The Supreme Court: The Limits That Create Liberty & The Liberty That Creates Limits

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generating those thunderbolts pays $39,500 a year (plus a generous flow of hate mail), and a Justice can retire on full pay at 65. But the perquisites stop there. Except for Warren's Government Cadillac, no Justice gets a free car, house, servants or entertainment allowance; only Warren gets security protection. For novices used to worldlier ways, the monastic life is often a harsh surprise. Justice Arthur Goldberg, formerly the fire-chief U.S. Labor Secretary, is still restless. "The Secretary's phone never stops ringing," muses Goldberg. "The Justice's phone never rings—even his best friends won't call him."

The work of a Supreme Court Justice is so intellectually demanding, that when Potter Stewart arrived from a grueling enough U.S. appeals court in 1958, his first reaction was, "I can't do this." In 1962, after only five years on the bench, the strain forced Justice Charles Whittaker to retire, leaving the field to rugged ex-Football Star Byron White. Though the Court has overruled itself about 150 times, the big headache remains the search for principles that lower courts can follow as long as possible. Yet a Justice charged with being the final authority on issues as combustible as obscenity and miscegenation cannot simply look up the answers in a law book. All the written Constitution gives him is a scant 7,000 words of Delphic injunctions and 18th century specifics. To this he must add all he can muster of history, judgment and personal wisdom—the highest kind of statesmanship. Whatever the Constitution's framers envisioned, mused Justice Robert H. Jackson, "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."

Opening a Door. Apart from Article I's commerce clause, the fount of national regulatory power, no constitutional dreams have been harder to divine than the Bill of Rights, which the Court was called upon to invoke against the states in an 1833 Maryland case (Barron v. Baltimore). Quickly recoiling from that idea, the Court held that the Bill applied only against the Federal Government. After that, the states were free to ignore—and many did—the Constitution's most basic guarantees of civil liberties.

Then came the Civil War's great gift to the Constitution, the 14th Amendment, designed mainly to prevent Southern states from abusing Negroes. It was not long before judicial activists were presenting the argument that Black himself has since so hotly defended: that the 14th Amendment's due-process clause "incorporated" all the protections of the Bill of Rights and imposed them on the states. The Court disagreed, but over the years it slowly began to push the First Amendment's "preferred freedoms" of speech and press through the 14th Amendment door and onto the states as part of what Justice Benjamin Cardozo called a national "scheme of ordered liberty."

From the 1890s to the 1930s, the Court was so concerned with the welfare of American business that it used the 14th Amendment mainly to protect corporations as "persons," striking down all sorts of state laws regulating business on the grounds that they violated "liberty of contract." New York was forbidden to set a ten-hour day for bakers; out went minimum-wage laws for women and