Ask the author: The enduring and controversial legacy of the Warren Court
on Dec 17, 2019 at 3:15 pm
The following is a series of questions posed by Ronald Collins to Geoffrey Stone and David Strauss in connection with their new book, “Democracy and Equality: The Enduring Constitutional Vision of the Warren Court” (Oxford University Press, 2020).
Geoffrey Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. He served as dean of the law school from 1987-1994 and provost of the University of Chicago from 1994-2002. Stone was a law clerk to Supreme Court Justice William J. Brennan Jr. and before that a law clerk to Judge J. Skelly Wright on the U.S. Court of Appeals for the District of Columbia Circuit.
David Strauss is the Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School. Before joining the law school faculty, he worked as an attorney-advisor in the Office of Legal Counsel at the U.S. Department of Justice and was an assistant to the Solicitor General of the United States.
Stone and Strauss, along with Yale Law School professor Justin Driver, are the editors of the Supreme Court Review.
Welcome, Geoffrey and David, and thank you for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book.
* * *
Question: “Democracy and Equality” is the 18th book in the “Inalienable Rights” series published by Oxford University Press. As the editor of the series, Geoffrey, congratulations on such an impressive array of books by everyone from Richard Epstein to Laurence Tribe and from Martha Nussbaum to Nadine Strossen. Might you tell us what’s in the works for the next volume or two?
Stone & Strauss: By coincidence, the next two volumes in the series, which will be published in 2020, both deal with the issue of religion. In the 19th volume, Jack Rakove, a Pulitzer Prize-winning historian at Stanford, has written “Beyond Belief, Beyond Conscience,” which explores the evolution of religious freedom from the 16th century to the modern era, focusing especially on history, philosophy and political theory.
In the 20th volume, Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, and Howard Gillman, chancellor of the University of California, Irvine, have written “The Religion Clauses: The Case for Separating Church and State,” which focuses on what the authors see as the troubling directions our conservative justices are now taking insofar as they reject the idea of a wall separating church and state.
Question: The first book in the “Inalienable Rights” series was Richard Posner’s “Not a Suicide Pact: The Constitution in Times of a National Emergency” (2006). In the editor’s note to that volume, Geoffrey and Dedi Felman wrote: “Rights invite discussion: What is a constitutional right? What are the counterbalancing duties?”
In terms of the Warren Court’s civil rights and civil liberties jurisprudence, what do you see as some of the major counterbalancing duties?
Stone: As a bit of background, I should explain that back in 2004 Dedi Felman, then an editor at Oxford, came up with the idea for the Inalienable Rights series. I had just published “Perilous Times: Free Speech in Wartime” (2004), and Dedi persuaded me to take on the challenge of serving as editor of this series. The goal was to produce a series of books, written by distinguished legal scholars, that would be relatively brief (roughly 40,000 words, lightly footnoted), that would deal with important issues of constitutional law and that would be both interesting to constitutional law experts and accessible to general readers. Dedi left Oxford shortly thereafter, and David McBride has taken on her role in the years since. Initially, we imagined that the series would consist of perhaps six volumes published over eight years. We never imagined that we would publish 20 volumes, with more no doubt to come. The authors in the series have included truly remarkable scholars, including not only the individuals you mention above, but also Cass Sunstein, Pam Karlan, Lee Bollinger, Mark Tushnet, Michael Klarman, and on and on and on.
In terms of your question about “counterbalancing duties,” I assume we were referring most fundamentally to the doctrine of precedent and to the obligation of justices not to reach results merely because they think those results reflect good public policy for the nation, but to honestly ground their decisions in principles of interpretation that are true to the fundamental concerns of specific constitutional provisions and to an approach to constitutional interpretation that is grounded in the aspirations of the Framers and in a principled understanding of the central reasons for judicial review.
As we hope to demonstrate in “Democracy and Equality,” in our view, although the justices of the Warren Court often confronted problematic precedents, they had a deep understanding of the most fundamental reasons for judicial review and of the essential role of our Supreme Court in our constitutional system – most centrally, to make sure that majorities do not disregard the rights and interests of those without the political power to protect themselves, or abuse their power to manipulate the rules of democracy in order to ensure their continued dominance. As we argue in the book, the Warren Court confronted difficult issues of precedent, but did so in a manner that fulfilled the most central reasons for having a Supreme Court in the first place.
Question: As a matter of originalist jurisprudence, do you think Alexander Bickel’s memorandum for Justice Felix Frankfurter in Brown v. Board of Education (1954) carried the day, or do you think Raoul Berger had the better argument in his book, “Government by Judiciary” (1977), in which he argued that Bickel’s historical defense was untenable?
Stone & Strauss: The Warren Court, of course, never claimed to be “originalist.” In Brown, and then emphatically in Loving v. Virginia (1967), the case that struck down laws forbidding interracial marriage, the Warren Court was quite clear that it was not pretending to follow the original understandings. In that respect, the Warren Court was intellectually honest in a way that not everyone has been.
In fact, the question you ask, by itself, shows how impoverished “originalist jurisprudence” is. Berger’s claim that the 14th Amendment was not understood at the time to establish a principle of racial equality is pretty clearly correct, even if some of Berger’s specific arguments are flawed. So originalists have to tie themselves in knots to try to explain how originalism can be made consistent with cases like Brown and Loving. Bickel’s account – essentially, to emphasize the principles underlying the 14th Amendment and its capacity for growth, rather than how people at the time understood it – is of a piece with one of the ways originalists try to save their approach from generating unacceptable conclusions.
If we understand originalism that way, about principles and the capacity for growth, then it can be unobjectionable; everybody can be an originalist. But that version of originalism also doesn’t really limit judges, decide controversial cases or explain how U.S. constitutional law develops.
Question: In your conclusion, you argue that the Warren Court would have rejected the Second Amendment argument in District of Columbia v. Heller (2008) on historical and textual grounds. I assume the same would hold true for the court’s ruling in McDonald v. City of Chicago (2010), which applied the Second Amendment to the states.
If so, why did those originalist and textualist standards not defeat the constitutional claim in Malloy v. Hogan (1964)? The majority in Malloy, per Justice William Brennan, incorporated the Fifth Amendment privilege against self-incrimination against the states with little, if any, originalist support.
Stone & Strauss: Right – the Warren Court was not, and did not purport to be, originalist, and that’s true of the incorporation decisions, too. Justice Hugo Black emphasized the text and what he said were the original understandings, but his view was not accepted by the Warren Court as a whole.
Incorporation – the application of the Bill of Rights to the states – was a Warren Court success story. But it was not based on original understandings. At the time of most of the incorporation decisions, the received historical view was that the 14th Amendment was not understood to incorporate the Bill of Rights. Justices Felix Frankfurter and John Marshall Harlan, who were very historically minded, opposed incorporation on that ground.
We now know, thanks to the impressive work of some important scholars, that this received understanding was too simple and that the history is actually quite complicated – no surprise there. But by the end of the Warren Court, incorporation had become the norm, except for a couple of well-established exceptions (basically, the Seventh Amendment and the Fifth Amendment’s grand jury clause). It became the norm for a variety of reasons having nothing to do with the history or, for that matter, the text. In part it was, as we say in the book, one of the Warren Court’s weapons against state criminal-justice systems that were engines of white supremacy or, at least, badly dysfunctional. More generally, as the Warren Court made the protections of the Bill of Rights more extensive and elaborate, it made a lot of sense not to operate with separate sets of rules for federal and state governments, particularly in the area of law enforcement.
Heller was wrong, but once it was decided, it became an uphill struggle to keep the Second Amendment from being incorporated, precisely because the Warren Court made incorporation the norm.
Question: As you note, in a 1980 Santa Clara Law Review article, Justice Arthur Goldberg declared: “Without actually overruling Mapp v. Ohio, which applied the exclusionary rule to the states], the present Court has riddled it so full of loopholes as to render its effect almost meaningless.”
Might the same be said of one of the Warren Court’s most famous decisions, Miranda v. Arizona (1966)? Have Mapp and Miranda become “almost meaningless”?
Stone & Strauss: No. Although in the years since Mapp the increasingly conservative justices of the Burger, Rehnquist and Roberts Courts have limited the impact of Mapp in a string of decisions, illustrated by United States v. Calandra (1974), Stone v. Powell (1976) and Herring v. United States (2009), many police departments across the nation have reformed themselves in response to Mapp. Despite the limitations the Burger, Rehnquist and Roberts Courts have imposed on the scope of the exclusionary rule, the central holding of Mapp remains intact. As Yale Kamisar has observed, “it is comforting to know that, although battered and bruised,” Mapp “remains in place – waiting for a future Court to reclaim the torch.”
As with Mapp, the ever-more conservative justices since the end of the Warren Court have limited the impact of Miranda. In Harris v. New York (1971) for example, the Burger Court held, over the dissents of Black, Brennan and Justices William Douglas and Thurgood Marshall, all of whom had joined Miranda, that statements made by a suspect in the course of custodial interrogation could be used to impeach the defendant’s credibility if he testified in his own behalf at trial. Over time, though, Miranda came increasingly to be accepted as the culture of the police station as law enforcement practices became more civilized and more positive.
In 1993, the Rehnquist Court declared that, in the 27 years since Miranda was decided, “law enforcement has grown in constitutional as well as technological sophistication, and there is little reason to believe that the police today are unable, or even generally unwilling, to satisfy Miranda’s requirements.” In 2000, in Dickerson v. United States, Chief Justice William Rehnquist expressly reaffirmed Miranda, noting that “Miranda has become embedded in routine police practice” and there is no principled “justification for overruling Miranda.”
Nonetheless, the Roberts Court has continued to undermine Miranda. In Berghuis v. Thompkins (2010), for example, the court, with Chief Justice Roberts joining Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito in the majority, held that an individual arrested for murder who remained silent for three hours after being warned of his right to remain silent, despite continued and ongoing police interrogation, had waived his rights when he finally gave in and responded to a question.
Although Miranda has become generally accepted, how it will fare in the hands of justices who do not share the Warren Court’s vision of the Constitution remains to be seen.
Question: It seems that the court since the Warren era has preferred creating numerous exceptions to landmark liberal rulings to formally overruling them. Consider another quotation, for example, from Rehnquist in Dickerson: “While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, … we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling.”
Do you think the exceptions to Roe v. Wade (1973) carved out since the ruling have undermined Roe’s doctrinal underpinnings, leaving it vulnerable to being overruled? Or do you think the court will continue to riddle it with exceptions?
Stone & Strauss: Roe was a profoundly important decision. Although it was not a Warren Court decision, there is little doubt that the Warren Court would have reached the same result in 1973. One thing that is interesting – and revealing – about Roe is that five of the seven justices in the majority were appointed by Republican presidents Dwight Eisenhower and Richard Nixon (Brennan, Chief Justice Warren Burger, and Justices Potter Stewart, Harry Blackmun and Lewis Powell). The two dissenters were appointed by Republican President Nixon (Rehnquist) and Democratic President John Kennedy (Justice Byron White). In short, Roe was a remarkably nonpartisan decision.
Things have changed dramatically since 1973, though, as presidents from both parties have increasingly appointed justices with what they hoped were preconceived views on abortion. Nonetheless, although Republican presidents have appointed 14 of the 18 justices in the last 50 years (even though they have won the popular vote in only six of the last 13 presidential elections), Roe has survived.
It is true, of course, that the court over that period has handed down several important decisions limiting Roe, including Maher v. Roe (1977), Harris v. McRae (1980), Planned Parenthood v. Casey (1992) and Gonzales v. Carhart (2007), but the plain and simple fact is that, despite those decisions, at least the core of Roe has survived notwithstanding the many attacks on it. That is due largely to the fact that four Republican-appointed justices in this era – Kennedy, John Paul Stevens, Sandra Day O’Connor and David Souter – were deeply committed to the principle of precedent and to the rights of women. Unfortunately, in our view, the five Republican-appointed justices now on the court (Roberts, Thomas and Alito, alongside Neil Gorsuch and Brett Kavanaugh) are likely to cast Roe aside. They might do this quickly, or in a series of decisions over the next three or four years, but as long as they remain in the majority, they will almost surely do this.
Question: In all 12 cases you discuss, the various rights claims were vindicated. But what of important Warren Court cases in which a claim was denied, as in Brennan’s opinion in Roth v. United States (1957), in which the court held that obscenity is not protected by the First Amendment?
How important was Roth to the Warren Court’s First Amendment jurisprudence?
Stone & Strauss: It’s important to understand that the Warren Court’s jurisprudence evolved over time as the makeup of the court changed. Indeed, although Chief Justice Earl Warren joined the court in 1954, the only decision of the 12 we discuss in our book that was handed down before 1961 was Brown. Brown was, of course, a profoundly important and transformative decision, but with that one exception the Warren Court as we know it didn’t really take on its historic identity until the early 1960s. At the time Roth was decided in 1957, the court still had Frankfurter and Justices Harold Burton, Tom Clark and Charles Whittaker on it. It was not surprising that those justices would not welcome a “radical” decision giving broad constitutional protection to obscenity. Moreover, Warren himself was personally quite put off by what at the time was understood to be obscene expression.
On the other hand, although Roth might be seen today as a somewhat timid decision, Brennan’s opinion for the court gave much greater First Amendment protection to sexual expression than existed almost anywhere in the nation. The dominant approach to defining obscenity in the United States at that time was still rooted in the 1868 English case of Regina v. Hicklin, which held that any material that tended to “deprave and corrupt those whose minds are open to such immoral influences” must be deemed “obscene” and therefore could be banned. Brennan, building on lower-court and state-court decisions that had increasingly interpreted anti-obscenity statutes more narrowly – although not based on the First Amendment – held that sexual expression could not be prohibited consistent with the First Amendment unless “the dominant theme of the material taken as a whole appeals to the prurient interest” of the “average person” applying “contemporary community standards.” Although Roth did not go nearly as far as Douglas and Black wanted (they maintained that so-called “obscene” expression should be fully protected by the First Amendment), it was in fact a cautious, but meaningful step forward in the protection of sexual expression.
Moreover, nine years later when the Warren Court revisited the question in Memoirs v. Massachusetts, Brennan, joined by Warren and Justice Abe Fortas, with concurrences by Black, Douglas and Stewart, held that sexual material could not be deemed obscene unless, in addition to the requirements set out in Roth, it also had “no redeeming social value.” By the time the Burger Court came into being, this test had proved so expansive in its protection of sexual expression that the justices of the Burger Court felt it necessary in 1973 in Miller v. California and Paris Adult Theater v. Slaton to cut back substantially on the Warren Court’s approach to sexual expression and the First Amendment.
Question: Harlan dissented from some of the Warren Court’s seminal rulings, including Mapp and Miranda. How, if at all, do his dissents inform our understanding of constitutional law?
Stone & Strauss: Harlan today has an excellent reputation, deservedly so, but it is more despite than because of his dissents from some of the Warren Court decisions. His opinions as a whole reflect a respect for tradition and precedent, a recognition of the importance of being principled and a genuine effort to get things right without political or ideological precommitments.
Harlan misjudged the criminal-procedure revolution, in the cases you mention for example, and he was mistaken about some other Warren Court initiatives, notably reapportionment. But even then, his opinions presented the right kinds of challenges to the Warren Court. And although he was often a “conservative” dissenter on the Warren Court, he was the intellectual godfather of Roe – he was not on the court at the time of Roe, but his opinion in Griswold v. Connecticut (1967) paved the way for Roe, and the approach he took in Griswold became the foundation of so-called unenumerated rights more generally.
To give just a couple of other examples: In Cohen v California (1971), Harlan wrote an opinion upholding the First Amendment right of an individual to wear a jacket saying “Fuck the Draft” in a courthouse, even though he himself undoubtedly found that kind of display worse than distasteful. But he understood the nature and importance of dissent in the Vietnam War era. And in Bivens v. Six Unknown Named Agents (1971), Harlan wrote an exceptionally thoughtful opinion explaining why people should be able to sue federal officials who violate their constitutional rights. More recent courts have been relentlessly hostile to Bivens but have never met Harlan’s arguments on the merits. The conservative counter-revolution on the Supreme Court has been, in many ways, as much a repudiation of Harlan as of the Warren Court.
Question: As you note in your chapter on Loving, in the aftermath of Brown the Warren Court was reluctant to declare prohibitions on interracial marriage unconstitutional.
You write: “The Justices, in what amounted to a kind of judicial civil disobedience, had decided that they had to violate Congress’s jurisdictional statute in order to protect Brown.”
What do you make of this “judicial civil disobedience”? And given the cultural state of affairs in America in the early 1970s, was the Supreme Court warranted in refusing to hear Baker v. Nelson (1972), a case challenging a Minnesota anti-gay-marriage law?
Stone & Strauss: Whatever might be said about Baker, it was not an act of judicial civil disobedience; the court complied with the jurisdictional statutes (Baker was a decision on the merits), and there was no established law favoring same-sex marriage at the time. The question of when the court should hold back on establishing constitutional rights that it would otherwise recognize because it is concerned about a public backlash – that is a very difficult question. Disobeying a legal obligation because of a concern about backlash is the most extreme example. Maybe it is a partial answer to say that, in the real world, the justices are, in fact, going to take the risks of a backlash into account (as they perceive those risks), no matter what those of us on the outside might say.
This issue – whether the court should have held back because of a concern about backlash –might have arisen in a dramatic way in the run-up to Obergefell v. Hodges, the 2015 decision that established a right to same-sex marriage, had public opinion not moved so quickly in favor of same-sex marriage. But as it was, the court did not have to face that issue squarely.
Question: What might the Warren Court have done had it heard Buckley v. Valeo (1976), in which the court under Chief Justice Warren Burger struck down spending limits in the Federal Election Campaign Act of 1971?
Stone & Strauss: This is a fascinating question. To keep things simple, we’ll focus only on the contribution and expenditure limits, although that leaves out some interesting parts of the law. At the time Buckley was decided, there were only four justices from the Warren Court still on the Supreme Court – Brennan, Stewart, White and Marshall. Brennan and Stewart voted to uphold the contribution limits but to strike down the expenditure limits. White voted to uphold both the contribution and expenditure limits. Marshall voted to uphold both the contribution and expenditure limits (but only as applied to candidates themselves). In short, the four holdovers from the Warren Court all voted to uphold the contribution limits, but were all over the lot on the expenditure limits. Given this distribution of votes, it’s difficult to predict what Warren, Black, Douglas, Harlan and Fortas would each have done had they still been on the court in 1976.
Part of the reason this is so difficult is that the Warren Court deeply valued both the freedom of speech and the proper functioning of the democratic process. A case like Buckley arguably put these central values in conflict. On the one hand, the members of the Warren Court generally believed that individuals should have a right to speak their minds, but on the other hand they also believed that government could constitutionally intervene in the democratic process to ensure that it functions fairly.
Although the remaining justices of the Warren Court clearly disagreed about how best to strike the balance in 1976, we have little doubt that by the time Citizens United v. Federal Election Commission made it to the court in 2010 a substantial majority of the Warren Court justices would have voted to uphold the McCain-Feingold Bipartisan Campaign Reform Act. This is so because by this time the destructive impact of money in the political process had grown far more severe than had been the case in 1976. Moreover, although the limitation on free speech was not insignificant, it was viewpoint-neutral and thus made the danger to free-speech values much less serious than if the law had expressly treated supporters of Democratic candidates differently from supporters of Republican candidates. And given the increasingly dangerous impact money was having by 2010 on a well-functioning democracy, it seems clear that most of the Warren Court justices, like Stevens and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor in Citizens United (and O’Connor, who had voted to uphold the act a few years earlier in McConnell v. Federal Election Commission), would have voted to uphold the central provision of the McCain-Feingold Act.
Question: In cases such as Jones v. Alfred H. Mayer Co. (1968) and Katzenbach v. Morgan (1966), the Warren Court relied on the 13th and 14th Amendments to uphold Congress’ power to enact anti-discrimination laws that apply to the federal government and the states. Do you think we will see more rulings like the one in Shelby County v. Holder (2013), which struck down such a law, Section 4(b) of the Voting Rights Act of 1965?
Stone & Strauss: The Warren Court was, of course, criticized for “activism” – for declaring laws unconstitutional. But more recent conservative courts have generally accepted the “activist” decisions: Brown, Loving, Reynolds v Sims (1964), Miranda, Gideon, Griswold, the school prayer cases, the First Amendment cases.
The Warren Court decisions that have fared the worst at the hands of conservative courts have been the decisions that upheld acts of Congress. Katzenbach v. Morgan, which you mention, was effectively overruled by City of Boerne v. Flores (1997); Shelby County is hard to square with South Carolina v. Katzenbach (1966), to say the least; and the Warren Court’s generous view of Congress’ power under the commerce clause (which was the basis for upholding key provisions of the Civil Rights Act of 1964) was systematically limited by the Rehnquist and Roberts Courts.
In other words, the conservative courts’ biggest objection to the Warren Court seems to be that the Warren Court was too deferential to Congress – too willing to step aside and let the people’s elected representatives in Congress run things. That was part of the Warren Court’s abiding commitment to democracy. One of the reasons we wrote the book was that we thought the legacy of the Warren Court was misunderstood – by conservatives, by moderates and even by liberals – and this is a prime example.
Question: You suggest that, consistent with its rulings in Brown and Loving, the Warren Court would have sustained affirmative-action programs in order to help rectify the grave and lasting wrongs of slavery. You write: “Racial classifications do not present a critical constitutional problem unless they reinforce something comparable to white supremacy.” How might the Warren Court have applied that formula in the context of affirmative action?
Stone & Strauss: Critics of affirmative action like to say that Brown and Loving stand for a principle of colorblindness – that “racial classifications” are across the board unacceptable. That’s a mischaracterization. The problem with the racial classifications of the Jim Crow era is that they were used to subordinate African Americans, and the logic of the Warren Court decisions is that racial classifications are unacceptable when they are used to oppress minority groups.
Affirmative-action measures – classifications that benefit minorities – may be good or may be bad, but that is a decision that should be entrusted to the political process; there is no reason for the courts to step in. Current law has moved far away from that way of thinking, but that is the right way to understand the principle that underlies the Warren Court decisions about race.
Question: In a nutshell, what would you say is the central difference between the constitutional jurisprudence of Warren and that of Roberts?
Stone & Strauss: As the title of our book suggests, the “enduring constitutional vision of the Warren Court” was its concern with democracy and equality. Warren certainly shared that vision. What this meant, simply, is that in exercising the fundamental responsibility of judicial review in cases like Brown, Mapp, Engel v. Vitale (1962), Gideon v. Wainwright (1963), New York Times Co. v. Sullivan (1964), Reynolds, Griswold, Miranda, Loving, Katz v. United States (1967), Shapiro v. Thompson (1968) and Brandenburg v. Ohio (1969) – which are the central focus of our book –Warren and the Warren Court focused on ensuring that the American Constitution protected the rights of minorities and the essential requisites of a well-functioning democracy. That was – correctly, in our view – the core focus of Warren’s interpretation of our Constitution. Of course, as we say in the book, there were some cases in which Warren, and his court, did not follow through on that vision. But there is an overall principled coherence to the work of the Warren Court.
It is much more difficult to define the “constitutional jurisprudence” of Roberts and his court. Quite frankly, when one reviews such cases as Heller, Citizens United, Shelby County, Burwell v. Hobby Lobby (2014), Trump v. Hawaii (2017) and Rucho v. Common Cause (2019), and the dissenting opinions in Obergefell, Whole Woman’s Health v. Hellerstedt (2016) and Fisher v. University of Texas (2016), it is difficult to discern a principled approach to constitutional interpretation.
“Originalism” is not a plausible theory of constitutional interpretation, as we have said, and does not even purport to be the basis of most of these decisions. The text does not answer the questions posed by these cases. The Roberts Court is certainly not an avatar of judicial restraint – it is far more willing to invalidate important acts of Congress than the Warren Court ever was – or of following precedent. The affirmative-action and gun-control cases belie any principled commitment to federalism. Although Warren and Roberts were both Republicans, appointed by Republican presidents, the difference in their courts’ approach to constitutional interpretation is dramatic.
Question: In your view, recent developments in the court’s equality and liberty jurisprudence “paint a bleak picture.” Where does that leave those who value the constitutional vision of the Warren Court?
Stone & Strauss: There are historians who say that the Warren Court was a one-off: a product of a particular constellation of political and legal forces that is unlikely to be replicated. That may be true, of course. But we wrote the book not as an exercise in nostalgic hagiography – the Warren Court made its share of mistakes, as we say in the book – but in order to hold out an ideal of the role the Supreme Court could play in a democratic society.
In particular, we wanted to refute the notion that the Warren Court was just a liberal counterpart to the conservative courts that have succeeded it. The current administration, and the current Senate leadership, have tried to make the courts an instrument of partisan warfare. Things don’t have to be that way, and they weren’t that way for the Warren Court. Warren was one of the most successful Republican politicians of his generation. Brennan was appointed by a Republican president. White, a Kennedy appointee, dissented from many of the Warren Court’s criminal-procedure decisions, as well as from Roe. Harlan, an establishment Republican appointed by a Republican, believed the Constitution protected reproductive rights; Black, a New Deal Democratic senator, vehemently disagreed. But every one of those justices shared the core commitments of the Warren Court – its war on racial apartheid and its defense of democracy.
What the Warren Court shows, we think, is that the Supreme Court can transcend partisanship and help fulfill the highest ideals of American democracy. That should be our aspiration for the future of the courts, however discouraging things might seem right now.