own precedents,^[2] reaching to decide unnecessary cases,^[3] and scoring poorly on public opinion polls.^[4] Even the Justices themselves are questioning the Court’s institutional legitimacy.^[5] Numerous commentators have suggested possible fixes. Should the Justices be term-limited rather than serving for life?^[6] Should Congress add seats to the Court?^[7] Jamal Greene proposes something different: a provocative change in the Court’s approach to constitutional rights.^[8] According to Greene, his recommended change would temper rights conflicts, diminish political polarization among Americans, and presumably improve the Court’s public status.^[9]

Greene’s argument in his book, How Rights Went Wrong, is brilliant yet deeply flawed. Its brilliance arises from the recommended paradigm shift for the American conceptualization of constitutional rights.^[10] Greene advocates for the Court to switch from a rightsist to a proportionality approach. A rightsist approach views conflicts over rights as all-or-nothing: Either an individual has a protected constitutional right, or the individual has nothing.^[11] Greene recommends the Court repudiate rightsism and adopt a proportionality approach that would focus on the government’s justifications for its action rather than on whether an individual has a right.^[12]

The flaws in Greene’s argument are complex and the subject of this Article. The crux of the problem is that Greene overestimates the power of legal and theoretical arguments, such as his argument for proportionality, and underestimates the degree to which politics influences Supreme Court decision making (and legal scholarship). An increasing number of political scientists and legal scholars recognize that law and politics dynamically interact in Supreme Court decision making.^[13] The law–politics dichotomy—the sharp separation of law and politics that often animates legal discussions—is a myth.^[14] In most cases, the Justices sincerely interpret the relevant legal texts, whether the Constitution or otherwise, but interpretation is never mechanical, like two plus two equals four. No algorithmic method reveals the correct textual meaning.^[15] Instead, the Justices’ political horizons always influence their interpretations of the Constitution and other texts, so law and politics always intertwine in the adjudicative process.^[16]

To be clear, I define politics capaciously. While some political scientists “adopt a narrow definition of politics for purposes of their quantitative studies,”^[17] I am concerned with whether the Court decides cases based solely on traditional legal rules, doctrines, and texts—that is, pure law—or based on other, non-traditional forces or factors.^[18] If the Court decides a case because of adherence to particular political principles or a political party’s agenda, the decision would obviously be political. But beyond that, if a judge’s religious, cultural, or economic background influences how he or she construes a text, the judicial decision is not based on pure law and would also be deemed political (in my capacious sense).^[19] For example, if a Protestant Justice votes against a Muslim free-exercise complainant because the Justice does not understand or sympathize with Islamic religious tenets, that judicial vote is political even if it is unrelated to the Republican or Democratic parties.^[20]

Greene recognizes that politics influences Supreme Court decision making, but he puts that recognition aside and argues as a matter of law, theory, and history. Consequently, his suggestion that switching from a rightsist to a proportionality approach would benefit the Court, American citizens, and American society rings hollow. If the current Court, with its strongly conservative bloc of six Justices, were to adopt proportionality, it would still reach conservative decisions.^[21] Legal doctrines and theories, whether concerning the conceptualization of rights or otherwise, always must be interpreted. And when they are interpreted, politics inevitably comes into play.

A large part of Greene’s argument is historical. After arguing that the nation initially followed an approach to rights akin to proportionality, he explains why the Court switched to rightsism in the twentieth century.^[22] From Greene’s perspective, this switch had catastrophic implications for the nation, and he unequivocally blames two individuals: Oliver Wendell Holmes, Jr., and Felix Frankfurter.^[23] A serious mistake, though, mars Greene’s argument: His depiction of Justice Frankfurter springs from antisemitism, which then skews Greene’s historical analysis of twentieth-century constitutional jurisprudence. In other words, Greene fails to recognize how politics (in the sense of religious and cultural stereotypes) shapes his own analysis and understanding of the historical and legal materials related to Frankfurter. Antisemitism is a grave charge, and I will justify it in detail below. At the outset, though, recognize that I do not know Greene personally. I assume he is not consciously or overtly antisemitic. I am not suggesting he is a bad or malevolent actor; rather he is enmeshed in the social structures and cultural symbols of American, Christian society, which have long propagated antisemitism.^[24] If Greene is guilty of anything, it is unconscious (or soft) antisemitism: He identifies Frankfurter as Jewish and then characterizes Frankfurter in accordance with numerous traditional antisemitic tropes.^[25] In the end, my critique of Greene is ironic. He inadvertently illustrates the flaw in his recommended approach to rights by himself succumbing to the influence of political (or nonlegal) forces—for Greene, antisemitism—just as the Court would do even if it adopted his proportionality approach.

Part II of this Article sketches Greene’s argument for proportionality. Part III criticizes that argument by emphasizing the inevitable role of politics in Supreme Court decision making. It begins by explaining a key distinction between politics writ large and writ small. If politics writ large is the purposeful and overt pursuit of political goals, then politics writ small is politics working in the background, as typically occurs in legal interpretation and Supreme Court adjudication. Even if the Court were to adopt proportionality, politics writ small would continue working in the background and derail the benefits that Greene believes proportionality would deliver. Part III continues by criticizing Greene’s historical analysis of the twentieth century, first criticizing his discussion of Holmes, and then criticizing his depiction of Frankfurter.^[26] It is in this final section, focused on Frankfurter, that this Article discusses antisemitism. The Article ends with a brief conclusion.

II. Greene’s Argument for Proportionality Review

Greene argues to change the American conceptualization of constitutional rights, particularly the Supreme Court’s approach to rights.^[27] He identifies two different ways to conceptualize rights. The current American approach, “rightsism,” views rights as being “all-or-nothing.”^[28] Pursuant to this “binary view” of constitutional rights, an individual has either a protected right—what Greene calls a “true” or “strong” right—or no right at all.^[29] If an individual is constitutionally unprotected, then the individual has mere interests or, at best, a right so weak the government does not need to respect it.^[30]

An alternative approach to rights, proportionality, focuses more on the government’s justifications for its action than on whether an individual has a true right.^[31] Under this second approach, more individuals have more rights, but those rights are weaker than under the American rightsist approach.^[32] Rights are less rare—so plentiful, they are all over the place—yet they are not trumps that preclude government action.^[33] Disputes, then, are not resolved because of the existence of a true right—where there is a winner (protected by a right) and a loser (unprotected)—but because of a proportioned consideration of the competing rights or interests.^[34]

According to Greene, these competing conceptualizations of rights lead to different respective approaches to judicial review. Pursuant to American rightsism, courts resolve disputes by reference to legalist formalities.^[35] The crucial question is whether a true right exists because such a right trumps any other interests. Rights conflicts become “arid interpretive questions that are predetermined by the Constitution’s text and structure, by the original intentions of the long-dead Founders, and by prior court cases.”^[36] The Court, therefore, reviews government actions pursuant to “a two-track system.”^[37] If the Court finds a true right, then the Court applies a rigorous review—often called strict scrutiny—likely to invalidate the government action. If the Court finds no such right, then the Court applies a deferential review—often called rational basis review—likely to uphold the government action as constitutional.^[38]

Pursuant to proportionality, courts attempt to reconcile the multitude of competing rights.^[39] Courts, Greene argues, should use “a strategy of rights mediation,” which demands a focus more on the facts of a dispute than on legalist formalities.^[40] If two individuals or societal groups are in conflict, what are the particularities of their competing interests and values (or rights)? Can they be harmonized in some way?^[41] Assuming the government has taken one side, what are the reasons for the government action? Greene suggests, at one point, that courts should ask the government to justify its action by satisfying a series of tests or questions.^[42] “First, is there a basic congruence between the government’s policy and some legitimate policy objective? . . . Second, could the government achieve its ends in a way that restricts rights less? . . . Third, is the government’s policy seriously out of proportion to the burdens it imposes on rights?”^[43]

Greene uses the Court’s controversial decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, to demonstrate the implications of the two approaches to rights.^[44] The Colorado Civil Rights Commission had concluded that a baker, Jack Phillips, violated the Colorado Anti–Discrimination Act (CADA), a statute prohibiting discrimination based on sexual orientation (as well as other characteristics and identities, such as race).^[45] Phillips, “a devout Christian,” had refused to bake a cake for a same-sex couple’s wedding reception because he opposed such marriages on religious grounds.^[46] Following the American rightsist approach, the Court treated the case as a conflict between two opposed rights: a First Amendment right to the free exercise of religion, and a statutory right to be free of discrimination in places of public accommodation.^[47]

Greene explains how the Court’s approach appeared to increase the stakes of the case: “When the courts make it appear as though what is at stake is who holds rights rather than what holding a right enables, it becomes too easy to characterize the stakes of the case in existential rather than contingent terms: Is there a constitutional right to discriminate?”^[48] From this perspective, only one side, either the baker or the same-sex couple, could have the preeminent right. And the Court chose the baker. The Court found that one of the state Civil Rights commissioners had expressed “hostility” and “animosity” toward Phillips’s religion.^[49] Because of that hostility, the state had failed to maintain “religious neutrality” and hence had violated free exercise.^[50]

Greene maintains that the Court’s rightsist approach obscured “just how narrow the dispute between Phillips and the same-sex couple actually was.”^[51] That is, the two parties agreed on many points. According to Greene, “Phillips didn’t argue that he could refuse to serve gay customers,” while the couple conceded that Phillips could “in general . . . refuse to bake cakes for customers for religious or even purely ideological reasons.”^[52] If one closely accounted for the particular circumstances of the case, the issue reduced to “simply whether Phillips’s refusal to bake this cake . . . in fact constituted discrimination on the basis of sexual orientation.”^[53]

Given this analysis, Greene argues that a proportionality approach could have mediated or reconciled the competing interests (or rights). Rather than deeming either the baker or the couple as possessing the preeminent right—as the winner—the Court could have crafted a more satisfactory solution:

[The Court] could have imposed a duty on Phillips to provide a custom cake—or its equivalent—to [the same-sex couple]. He could have fulfilled this duty by hiring a sous chef who was willing to service same-sex weddings. Alternatively . . . he could have contracted with another cakeshop to prepare a cake whenever a same-sex couple made a request. [The couple] would have gotten their cake, and Phillips wouldn’t have needed to bake it.^[54]

In sum, Greene insists that the Court “should devote less time to parsing . . . arcane legalisms.”^[55] Instead, the Justices should “spend more time examining the facts of the case before them.”^[56] With a more thorough understanding of the facts, the Court should ask the following: “Is the benefit the government is seeking proportionate to the burden placed on those affected by its actions?”^[57]

Greene maintains that proportionality has multiple advantages over rightsism. Most important, proportionality reconnects constitutional rights with substantive justice.^[58] Rather than focusing on abstract formalism and “legal fictions,” the Court should focus on the facts of the “real world.”^[59] In doing so, the Court “must confront the government’s actual behavior, the legislators’ or the executive’s actual motives, the actual evidence available, and the degree to which individuals are actually burdened by government practices that restrict our liberty or favor one person’s rights over another’s.”^[60]

Greene adds that, because proportionality seeks justice in the real world, it is likely to diminish polarization in American politics.^[61] When the Court categorizes a rights dispute as binary—as all-or-nothing—the Court encourages Americans to view their own interests and values, and those of their opponents in the most extreme, existential terms.^[62] Additionally, Greene notes “[t]he American approach is dangerous because it divides us into those who have rights and those who don’t.”^[63] Proportionality encourages Americans to consider how their interests and values can be reconciled with those of their opponents: “Rights conflicts can offer a teachable moment, one in which judges mediate, in which they tell a divided people what they share and where they can find common ground.”^[64] To be sure, Greene does not argue that the Court’s current conceptualization of rights is the sole cause of American polarization, but it exacerbates the problem—when a proportionality approach could help alleviate it.^[65]

Finally, Greene emphasizes that a proportionality approach would foster American democratic self-governance.^[66] If Americans were less polarized, and less likely to view their neighbors as their enemies, then they would be more likely to work together through the democratic process. Indeed, Greene suggests that “local representative bodies,” including legislatures and juries, might often be better equipped than judges to mediate the rights of diverse citizens.^[67] Judges are too quick to retreat to legal formalities, while representative bodies will be more likely to give voice to diverse interests and values.^[68]

Greene bolsters his argument for proportionality by tying it to constitutional practices in other nations and to the American constitutional framing. For instance, Greene discusses proportionality in the constitutional jurisprudence of Germany and the United Kingdom.^[69] These comparative discussions are significant in two ways. First, they underscore that the current American rightsist approach is not the only possible way to conceptualize constitutional rights. Second, they show how proportionality can work in practice, contrasting it with rightsism.^[70]

Greene’s discussion of American constitutional history is central to his argument. He emphasizes that Americans of the framing and early-national eras did not conceive of rights as all-or-nothing: Constitutional practice was closer to proportionality than rightsism.^[71] More specifically, rights were linked to self-governance, so that the government—representing the people—could always infringe or diminish rights if in pursuit of “the public welfare” or, in other words, the common good.^[72] This republican democratic conceptualization of rights resonated with proportionality because the focus was on the government’s reasons and means for its action rather than on an interpretive quest for an all-or-nothing right.^[73] The existence and vitality of rights were, in other words, subject to “the community’s judgment,” as “[a] just and reasonable society protects rights because rights protect everyone in the society.”^[74]

As Greene argues, though, the Framers’ willingness to accept and constitutionalize exclusions from self-governance undermined their “vision of rights.”^[75] Greene emphasizes, in particular, the Framers’ racism and constitutionalization of slavery.^[76] He explains a twentieth-century transition to rightsism as part of an effort to invigorate civil rights in response to the lingering racism of American society.^[77] For Greene, the invigoration of civil rights and combating of racial discrimination was necessary, but the Court’s rejection of proportionality for rightsism was fundamentally mistaken.^[78] He largely attributes that mistake to two individuals: Oliver Wendell Holmes, Jr., and Felix Frankfurter.^[79]

Greene emphasizes, in particular, Holmes’s dissent in Lochner v. New York, decided in 1905, and Frankfurter’s subsequent glorification of Holmes and his dissent.^[80] Lochner arose when New York enacted a prototypical Progressive statute restricting the number of hours employees could work in bakeries (ten per day and sixty per week).^[81] The state offered two justifications for the statute: as a regulation of labor relations, and as a regulation for health purposes.^[82] In a five-to-four decision, the Court rejected those justifications and invalidated the law as violating due process, including “liberty of contract.”^[83] Holmes’s dissent argued that the Court should have acknowledged the ambiguity of due process and therefore, deferred to the legislative judgment.^[84] According to Greene, Holmes’s central message was the following:

[T]he word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant [democratic] opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.^[85]

Greene argues that this Holmesian proposition provided the foundation for one-half of the two-track (or rightsist) system of judicial review.^[86] In other words, as Greene tells it, Holmes maintained that if the Court concludes there is no protected constitutional right, then the Court should apply the deferential, rational basis review.^[87] If not for Frankfurter, though, Holmes’s Lochner dissent might merely be an interesting footnote in constitutional history—at least according to Greene.^[88] Because Frankfurter “amplified” Holmes’s dissent, Greene maintains, the Court eventually developed the two-track, or rightsist, approach to constitutional rights.^[89] The second track—that is, the rigorous or strict scrutiny method of judicial review—first clearly emerged in United States v. Carolene Products Co., decided in 1938.^[90] In upholding an economic regulation that restricted the interstate shipment of certain types of milk, Justice Harlan F. Stone’s majority opinion showed great deference to Congress, in accordance with the “rational basis” track of the two-track approach.^[91] But Justice Stone’s footnote four explained that such a “presumption of constitutionality” would be inappropriate if legislation either would likely cause or had resulted from defective democratic processes.^[92] For example, if legislation discriminated against “discrete and insular minorities” or would subsequently prevent such societal groups from voting or organizing politically, then Stone suggested it should “be subjected to more exacting judicial scrutiny.”^[93] According to Greene, footnote four and the two-track rightsist approach “was a victory for Frankfurter and, through him, for Holmes.”^[94] Subsequently, Brown v. Board of Education would cement this Frankfurter victory when it declared unconstitutional laws segregating public schools on the basis of race^[95]—as footnote four had emphasized the constitutional protection of “discrete and insular minorities,” including “racial minorities.”^[96] Brown, from this perspective, epitomizes the American understanding of (true) rights, as described by Greene: “[R]ights are meant to protect minorities and dissenters from the tyranny of the majority, they are enforced coercively by judges, and they are presumptively absolute, yielding only in special circumstances, if at all.”^[97]

III. The Inevitability of Politics

Greene suggests that switching the American conceptualization of rights, going from all-or-nothing rightsism to proportionality, would remedy many problems with the current Supreme Court.^[98] From Greene’s perspective, if the Court were to adopt a proportionality approach, then the Justices would hand down better decisions—that is, decisions mediating diverse interests and values (or rights).^[99] Proportionality would produce substantive justice, diminish polarization, and promote democratic self-governance.^[100]

On this crucial point, Greene is wrong. The problem is that politics, defined capaciously, always influence constitutional interpretation and decision making. Because of the deep-seated conservatism of six Justices on the current Court, a change from rightsism to proportionality would be unlikely to alter many decisions.^[101] The conservative bloc, quite simply, will consistently reach conservative decisions. This recognition, about the power of politics in Supreme Court decision making, does not mean that different constitutional theories, interpretive approaches, and specific legal doctrines cannot more readily facilitate particular results. For example, invocations of originalism can facilitate reaching conservative outcomes but do not necessitate them.^[102] Of course, an interpretive method (originalism) that ostensibly emphasizes constitutional meaning at a time when only wealthy, white, Christian men could fully participate in democratic politics—such as in 1791 (ratification of the Bill of Rights)—would appear to legitimate judicial decisions favoring wealthy, white, Christian men.^[103] In a similar vein, formal legal rules facilitate conservative outcomes but do not necessitate them.^[104]

Even if we could somehow force the current Justices to adopt proportionality, they would not suddenly start deciding cases based on substantive justice—and reach more progressive outcomes. In fact, Greene himself occasionally acknowledges this crucial point. When discussing the American rightsist approach, Greene writes: “Unsurprisingly, the rights judges declare us to have end up aligning with their own subjective sense of what is needed for a well-lived life. Rights stop being about justice and start being about the justices.”^[105] Therefore, when he discusses the Fourteenth Amendment and its protection of due process and equal protection, Greene explains that:

[S]imply saying that someone has rights does not make it so. The Fourteenth Amendment had to be interpreted. It didn’t take long for judges to forget the people this new set of rights was made for [that is, Black Americans, particularly former slaves] and to put the rights to other uses.^[106]

For the most part, though, Greene brackets this insight—that politics always influences constitutional interpretation and decision making—and instead argues at a more abstract theoretical level. For example, when discussing the connection between rightsism and political polarization, Greene explains how courts resolve disputes over rights: “Our judges resolve these conflicts in ways that are morally arbitrary, homing in on arid precedents, logical fallacies, or anachronisms.”^[107] Notice that politics, according to Greene, does not shape or influence how judges resolve these rights conflicts. Without a doubt, Greene criticizes legal reasoning—to label it “morally arbitrary”^[108] is not a compliment—but he mostly writes as if law and politics are distinct. The problem with Supreme Court decision making, he insists, lies with the Justices’ conceptualization or theory of rights rather than with the Justices’ political views. If the Court were to change its conceptualization of rights from rightsism to proportionality, benefits would abound.^[109]

I do not intend to suggest that the problem with the Court is that the Justices are political. To the contrary, the ostensible separation between law and politics—the law–politics dichotomy—is a myth. The Justices always decide cases pursuant to a law–politics dynamic—an uncertain and intertwined mix of law and politics. Greene, therefore, greatly underestimates the reach of his own insight into the interrelationship between politics and constitutional decision making. It is the insight that eats the theory (of proportionality): politics, in most cases, will lead the Justices to their preferred (political) outcomes. In short, the conservative bloc of Justices would continue handing down conservative decisions even if they adopted proportionality.

Politics powerfully influences constitutional decision making, but many judges, lawyers, and law professors still deny its power for at least two reasons. First, legal professionals have a vested interest in the law–politics dichotomy, even if it is a myth. After all, our professional identity and niche in the economic marketplace are based on our knowledge of law.^[110] Second, in most cases, politics works in the background—as politics writ small—rather than the foreground—as politics writ large. Think of politics writ large as the purposeful and overt pursuit of political goals; members of Congress trying to enact a statute would be an example. Supreme Court decision making is different: ordinarily, it is politics writ small. The Justices focus on interpreting the relevant legal texts, but because legal interpretation is never mechanical, politics work in the background to shape the Justices’ interpretive conclusions. For that reason, the Justices’ legal interpretations and judicial conclusions ordinarily coincide with their respective political preferences.^[111]

To be sure, progressives might suspect that the current conservative Court has decided recent cases pursuant to politics writ large rather than writ small. Dobbs v. Jackson Women’s Health Organization overruled so many decades of precedents recognizing and reaffirming a constitutional right to choose whether to have an abortion that one might reasonably wonder whether the conservative Justices ignored the law and decided based solely on politics.^[112] Indeed, numerous commentators have reacted to Dobbs and similar conservative decisions by arguing that the Justices are following a political agenda rather than the law.^[113] Yet even in Dobbs, the conservative Justices discussed traditional sources of constitutional meaning, such as the constitutional text and history, rather than their own political preferences.^[114] Of course, the Justices’ mere discussion of these traditional legal sources does not necessarily mean the Justices sincerely considered them (rather than their politics). Simultaneously, though, the Justices’ conclusion in Dobbs—repudiating a right to choose—does not prove that the Justices decided pursuant to politics writ large. In fact, in any Supreme Court decision, one cannot know for certain how much the Justices sincerely interpreted the legal texts—only implicitly following their politics—and how much they overtly followed their politics. Yet, quantitative and qualitative evidence strongly suggests that, as a general matter, Supreme Court Justices decide pursuant to politics writ small (or the law–politics dynamic).^[115]

In any event, the crux of the matter is that politics always influences constitutional interpretation and decision making. And significantly, legal scholarship is no more likely than judicial decision making to be free of political influence. When legal scholars interpret legal (or historical) texts, politics writ small is likely to be at work.^[116] And so it is for Greene.

Since Greene maintains that the framing and early-national generations understood rights from a generally proportional perspective, a key part of his argument revolves around the twentieth century transition to rightsism—a crucial mistake in the American development of rights, according to Greene.^[117] He identifies two individuals, Holmes and Frankfurter, as largely responsible for that mistaken transition (as mentioned in the prior Section).^[118] At one point, Greene expressly writes that Holmes “is the bad guy in this tale,” but Greene targets Frankfurter for far more scorn.^[119]

Greene’s historical narrative is highly reductionistic. Many constitutional scholars and historians have recognized that American constitutional law underwent a significant transformation in the late 1930s and 1940s.^[120] Unquestionably, these scholars and historians disagree about the specific causes of this transformation. Yet, Greene’s focus on Holmes and Frankfurter as primarily responsible, disregards numerous factors and forces that contributed to a complex social, political, and legal upheaval.

A. Holmes and His Lochner Dissent

Let’s start with Greene’s treatment of Holmes’s Lochner dissent. The essence of Holmes’s opinion, Greene suggests, is the repudiation of the due process right to liberty of contract and the consequent application of a deferential or rational basis test to the legislative action. But Holmes’s dissent is open to a more historically nuanced interpretation. One must begin with a fundamental distinction between two forms of democracy: republican and pluralist. Under republican democracy, virtuous citizens and officials supposedly pursue the common good rather than their own partial or private interests.^[121] Whereas republican democracy emphasizes a substantive goal (the common good), pluralist democracy requires following the proper processes.^[122] For example, in a pluralist democratic regime, citizens must have rights to vote and to freely express their political values and interests.^[123] For most of the nation’s history, from the framing through the 1920s, American government was a republican democracy.^[124] Since the 1930s, however, the nation has operated as a pluralist democracy.^[125]

To a great degree, Lochner was a typical case of judicial review during the republican democratic era. Under republican democracy, courts would often review government actions to determine whether they were in pursuit of the common good (or the general welfare). Actions for the common good were permissible, while actions for partial or private interests were impermissible.^[126] In fact, before the Civil War, state courts upheld numerous police power regulations of the economic marketplace pursuant to this approach.^[127] After the war, however, industrialization, urbanization, and immigration placed the republican democratic form of government, emphasizing the virtuous pursuit of the common good, under enormous pressure.^[128] While republican democracy persisted for decades—citizens and government officials were still supposed to virtuously pursue the common good—conceptions of virtue and the common good shifted in response to the changes in American society.^[129] In particular, laissez-faire emerged to become a predominant political ideology during the late nineteenth century, and this ideological shift influenced the Supreme Court.^[130] Unlike during the antebellum period, the postbellum Court began to infuse its understanding of the common good with laissez-faire thinking. In other words, the Court’s conception of the common good narrowed in cases of economic regulation.^[131] Lochner was such a case.^[132]

The Court, with a majority opinion by Justice Rufus Peckham, acknowledged the State could exercise its police power to regulate property and (economic) liberty if in pursuit of the common good.^[133] But the Court would not allow such regulations if passed under the “mere pretext” of the common good.^[134] In other words, the Justices were suspicious of economic restrictions and ultimately found the New York statute protected only partial or private interests rather than the common good.^[135] The Justices noted that “[i]t seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his [employees] (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the [employees].”^[136]

Holmes’s dissent is understood best in conjunction with the other dissent, written by Justice John M. Harlan.^[137] Holmes and Harlan both agreed with Peckham’s basic approach—the case revolved around the fundamental principles of republican democracy—but they disagreed with Peckham’s application of those principles. Like Peckham, Harlan focused on the interplay between the state’s police power, on the one side, and property and liberty, on the other: “liberty of contract [like other liberties] is subject to such regulations as the state may reasonably prescribe for the common good and the well-being of society.”^[138] Whereas the Court majority largely ignored extensive empirical evidence concerning the health of bakers—Peckham’s opinion assumed the job of a baker was not “unhealthy” to “the common understanding”^[139]—Harlan considered the evidence and concluded “there is room for debate and for an honest difference of opinion.”^[140] Harlan, therefore, argued the Court should have deferred to the legislative judgment.^[141] Harlan explained that “[w]e are not to presume that the State of New York has acted in bad faith. Nor can we assume that its legislature acted without due deliberation, or that it did not determine this question upon the fullest attainable information, and for the common good.”^[142]

Holmes’s dissent was similar, but he devoted far less attention to the empirical evidence. His minimal concern with the evidence led him to conclude “[a] reasonable man might think [the disputed statute] a proper measure on the score of health.”^[143] Based on that possibility, Holmes argued, like Harlan, that the Court should have deferred to the legislative judgment about the common good. Unlike the Court majority, he refused to limit the common good in accordance with laissez-faire ideology. Hence, he cited numerous police power regulations that courts had previously upheld as promoting the common good:

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.^[144]

From Holmes’s perspective, in other words, the Constitution did not constitutionalize “laissez faire,”^[145] or as he more colorfully phrased it: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”^[146]

In sum, Holmes’s Lochner dissent is best read as harmonizing with basic principles of republican democracy: the Court should review whether the government was pursuing the common good. He disagreed with the Court about the definition of the common good and the proper degree of deference to be shown to the legislative judgment. In these respects, he was largely echoing Harlan’s dissent. Holmes’s dissent, from this perspective, was not particularly original; it was not striking out in a new direction (for instance, introducing a new two-track system of review). In fact, in numerous other cases, Holmes unsurprisingly followed republican democratic principles.^[147]

As Greene acknowledges, the Court’s general approach to constitutional rights and judicial review would not fully change until the late 1930s.^[148] According to Greene, the one person most responsible for this change, particularly its deleterious aspects, was Frankfurter.^[149] Yet, once again, as with Greene’s depiction of Lochner and Holmes’s dissent, Greene overly simplifies a complex historical transition. As already discussed, the nation had operated as a republican democracy since its founding, but by the 1920s, the republican democratic form of government had long been under stress from the forces of industrialization, urbanization, and immigration.^[150] The agrarian, rural, and relatively homogeneous (white Protestant) American society that had sustained republican democracy had dissipated.^[151] When the Great Depression struck at the end of the twenties, the republican democratic regime finally collapsed. Under republican democracy, an ostensible lack of civic virtue could preclude one from participating in democratic processes. Partly on this ground, the exclusion of women, Black Americans, Catholic immigrants, and other peripheral groups had supposedly been justified during long stretches of American history.^[152] President Franklin D. Roosevelt and the New Dealers changed American government by welcoming many ethnic and immigrant urbanites, previously discouraged from partaking in national politics, to participate as voters and, in some cases, as government officials.^[153] In other words, the practice of democratic politics changed on the ground: rather than pursuing the common good—which had typically reflected powerful and mainstream white, Protestant interests and values—democratic politics now opened to the interests and values of the more diverse American population. Government goals were being determined through interest-group bargaining, coalition building, negotiation, and compromise.^[154]

Two key points about the transition to pluralist democracy should be emphasized. First, this new form of democracy initially emerged as a political practice and social reality. By the late 1930s, however, scholars had begun to explain and justify the new democratic practice in a coherent theory. The crux of pluralist democracy, according to the theorists, lay in the following of processes that supposedly allowed all citizens to voice their particular values and interests within a free and open democratic arena.^[155] Free expression, therefore, became a constitutional lodestar: each individual citizen supposedly had an equal right to express his or her respective political interests and values.^[156] Theorists recognized that the political pursuit of self-interest and the formation of interest groups was normal and legitimate. Legislative actions justifiably arose from negotiation, persuasion, and the exertion of pressure through democratic channels.^[157] After World War II, numerous political theorists celebrated pluralist democracy as the best means for accommodating “our multi-group society.”^[158]

Second, even as pluralist democratic practices and the New Deal unfolded, many conservative old-stock Americans did not quietly accept the new system. Most important, the conservative Supreme Court Justices continued to apply republican democratic principles until 1937 and in doing so, invalidated numerous New Deal economic programs.^[159] But after FDR was reelected in 1936 in a landslide, he introduced a court-packing plan that would have increased the size of the Court from nine to a maximum of fifteen Justices.^[160] His message was clear: If the Court insisted on blocking the New Deal, he would change the makeup of the Court. Soon, in early 1937, the moderately conservative Justice Owen Roberts started to vote consistently with the more progressive Justices to uphold New Deal statutes.^[161] Before long, the conservative Justices began to retire, enabling FDR to appoint new Justices supportive of pluralist democracy and the New Deal.^[162] The Court, at this point, fully accepted pluralist democracy and repudiated republican democratic judicial review.

The repudiation of republican democracy created a problem for the Court. Since judicial review had largely revolved around the republican democratic principles of virtue and the common good, how should the Court structure judicial review under pluralist democracy? Initially, one point was unequivocal: in response to the conservative Justices’ prior opposition to the New Deal, the Court began deferring to the democratic process in cases challenging the scope of congressional power.^[163] Yet, the Justices would not consistently defer to the government in other types of cases. Over the next several years, then, the Justices developed three different approaches to judicial review. First, the Court would in effect police the pluralist democratic process. If the process was not fair and open, the Justices saw less reason to defer to legislative judgments. In fact, before the 1930s, the Justices rarely even mentioned democracy, but after the 1937 transition, they regularly discussed democratic participation.^[164] Second, the Justices began developing and applying balancing tests in a variety of constitutional contexts.^[165] Third, the Justices began identifying and protecting what might be called no-fly zones: the Court specified certain rights and liberties as too important to leave to the vicissitudes of the pluralist democratic process.^[166] These rights and liberties—such as the free exercise of religion and free speech—were therefore placed beyond the reach of democratic majorities. During the 1940s, the Justices occasionally referred to these rights and liberties as the “preferred . . . freedoms.”^[167]

Greene refers to these rights and liberties as true rights.^[168] Regardless, whether they are called true rights, no-fly zones, or preferred freedoms, the burgeoning judicial protection of these rights is more complicated than Greene suggests. Recall that he states that such “rights are meant to protect minorities and dissenters from the tyranny of the majority,” and that Brown v. Board of Education manifested the victory of this understanding of rights.^[169] But after 1937, it was not only minorities, dissenters, and their lawyers who were urging the courts to recognize and protect rights. Once pluralist democracy had become entrenched, conservative lawyers also advocated to protect individual rights and liberties as they realized the judicial enforcement of rights could potentially protect against the new majoritarian threat posed by the democratic empowerment of immigrants and other peripheral groups.^[170] Moreover, as Derrick Bell and Mary Dudziak have shown, the Court’s decision in Brown should not be reduced to a heroic effort at protecting Black Americans.^[171] To the contrary, the Court decided Brown in 1954 as a Cold War imperative. The United States was locked in Cold War struggle with the Soviet Union, and Jim Crow laws undermined the nation’s efforts to ally with emerging African nations inhabited by people of color. For national security purposes, the Court’s decision in Brown was needed to lend credibility to the nation’s claim that democracy was superior to communism.^[172] As Robert Dahl subsequently concluded, based on an empirical study of Supreme Court cases, the Court did not protect minorities from majoritarian overreaching: despite popular assumptions, “it would appear to be somewhat naive to assume that the Supreme Court either would or could play the role of Galahad.”^[173] Instead, Dahl emphasized, the Court was an integral “part of the dominant national alliance.”^[174]

To be clear, this Article does not comprehensively cover the history of the political and jurisprudential transitions of the 1930s. Numerous books have been written about this time period—and of course, many historians and constitutional scholars disagree about the precise changes and their causes.^[175] The crucial point, though, is that these changes were highly complex, arising from a multitude of interrelated social, cultural, and economic forces. Why, then, does Greene depict this era in such a unidimensional and reductionist manner? The disturbing yet unavoidable answer is antisemitism.

B. Frankfurter and Antisemitism

Greene’s antisemitism is unconscious or soft: he identifies Frankfurter as Jewish and characterizes him pursuant to traditional antisemitic tropes. Frankfurter comes across as a superhuman striver leading a conspiracy to corrupt American constitutional rights.^[176] Greene then constructs a narrative of the 1930s around this antisemitic depiction of Frankfurter.^[177]

Antisemitism is a serious charge. To support it, I review Greene’s argument about Frankfurter in detail. Greene mentions Frankfurter once early in the book, and then again on the second page of the chapter entitled, “Rightsism.”^[178] On the very next page, he identifies Frankfurter as being Jewish.^[179] One page later, Greene reminds the reader that Frankfurter is Jewish.^[180] Let’s examine, then, how Greene otherwise describes Frankfurter. When Greene first mentions Frankfurter in the “Rightsism” chapter, Greene describes him as a “New Deal consigliere . . . [and] operator par excellence.”^[181] On the next page, Greene acknowledges that Frankfurter “attended Harvard Law School . . . [and] graduated first in his class” but then describes his first post-law school job in derogatory terms: Frankfurter “carried the briefcase of Henry Stimson, who was the U.S. attorney in Manhattan.”^[182] Not clear enough? Greene explicitly labels Frankfurter as “[a]n inveterate sycophant and social climber, [who] craved proximity to power [and] also craved acceptance.”^[183]

Notice, first of all, that while Greene discusses the backgrounds of multiple individuals, sometimes in harsh terms,^[184] only Frankfurter’s religion is mentioned, as if it is unusually significant.^[185] To be certain, an author might more sympathetically mention Frankfurter’s religion. For instance, in Two Jewish Justices: Outcasts in the Promised Land, Robert A. Burt emphasizes that, because of widespread antisemitism, Jews in early twentieth-century America had limited options, “to act as either pariah or parvenu; because . . . they were barred from true insider status.”^[186] And mainstream white, Christian society unquestionably viewed Frankfurter as a parvenu, as was often true for successful Jews during the first half of the twentieth century.^[187] For instance, after Frankfurter was appointed to the Supreme Court in 1939, Senator William Borah received letters “accusing Frankfurter of being ‘a dangerous radical’ and ‘a Jew of frankly Communistic activities.’”^[188] Another letter writer would have preferred “a person, who first of all is a native born American of pioneer stock—and a devout Christian.”^[189] Yet another writer stated that “a Jew has no right in our courts. We want white men there.”^[190]

More to the point, describing a Jewish individual as a sycophantic social climber is standard antisemitism. A common trope, Guy Stern explains, is to depict the Jew as “the intruder” in American society who is an insatiable “social climber.”^[191] In accordance with this trope, Greene continues by describing Frankfurter’s relationship with Holmes, who was forty-two years older than Frankfurter and a Justice on the Supreme Court since before Frankfurter even started law school. “Frankfurter wrote a great many letters to Holmes,” Greene writes, “always fawning, almost nauseatingly obsequious.”^[192] As if this description were insufficient to make his point, Greene then identifies one letter in particular as “a florid love letter to the old jurist.”^[193]

These descriptions of Frankfurter as the distasteful social climber are bad enough, but Greene does not stop there. An inveterate and invidious antisemitic trope is to identify Jews as leading and participating in conspiracies—for instance, to control governments, to control banking and money, and to otherwise harm white, Christian society.^[194] The American Jewish Committee explains:

From medieval times until the present day, conspiracy theories have spread antisemitic beliefs that blame Jews for the world’s worst tragedies. Jews were accused of poisoning wells in 14th century Europe causing the Black Death and in 21st century America, they were charged with being the “hidden hand” responsible for the 9/11 terrorist attacks.^[195]

In Greene’s historical narrative, Frankfurter leads a conspiracy that turns the Court toward the harmful rightsist approach, thus corrupting American constitutional government. Using his position as “the first Jewish professor at Harvard Law School” and then later as a friend and adviser to FDR, Frankfurter led a conspiracy of “students and friends,” sometimes referred to as his “‘happy hot dogs,’ [who] numbered in the hundreds.”^[196] Owing Frankfurter their “loyalty,” these conspirators “would check in regularly with Frankfurter to receive their marching orders on pain of excommunication from his network.”^[197] According to Greene, “by reputation Frankfurter became an operator of nearly supernatural powers.”^[198] Thus, Frankfurter was the “high priest” of the conspiracy: “His fingerprints were everywhere in the federal government during the New Deal era.”^[199]

As Greene depicts him, Frankfurter is the puppet master who controls all within his “web.”^[200] According to Greene, numerous prominent individuals in American constitutional history owed their careers to Frankfurter and therefore were in his debt—notwithstanding whatever qualifications and achievements these individuals might have compiled apart from their association with Frankfurter.^[201] For example, “[Constitutional scholar] Paul Freund . . . owed his Brandeis clerkship, his government service, and his teaching career to Frankfurter.”^[202] Meanwhile, Frankfurter “gifted a Brandeis clerkship” to Henry Hart, another renowned legal scholar.^[203] And “[t]he legendary Harvard Law School dean Erwin Griswold . . . owed his job in the solicitor general’s office in the 1930s” to Frankfurter.^[204] Another scholar, Charles Fairman, “was firmly in the fold of Frankfurter.”^[205] And in the end, Frankfurter’s control and “hustle . . . paid off.”^[206] The Court adopted the rightsist or two-track approach to constitutional rights, to the nation’s great detriment.

To be sure, Greene cites and quotes contemporary descriptions of Frankfurter to support his depiction. Some newspapers, Greene explains, “offered unflattering comparisons [of Frankfurter] to Shakespeare’s Iago or to Rasputin, the Russian mystic and tsar whisperer.”^[207] The leader of the National Recovery Administration “called Frankfurter ‘the most influential single individual in the United States’ in the 1930s.”^[208] And the leader of the Agricultural Adjustment Administration “complained of the ‘plague’ of young Washington lawyers who ‘all claimed to be friends of somebody or other and mostly of Felix Frankfurter.’”^[209]

The problem for Greene is that, during the first half of the twentieth century, antisemitism in American society was common, socially accepted, and often overt.^[210] Consequently, to find contemporary denunciations of prominent or successful American Jews during that era is all too predictable. In fact, Leonard Dinnerstein, a historian of American antisemitism, concludes that “[t]he worst period of American antisemitism was sandwiched between the ends of World War I and World War II.”^[211] For example, Harvard President A. Lawrence Lowell advocated for quotas in 1922 to restrict Jewish admissions.^[212] Many white, Christian Americans agreed with Lowell’s assessment that Jews had “unpleasant personalities,” were “tactless,” “pushy,” “dirty,” and would undermine the “social prestige” of the university.^[213] Opponents of FDR “linked his administration with some kind of nefarious Jewish conspiracy,” denounced the New Deal as the “Jew Deal,” and cited Frankfurter’s friendship with FDR “as proof of Jewish control.”^[214] Given such widespread attitudes, the prominent journalist and scholar, H.L. Mencken, unsurprisingly wrote:

[T]he Jews could be put down very plausibly as the most unpleasant race ever heard of. As commonly encountered they lack many of the qualities that mark the civilized man: courage, dignity, incorruptibility, ease, confidence. They have vanity without pride, voluptuousness without taste, and learning without wisdom. Their fortitude, such as it is, is wasted upon puerile objects, and their charity is mainly a form of display.^[215]

This was the world Frankfurter lived and worked in. To have a chance for success in American mainstream society, Jews like Frankfurter needed to erase any strong identification with or markings of their ethnic or religious backgrounds.^[216] And even then, white, Christian Americans would often target and condemn Frankfurter and other Jews with antisemitic stereotypes. To give one more example, when Frankfurter was invited to speak at an elite Harvard undergraduate club in 1920—when he was on the Harvard faculty—several alumni refused to attend because they did not want to socialize with a Jew.^[217] As Robert A. Burt notes, Frankfurter lived at a time when “Jewishness had assumed an openly stigmatized meaning in American life,” and antisemitism “had become a palpable force.”^[218] As of 1929, Frankfurter remained the only Jew on the Harvard Law School faculty.^[219] In sum, when Greene cites and quotes contemporary antisemitic descriptions of Frankfurter, the evidence does not prove that Frankfurter was truly guilty of the supposed offenses. If these references show anything, it is that many white, Christian Americans of the early twentieth century were quick to condemn Jewish Americans in accordance with antisemitic tropes.^[220]

Greene’s antisemitic depiction of Frankfurter does not undermine the entirety of his argument in favor of proportionality. It does, however, undermine his historical narrative of twentieth-century constitutional jurisprudence. His antisemitism is not incidental; it is central to the history he presents. Frankfurter’s ostensibly Jewish characteristics are why Greene renders him such a key figure in the transition to rightsism. Because Greene attributes so much heavy lifting to Frankfurter, Greene disregards the significant changes in democratic practices and theory that contributed far more (than Frankfurter) to the remarkable changes in pre-World War II constitutional law.^[221]

IV. Conclusion: Changing the Court’s Decision Making

Greene’s thesis is that the Court’s repudiation of rightsism and adoption of proportionality would improve the Court’s decision making and benefit American democracy and society.^[222] I agree, in part. Proportionality could engender more just and progressive judicial decisions. It could lead to a greater judicial focus on context and facts and less pontification about legal formalisms, including the original meaning of the Constitution in 1788, 1791, 1868, or any other time.^[223] But proportionality would produce these benefits only if the proper justices were applying it. That condition—having the proper personnel on the Court—is crucial.

Ultimately, then, I emphasize manifestations of antisemitism in Greene’s argument for two reasons. First, politics writ small operates whenever political ideology, cultural beliefs, religious orientation, or other aspects of an individual’s background influences or shapes that person’s interpretation of historical documents, legal texts, or other data. In this manner, antisemitism animates and undermines Greene’s historical explanation for the Court’s transformation of rights in the twentieth century. Antisemitism therefore shapes Greene’s argument similarly to how politics would shape the Justices’ application of a proportionality approach to rights. In other words, when Greene suggests the Justices’ adoption of proportionality would, standing alone, benefit the Court and American society, he disregards (or diminishes) the degree to which politics would influence the Justices’ interpretation and application of proportionality. Even if the Court were to adopt proportionality, the Justices’ conservatism would continue working in the background (if not the foreground, as politics writ large) and would generate conservative outcomes.

Second, I emphasize antisemitism in Greene’s argument because silence in the face of antisemitism will likely breed more antisemitism. Antisemitism can work in the forefront or the background. For example, in the forefront, think of the “Unite the Right” rally in Charlottesville, Virginia, when white supremacists chanted, “Jews will not replace us.”^[224] Background (or unconscious) antisemitism is more insidious. It can reproduce when people utter, write, hear, and read antisemitic tropes without recognition or awareness. Such people are then likely to repeat the tropes and spread the antisemitism.^[225] Thus, if we recognize antisemitism, we should resist the temptation to remain silent. To be sure, silence often seems easier than confrontation. But the Anti-Defamation League cautions: “Cultures of silence and complacent attitudes have helped antisemitism to gain new currency in the United States and around the world. Without the requisite knowledge to recognize this evil, we are at a disadvantage to stop it.”^[226]

Law and politics both matter in the law–politics dynamic of constitutional interpretation and Supreme Court decision making. Therefore, conceptualizing rights through the legal prism of proportionality matters, but so does the politics of those interpreting and applying proportionality. In short, the only way to realize the potential benefits of proportionality would be to change the politics of the Court, and the most effective means for changing the Court’s politics would be to change its personnel. While a full argument is beyond the scope of this essay, the most immediate way to change the Court’s personnel would be to add seats and appoint (nominate and confirm) new progressive Justices.^[227] If a majority of progressive Justices do not control the Court, then talk of proportionality and the reconceptualization of rights amount to no more than scholarly musings.