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'Throughline' Examines When The Supreme Court Got Ultimate Power

RACHEL MARTIN, HOST:

In the federal court system, the Supreme Court has the final say on the law of the land, making calls on health care, who we marry, even who we choose as president. But the Supreme Court didn't always have this ultimate power. Rund Abdelfatah and Ramtin Arablouei over at NPR's history podcast Throughline wanted to know how the court got so influential and how that shift in power makes who was on the court so important to how we live our lives. Here's what they found out.

(SOUNDBITE OF ARCHIVED RECORDING)

EARL WARREN: I believe that we can and that we must restore integrity in government and the confidence of people in the integrity of their government.

RUND ABDELFATAH, BYLINE: This is the voice of Chief Justice Earl Warren. He presided over the Supreme Court from 1953 to 1969, and under his leadership, the court expanded its power like never before.

(SOUNDBITE OF MONTAGE)

UNIDENTIFIED PERSON #1: I think on this day, many of us didn't realize just how important our movement would come to be.

(CROSSTALK)

UNIDENTIFIED PERSON #2: The real invader is integration.

UNIDENTIFIED PERSON #3: Unless we integrate, we shall very quickly disintegrate.

MARTIN LUTHER KING JR: And we as a people would get to the promised land. Mine eyes have seen the glory of the coming of the Lord.

UNIDENTIFIED SINGERS: (Singing) America.

(SOUNDBITE OF MUSIC)

LUCAS POWE JR: The '60s are a time of incredible ferment because African Americans in the South are starting to demand the rights that the Constitution gave them a century earlier, and the South is fighting to maintain white supremacy.

RAMTIN ARABLOUEI, BYLINE: That's Lucas Powe Jr. He's a law and government professor at the University of Texas at Austin, and he's the author of the book "The Warren Court And American Politics."

POWE: And the court is at the forefront of the national government in trying to bring civil rights to the fore.

ABDELFATAH: During the 1960s, the Supreme Court started getting case after case relating to civil rights issues, and in case after case, the court ruled in favor of expanding civil rights nationwide. It was slowly setting the precedent on the most important issue of the day.

ARABLOUEI: And the real tipping point came in 1963.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #4: President Kennedy is reported to be fighting for his life in a Dallas hospital, but reports conflict. CBS says he is dead.

ARABLOUEI: After John F. Kennedy was assassinated, Lyndon B. Johnson replaced him as president.

POWE: When Lyndon Johnson takes the presidency, he tells the country that the legacy of John Kennedy is civil rights, and to cement it, we need the Civil Rights Act. And the court can look at the Civil Rights Act and say, we were right, and now Congress agrees that we were right.

ABDELFATAH: Now, Congress and the president were agreeing with the vision first proposed by the court, a desegregated nation with equal rights for all. This was a decade after the Brown v. Board of Education case ruling that segregated public schools were unconstitutional.

POWE: Lyndon Johnson, at one time a couple of years later, stated, never in American history have the three branches of government worked so well together.

ABDELFATAH: In other words, there was no pushback. All three branches had the same shared goals, which meant they weren't going to stand in each other's way.

ARABLOUEI: And just as fast as the federal government's power was growing, states' power was shrinking.

POWE: There's no doubt that the court has very little respect for states' rights. So what you have is a nationalization of criminal procedure, forcing a number of states - all of the Southern states but a number of Northern states - to change the way that they do business.

ABDELFATAH: In the eyes of liberals, the court was behind a lot of the success of the civil rights era. Plus, there was now a Black Supreme Court justice, the first ever.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #5: Historians will note this hour at the White House. In a Rose Garden ceremony, a 58-year-old great-grandson of a slave is nominated by President Johnson to be a Supreme Court justice. He is Solicitor General Thurgood Marshall, acknowledged the best-known Negro lawyer of the century.

ABDELFATAH: As for conservatives, they were just biding their time till the court flipped conservative again. They hated the decisions of the Warren Court, but they were still totally fine with the principle of what's called judicial supremacy - the idea that the Supreme Court has the final say on what's constitutional.

LARRY KRAMER: So that settles that who-has-final-authority debate.

ARABLOUEI: This is Larry Kramer, author of the book "The People Themselves: Popular Constitutionalism And Judicial Review."

KRAMER: And the debate shifts from who has final interpretive authority - now everybody says it's the court - to how the constitution should be interpreted.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #6: At almost midday Eastern time, NBC News projected Richard Nixon the 37th president of the United States when it became evident...

ARABLOUEI: After Richard Nixon, a Republican, was elected president in 1968, the tables began to turn on the court. Over the next few years, Earl Warren and several other liberal justices would leave the court, and Nixon would replace them with more conservative justices.

ABDELFATAH: As the Warren Court era wound down, the court tried to advance individual rights. Its swan song was Roe v. Wade, in which the court ruled that restricting access to safe and legal abortion was unconstitutional.

POWE: Roe v. Wade is the last gasp of that reforming liberalism.

ABDELFATAH: And from that point on...

KRAMER: It's been a steady march to the right in terms of the court's ideology. The irony is the subsequent courts have been using the Warren Court's credibility, the court's credibility from the Warren Court, to undo everything the Warren Court accomplished over the last 50 years.

POWE: Functionally, they're saying, you guys showed us how to do it. Now we're going to do it our way. You had your Warren Court. We want our Warren Court. And that may be what the three Trump appointees to the Supreme Court will provide, that now the Republicans may have their Warren Court.

(SOUNDBITE OF RAMTIN ARABLOUEI AND DROP ELECTRIC'S "THE PARTY OF LINCOLN")

MARTIN: That was Lucas Powe Jr. speaking with Throughline hosts Rund Abdelfatah and Ramtin Arablouei. MORNING EDITION producer Victoria Whitley-Berry contributed to the full episode about the Supreme Court. Check it out wherever you listen to podcasts.

(SOUNDBITE OF RAMTIN ARABLOUEI AND DROP ELECTRIC'S "THE PARTY OF LINCOLN") Transcript provided by NPR, Copyright NPR.