- A proposed “Court of the Union” drawn from judges of state supreme courts, with the power to review decisions of the Supreme Court with respect to “the rights reserved to the States or to the people” by the Constitution.[168]
- An amendment reserving to the states “the right to sole, and exclusive jurisdiction of public-school systems in the separate States.”[169]
None of these proposed amendments came to pass. But they demonstrate the broad range of Supreme Court reforms that have been proposed from across the political spectrum by critics of its decisions, its procedures, and, in some cases, its authority. In response to continued and frequently violent southern resistance to federal court decisions that sought to dismantle racial segregation, the Court explicitly claimed the mantle of judicial supremacy. “The major act of the Supreme Court, in the ten years after Brown, was defending its newly self-appointed role as ‘ultimate interpreter of the Constitution’ in Cooper v. Aaron.”[170] Cooper was a 1958 case in which the Court held that Arkansas officials were bound by federal court orders mandating desegregation in public schools.[171] The joint opinion, authored by all nine Justices, stated that the Supremacy Clause of the Constitution made the Court’s decisions binding on every state, overriding any state laws to the contrary.[172] The Court’s decision in Brown could “neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation,” the Court wrote.[173]
Under Chief Justice Earl Warren’s tenure from 1953 to 1969, the Court became a focus of public debate because “it displayed a willingness to confront a host of important issues head-on and become, in important ways, a significant agenda setter for domestic policy.”[174] For some observers, the Warren Court stood for the protection of civil rights and civil liberties, including the rights of criminal defendants as well as due process rights within the administrative state. Others took a more skeptical view, warning of the risks that judicial activism might pose when pitted against policies adopted by the people’s elected representatives. An “Impeach Earl Warren” movement, led by several newly formed right-wing groups, placed advertisements and planted billboards throughout the U.S.[175]
The Court was met with unusually sustained and pointed criticism in response to a set of six cases that were argued together in November 1963 and decided in June 1964. Known collectively as “the Reapportionment Cases,” the most prominent of which were Reynolds v. Sims[176] and Lucas v. Forty-Fourth General Assembly of Colorado,[177] the decisions effectively invalidated the apportionment of nearly every state legislature. Rather than allocating representatives by political subdivisions such as the county, the Constitution required a
