From World War I to World War II and Cold War

Contrary to the hopes of Woodrow Wilson, World War I did not make the world safe for democracy. Indeed, communists took power in Russia, leading to the first red scare in the United States and creating fertile soil for the rise of Nazism in Germany. As soon as the Allies had defeated Germany, Italy, and Japan in World War II, the East and West split into rival camps, with Russia gorging on Eastern European states. Communism spread to China, and the Soviet Union and China would soon acquire the nuclear technology that the West had employed to end the war.

The resulting cold war was a time when fears often trumped hopes, and political associations no longer were considered mere private matters. Congress not only adopted laws designed to punish alleged subversion, but it also conducted investigations to root out would-be subversives. It made it illegal to organize parties to overthrow the government, created blacklists of potential enemies, and enacted loyalty oaths. Although the Supreme Court sometimes bowed to popular pressure, over time it began to establish a set of precedents that increasingly protected civil rights and liberties.

The Court weathered the storm when Franklin D. Roosevelt had threatened to pack it with new members in 1937 to get the New Deal off the ground. After initial resistance to New Deal legislation, the Court switched gears and only rarely struck down legislation dealing with economic matters; it required only that governments show a rational basis for such legislation and subjected it to minimal scrutiny. It also increasingly gave greater scrutiny to laws that impinged upon fundamental rights (like those of the First Amendment) or involved suspect categories (including racial and religious classifications). Many scholars trace this development to Justice Harlan Fiske Stone’s footnote four in United States v. Carolene Products Co. (1938) that contains an embryonic element of much of the Court’s subsequent agenda for applying a more stringent form of judicial review in individual liberty cases. Stone suggested that the Court should apply stricter scrutiny to legislation that violated specific provisions of the Bill of Rights and the Fourteenth Amendment, restricted political processes, or was directed at “discrete and insular minorities.”