Fred Rodell and the End of the Supreme Court

The reversal of Roe v. Wade this June is yet another example of the conservative nature of the Supreme Court. For the past two decades, the Court has passed decision after decision attacking the fundamental tenets of liberals in this country, from gun control to abortion rights, campaign spending, and voting. The Court is an entrenched part of the conservative movement, with its past three members all vetted by the Federalist Society. It will likely be the most powerful impediment to liberal legislation for the next generation, if not longer.

And yet, the public has retained much of its confidence in the workings of the Court. Forty-four percent of the public has a favorable opinion of the Supreme Court according to a May 25th poll. That number has dropped by ten percent in the wake of the Dobbs abortion rights leak. But it is still significantly higher than the approval rating for Congress itself and four points higher than Joe Biden’s approval rating. Prior to the Dobbs leak, 44% of Democrats approved of the Court even after it reached a 6–3 majority in the wake of Amy Coney Barrett’s confirmation.

Despite their recent misgivings, Democrats still have not united behind a plan to reform the nation’s highest court. Many liberals support substantial changes to the makeup of the Supreme Court. But the party’s centrists have not considered the option. “With packing the courts, I’m not voting for that,” was Joe Manchin’s answer to a question about expanding the Court. Kyrsten Sinema also denounced any plans to add new justices by Democrats as “court-packing.” Even Joe Biden, the leader of the party and a liberal on many issues, did not explicitly support a plan to reform the Court in 2020 or 2021, instead leaving the work to a commission that “did not offer specific recommendations,” according to a New York Times article summarizing its report.

Eighty years ago, this reluctance to reform the Supreme Court looked impossible. The Court was a clear boon to conservative ideas and political programs. A group of young lawyers was challenging its lofty position, however. The legal realists were piercing through the aura of the Court to point out the pretensions and political aims of this protected chamber. Among these, one stood out for his vehemence to the Court’s position and his outright challenge of judicial review. Fred Rodell was poised to be the beginning of the end of the Court’s power and influence in American life. The story of his work and the surprising backlash help show the enduring power of the Court in American life and the unlikelihood of success for any plans for reform.

Fred Rodell was born in 1907 in Pennsylvania. He worked his way up through a small regional college before reaching Yale Law School. Rodell’s formative experiences helped shape the approach he would later have to the law. He was taught at Yale by a group of mentors including William O. Douglas, arguably the most liberal Supreme Court justice in American history.

The Yale group helped introduce him to the then-vogue field of legal realism, an approach that emphasized history, politics, and the real-world outcome of the law over obscure terms and the close reading of texts. Rodell argued that the older natural law approach was “authoritarian… a system of ethics which finds its sole source and its outer limits in the minds of men is a contradiction in terms.”

From his position at Yale, Rodell began his decades-long assault on the legal profession. He was a prolific writer, publishing five books and dozens of articles in a variety of magazines, journals, and law reviews. In each, Rodell analyzed legal and topical events with his acerbic wit and dry sense of humor. His approach led to a reputation as the “bad boy of American legal writing,” as described by Charles Alan Wright. Rodell’s early work struck at the heart of the profession, including jeremiads against lawyers and the law review. Rodell once quipped, “There are two things wrong with most legal writing. One is its style. The other is its content.” He also made an arguably serious proposal to ban the practice of law, instead having commissions of experts in different fields (businesses, personal relationships, etc.) handle conflicts related to those fields. (jstor article, 371–372)

In 1955, Rodell trained his fire on the Supreme Court. Nine Men argued that the mythology of the Court was just as wrongheaded and dangerous as the mythos around all lawyers. It was the only branch of government that “depends for much of its immense influence on its prestige as a semi-sacred institution” which preserves its prestige with uniforms and rituals “rather than earning it, year after working year, by the dignity and wisdom of what it is and does.” Rodell went on to catalog and dissect the Court’s history and reputation. Most notable among the myths surrounding the Court was its role in protecting the minority, men and women who would not otherwise have their rights protected by majoritarian institutions. Rodell wrote that contrary to its reputation, “the only minority in whose behalf the Justices have regularly and effectively used their power… is the minority of the well-to-do.”

Rodell’s argument should have been catnip to the nation’s left. Liberals had been criticizing the Court’s actions for years, sporadically since Marbury v. Madison and more systematically since the beginnings of the Progressive era. And there was good reason for the criticism. Every Supreme Court Chief Justice up to the 1950s had been a conservative. For every Louis Brandeis and William Douglas there had been a dozen justices closer to Joseph Story or Felix Frankfurter.

The Court had doomed child labor legislation, civil rights, and even restrictions on slavery in the antebellum period. The roster of liberal Court decisions prior to the 1950s was meager: a reversal of the Lochner court in 1937, the end of the all-white primary in 1944, and a smattering of other exceptions. With Rodell and his contemporaries, the left had both the means to reduce the Court’s power (a sympathetic Democratic Party) and the theory that should have brought about a significant attack on the judicial branch.

But the 1954 Brown vs. Board of Education changed all of that. In one fell swoop, Chief Justice Earl Warren, a Republican previously known for the internment of the Japanese, became a liberal icon. His decision became one of the most widely known and respected Court decisions in American history. Suddenly, it became possible for the Court to do the work of liberals, to overcome with the signing of five names problems that had vexed the country for decades.

Brown helped change the calculus for liberal reform in the United States. Prior to the 1950s, legislation was the fastest pathway to protecting minorities and the poor. The Reconstruction bills, the 1890 Force bill, and the often-debated anti-lynching bill were the crux of civil rights agitation in the country. The Supreme Court was an afterthought, more of a hindrance with the Plessy v. Ferguson verdict than a source of aid. But Earl Warren, a friend of Fred Rodell, helped the Court become one of the key focal points for civil rights agitation. The Court became an ally, one that was not subject to conservative presidents or the filibuster in the Senate. Legal realism’s attack on judicial review lost much of its liberal support with that one decision.

Rodell’s response to this shift was wobbly and questionable. He had not fully prepared for an unabashedly liberal Chief Justice. After hundreds of pages of excoriating justices in Nine Men, he showed tepid support for the tenure of Earl Warren as Chief Justice. The Brown decision was clear and direct, a “masterly performance, on every level” taken by a Chief Justice who had never been a judge and was most famous as a governor of California. Rodell predicted that with Warren, “the American dream of freedom may be reborn.” The abrupt shift in Rodell’s approach showed his confusion on how to process a liberal Court.

Fred Rodell died in 1980. He retired from Yale Law School seven years before, a relic from the heady days of legal realism in the 1930s and 1940s. At the time of his death, the academic world was grappling once again with the foundations of the legal system. The field of critical legal studies was about to be in vogue. Scholars in the 1980s deconstructed the law, lawyers, and the Supreme Court in much the same way as Rodell and the legal realists.

But following the Brown decision and the Warren Court, the ideological lines had shifted. It was now Republicans who decried “activist judges” and fought to control the power of judicial review. particularly in the case of Roe v. Wade. Momentum to diminish the Court’s power by liberals stalled once liberals thought the judicial branch was acting in their interest. A 2004 report from the liberal-leaning Brennan Center, issued for the 50th anniversary of Brown, illustrates this trend perfectly. The report argued, “the critics of Brown refined a line of attack that continues and thrives to this day: that unpopular decisions should be punished, by attacking judges, and weakening the courts that protect our rights.” A Texas Law Review article from 2019 laid out the cycle more plainly: “Only when a liberal Supreme Court majority is firmly in place and the docket of the Court has been fully transformed will a new cycle of liberal constitutional theories justifying strong judicial review emerge.”

Over the past two decades, liberals have tried valiantly to convince the nation of the Supreme Court’s biased decision-making. They have called out numerous conflicts of interest, politically motivated decisions, and violations of the originalism that so many justices have pledged allegiance to. Liberals have protested at justices’ homes, criticized their family members, shared conspiracy theories about their decision-making, and threatened to reform their institution out of existence. Despite these attacks, they still rejoice when the nine justices in their black robes pass a decision that they agree with. Fred Rodell would be aghast at their supplicant support of what he called the most irresponsible group of leaders in the entire world.