Justin Driver is an assistant professor at the University of Texas School of Law and a contributing editor at The New Republic.  This post is drawn from his recent article, The Constitutional Conservatism of the Warren Court, 100 California Law Review 1101 (2012).

Scholarly debate about the Warren Court casts a long shadow over modern constitutional law.  The essential contours of this debate have now grown exceedingly familiar: where liberal law professors overwhelmingly sing the Warren Court’s praises, conservative law professors sing only the blues.  Although some liberals have recently begun contending that the Warren Court occasionally overstepped the bounds of judicial propriety, such concessions do nothing to reconfigure the debate’s fundamental terms.  Indeed, none of these three postures toward the Warren Court – liberal defense, conservative attack, and liberal concession – appears poised to advance our understanding of either that institution or the document that it was charged with interpreting.  Yet these now well-rehearsed positions hardly exhaust the full range of viable approaches toward the Warren Court.

Conspicuously absent from scholarly discourse has been a sustained liberal argument contending that the Warren Court made substantial mistakes – not by going excessively far, but by going insufficiently far in its constitutional interpretations.  In an article published in the October issue of the California Law Review, I sought to supply that missing perspective by providing a historically contextualized critique of the Warren Court’s jurisprudence.  Several distinct doctrinal arenas feature opinions displaying the Warren Court’s underappreciated constitutional conservatism.  By “constitutional conservatism,” I used that term as it was understood contemporaneously.  During the Warren Court era, to be a constitutional conservative meant embracing a few closely related concepts: venerating precedent; resisting breaks with the past; conceiving of the judicial role as modest; and adopting a skeptical view of judicial interpretations designed to produce a more egalitarian society.  Constitutional conservatives, thus, sought to conserve the prevailing legal order.

While many examples of the Warren Court’s constitutional conservatism are available, I detailed five significant opinions that generated widespread disappointment among liberals during the 1960s.  First, the Court in Hoyt v. Florida upheld a statute that required women – but not men – to volunteer in order to be eligible for jury service.  Although law professors have previously asserted that dominant attitudes made the decision virtually inevitable, they have overlooked evidence suggesting that considerable space existed for the Warren Court to issue more progressive gender decisions.  Second, the Court in Braunfeld v. Brown found that states did not violate the Free Exercise Clause when they forced Orthodox Jewish storeowners to adhere to Sunday closing laws.  Even setting aside that most states with such laws granted religious exemptions, the statutes had long been subjected to broad condemnation and even judicial invalidation.  Third, regarding the question of racial equality with which the Warren Court is so readily identified, the Court in Swain v. Alabama refused to provide oversight for the exercise of peremptory strikes.  As many scornful law review commentators immediately noted, Swain articulated an impossibly high standard and thus prolonged the existence of the southern all-white jury.  Fourth, the Court in Powell v. Texas found that convicting chronic alcoholics of public intoxication did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  While that decision may sound perfectly predictable today, Powell shocked contemporary observers, including the numerous federal judges who had already invalidated the application of such laws.  Finally, the Court in McDonald v. Board of Election Commissioners found that registered voters in jail awaiting trial did not have a right to vote by absentee ballot.   Many commentators observed that the Court reached that result only by applying an extremely relaxed level of scrutiny, abandoning its own recent precedents, and engaging in elaborate fantasies regarding how state officials may not have actually deprived jailed inmates of their voting rights.

Why have liberal law professors overwhelmingly refrained from criticizing the Warren Court for its jurisprudential shortcomings?  Part of the reason for this omission in the scholarly literature is surely attributable to the dynamics that emerged in the immediate wake of Brown v. Board of Education.  In response to conservative attacks on Brown that originated in politics and eventually migrated into academia, liberal law professors not surprisingly sought to defend the Warren Court’s legitimacy.  Throughout the Warren Court era and beyond, prominent liberal academics have continually played this role, challenging conservative opposition to the Warren Court rather than challenging the Court itself.  A second part of the explanation for the absence of such criticism likely stems from the peculiar type of praise that liberals have heaped upon the Warren Court.   When liberals identify virtues of the Warren Court’s jurisprudence, they do not generally tout its mastery of legal craft.  Instead, liberals praise the Warren Court for its finely tuned moral sense.  But if the Warren Court’s greatest strength is its morality, finding fault with the Court implicitly requires liberals to draw attention to instances where its moral compass has faltered.  And that is a move that liberal scholars, many of whom came of age during the Warren Court’s height, have appeared unwilling to make.

Whatever the precise explanation for the dearth of Warren Court criticism from liberals, the absence of such critique yields an overly rigid conception of constitutional meaning.  Emphasizing the Warren Court’s conservative decisions helps to appreciate the broad range of latitude that judges often have in deciding cases.  Contrary to the assessments of several leading law professors, the Warren Court Justices were not merely the products of either their times or political coalitions.  To view them as such not only incorrectly deprives them of the acclaim they deserve when they issued honorable decisions, but also incorrectly absolves them for issuing dishonorable decisions.  Seeing the Warren Court’s limitations clearly may help to revive the dormant tradition of progressive judicial interpretation, as these jurisprudential paths not taken underscore the mutability of constitutional law.  Highlighting how even the vaunted Warren Court preserved prevailing constitutional understandings – often for seemingly no better reason than that they had long prevailed – should encourage modern legal liberals to redouble their efforts in challenging the normative power of existing law.

Too frequently, liberal legal scholars depict the Warren Court as a halcyon age of constitutional interpretation – a magical moment when the judicial and political stars aligned – that simply never will be approximated again.  Liberals insist the Warren Court made history, not mistakes.  But it is profoundly mistaken to deny the Warren Court’s constitutional conservatism a significant place in assessing its jurisprudential legacy.  Recapturing the past in all its rich complexity and appreciating the Warren Court’s failures alongside its successes help to demythologize that age and to suggest that liberal constitutional interpretation can flourish once more.  Recovering merely a few of the many squandered judicial opportunities of the Warren Court era, thus, not only sharpens our constitutional history; it may also shape our constitutional future.  Illumination of the Warren Court’s constitutional conservatism could play some small role in rekindling the liberal imagination to the ample possibilities contained in progressive judicial interpretation.  That the Warren Court failed to do something, after all, hardly means that it cannot be done.






Posted in Academic Round-up, Featured

Recommended Citation: Justin Driver, Scholarship highlight: The Warren Court’s constitutional conservatism, SCOTUSblog (Dec. 18, 2012, 12:05 PM), https://www.scotusblog.com/2012/12/scholarship-highlight-the-warren-courts-constitutional-conservatism/