Throughout the 19th century, the Supreme Court had taken a 'constructionist' approach to the constitution. Constructionism is where the courts construe the constitution in a literal sense, with a cautious approach (linked with the Conservative ideal). F. Roosevelt wanted the Supreme Court to take a more 'activist' approach; this is where the constitution is interpreted loosely, usually in a more flexible, liberal manner. Once again, the two main ideologies 'Conservatism' and 'Liberalism' had found a way to confront each other.
To assess whether there is continuity in the American judicial system on the matter of civil liberties, all three main courts must be looked at (these courts are named after their Chief Justice's, respectfully). The biggest period of judicial activism was in the Warren court [1954-69] named after the chief justice Warren. On the issue of race, the Supreme Court overturned segregated schooling in the case of Brown Vs Board of Education, Topeka, Kansas City 1954. It argued that 'separate' was inherently 'unequal', overturning the 1896 Plessy Vs Ferguson 'separate but equal' judgement.
In doing this, the Supreme Court made the whole issue of integrated schooling a federal issue, paving the way for congressional legislation. And the constitutional clause 'equality before the laws' was interpreted more broadly as to include equality in general. On the matter of rights of the accused, the court had acted in an equal activist and liberal way as on the issue of race. In Gideon Vs Wainwright 1963, the court established that the poor should not be at a disadvantage in court, and therefore legal aid was established in order to finance litigation for those who could not afford it.
In Escobedo Vs Illinois 1964, the right to a lawyer before trial was established. And in Miranda Vs Arizona 1966, the admissibility of confessions was restricted. On the issue of religion in state schools, the court upheld the strict separation of church and state, freedom of worship and religion (amendment one) were seen as relevant here. And in Engel Vs Vitale 1962, religious teaching in state schools was banned due to the 'freedom of religion' clause in the constitution.
The Supreme Court's decisions in the above cases obviously suggest that the court was a taking a more activist and liberal approach to the constitution. Subsequently, a new court under a new chief of justice had arrived, the Burger Court 1969-86. This was seen as a court in transition, part judicial activist, and part judicial restraint (constructionist). On the issue of race, the Burger court upheld 'bussing' (integrating different races of children in school through bussing) in the 1971 Swann Vs Charlotte – Macklenbury Board of Education.
Although this upheld liberal values a heavy blow was struck against the 'reserved places' policy, (where black people were being granted places at university despite the fact that more qualified white people were being turned away on the basis of their skin colour). This was brought to court in the case of the University of California Vs Alan Bakke 1978. The result of this case seemed to uphold a more conservative ideal. On the issue of the rights of the accused the Burger court upheld Warren judgements but allowed a 'good faith' exception to the principle established in Miranda in the case of Harris Vs New York 1971.
The Burger court acted quite liberal and activist on the issue of religion in schools, and banned the traditional 1-minute silent prayer. On the very controversial issue of abortion, the Burger court allowed the practice to take place due to the broadly interpreted 'Right to privacy' clause Roe Vs Wade 1973. However, the courts then later established that the states did not have to provide facilities. Under the 1st amendment, freedom of speech was used as a basis to uphold the New York Time's publication of leaked pentagon papers in US Vs NY Times 1971.
In addition, freedom of speech was claimed in the case of the US Vs Nixon in 1974, where Nixon was being forced to hand over the Watergate tapes. Next, came the Rehnquist court in 1986 and is still the current Supreme Court in the United Sates. This court is seen as a return to the conservative 'constructionist' approach, and is even labelled as having a conservative activist approach as it interprets the constitution loosely to bring about conservative values and ideas. In the very important issue of race, this court ruled against 'bussing' and made it more difficult to prove discrimination.
Furthermore, the Supreme Court invalidated 'set aside' contracts in the case of Richmond Vs Croson 1989. In addition, important implications were made in the matter of the rights of the accused. This included a more frequent use of capital punishment, including mentally retarded people and under 18's. And in the case of Arizona Vs Fulminente 1991, involuntary confessions were ruled as admissible. This seemed to uphold a conservative 'tough on crime' approach. On the issue of abortion, the court at first, acted restrictively but then become more tolerant of the matter.
In Webster Vs Reproductive Health Services the law banning state facilities to aid in abortion was upheld, based on a previous Missouri law in Rust Vs Sullivan 1991. The Supreme Court further upheld federal government regulations banning abortion advice in federally funded clinics, this was seen as an example of the court taking a conservative activist approach. However, in the 1992 Planned Parenthood Vs Caseu the Supreme Court reaffirmed Roe Vs Wade abortion rights. Freedom of expression was used as the main bulwark when the court overturned a Texas law banning flag burning (Texas Vs Johnson 1989).
In addition, Internet pornography was not ruled against in Reno Vs ACLU. There has not been a great deal of continuity between the main courts, except for the issue of religion in school. However, a case on this matter has yet to be brought to the current Rehnquist court and therefore, there is no way to know whether the more conservative activist court will overturn the previous regulations. Although there was a period of liberal interpretation under the Warren court, a steady rise of conservatism has found its way back to the courts especially where matters of civil liberties are being adjudicated on.