Warren Court

Warren Court

The Warren Court (1953-1969) represents a period in the history of the Supreme Court of the United States that was marked by one of the starkest and most dramatic changes in judicial power and philosophy. Led by Chief Justice Earl Warren, the Court expanded civil rights, liberties, the judicial power, and the federal governmental power in ways previously unseen. [Sunstein, Cass "Breyer's Judicial Pragmatism" University of Chicago Law School. November, 2005. pg. 3-4. ("To many people, the idea of judicial deference to the elected branches lost much of its theoretical appeal in the 1950s and 1960s, when the Supreme Court, under the leadership of Chief Justice Earl Warren, was invalidating school segregation (Brown v. Bd. of Educ.), protecting freedom of speech (Brandenburg v. Ohio) striking down poll taxes (Harper v. Bd. of Elections), requiring a rule of one person, one vote (Reynolds v. Sims), and protecting accused criminals against police abuse (Miranda v. Arizona)."] At the same time heralded and criticized for its activism in bringing an end to segregation, incorporating the bill of rights, ending staff-sanctioned, mandatory school prayer, and other controversial decisions, the period is recognized as a high point in judicial power that has receded ever since, but with a substantial continuing impact. [Sunstein at 4 ("Is it possible to defend the Warren Court against the charge that its decisions were fatally undemocratic? The most elaborate effort came from John Hart Ely, the Warren Court's most celebrated expositor and defender, who famously argued for what he called a "representation-reinforcing" approach to judicial review. Like Thayer, Ely emphasized the central importance fo democratic self-rule. But Ely famously insisted that if self-rule is really our lodestar, then unqualified judicial deference to legislatures is utterly senseless. Some rights, Ely argued, are indispensable to self-rule, and the Court legitimately protects those rights not in spite of democracy but in its name. The right to vote and the right to speak are the central examples. Courts promote demoracy when they protect those rights.")] [Sunstein at 4 ("Ely went much further. He argued that some groups are at a systematic disadvantage in the democratic process, and that when courts protect 'discrete and insular minorities,' they are reinforcing democracy too.")]

Prominent members of the Court during the Warren era besides the Chief Justice included Justices William Brennan, William O. Douglas, Hugo Black, Felix Frankfurter, and John Marshall Harlan. [Schwartz, Bernard (1996) "The Warren Court: R Retrospective" Oxford, pg. 5. ISBN 0195104390]

Warren's Leadership

One of the primary factors in Warren's leadership is often said to be his political background, having served three terms as Governor of California before his appointment to the position of Chief Justice by President Dwight D. Eisenhower in 1953. This background seems to have given Warren a strong belief in the remedial power of law. According to Bernard Schwartz, Warren's view of the law was pragmatic, seeing it as an instrument for obtaining equity and fairness. This was also largely related to the conditions of the era, however. Schwartz argues that Warren's approach was most effective "when the political institutions had defaulted on their responsibility to try to address problems such as segregation and reapportionment and cases where the constitutional rights of defendants were abused." [Schwartz, Bernard (1996) "The Warren Court: R Retrospective" Oxford, pg. 6. ISBN 0195104390]

A related component of Warren's leadership is said to have been his focus on broad ethical principles, rather than narrower interpretive strictures. Describing the latter as "conventional reasoning patterns," Professor Mark Tushnet suggests Warren often disregarded these in groundbreaking cases such as Brown v. Board of Education, Reynolds v. Sims and Miranda v. Arizona, where such traditional sources of precedent were stacked against him. Tushnet suggests Warren's principles "were philosophical, political, and intuitive, not legal in the conventional technical sense." [Tushnet, Mark (1996). "The Warren Court: in Historical and Political Perspective." University of Virginia Press. Pg. 40-42. ISBN 0813916658]

Warren's leadership was characterized by remarkable consensus on the court, particularly in some of the most controversial cases. These included Brown v. Board of Education, Gideon v. Wainwright, and Cooper v. Aaron each unanimously decided, as well as Abington School District v. Schempp and Engel v. Vitale, each striking down religious recitations in schools with only one dissent. In an unusual action, the decision in Cooper v. Aaron was personally signed by all nine justices, with the three new members of the Court adding that they supported and would have joined the Court's decision in Brown v. Board. [ [http://usinfo.state.gov/usa/infousa/facts/democrac/37.htm Introduction to Cooper v. Aaron] ]


Professor John Hart Ely in his book "Democracy and Distrust" famously characterized the Warren Court as a "Carolene Products" Court." This referred to the famous Footnote Four in "United States v. Carolene Products" in which the Supreme Court had suggested that heightened judicial scrutiny might be appropriate in three types of cases: those where a law was challenged as a deprivation of a specifically enumerated right (such as a challenge to a law because it denies "freedom of speech," a phrase specifically included in the Bill of Rights); those where a challenged law made it more difficult to achieve change through normal political processes; and those where a law impinged on the rights of "discrete and insular minorities." The Warren Court's doctrine may be seen as proceeding aggressively in these general areas: its aggressive reading of the first eight amendments in the Bill of Rights (as "incorporated" against the states by the Fourteenth Amendment); its commitment to unblocking the channels of political change ("one-man, one-vote"), and its vigorous protection of the rights of racial minority groups. The Warren Court, while in many cases taking a broad view of individual rights, generally declined to read the Due Process Clause of the Fourteenth Amendment broadly, outside of the incorporation context (see "Ferguson v. Skrupa", but see also "Griswold v. Connecticut"). The Warren Court's decisions were also strongly nationalist in thrust, as the Court read Congress's power under the Commerce Clause quite broadly and often expressed an unwillingness to allow constitutional rights to vary from state to state (as was explicitly manifested in "Cooper v. Aaron").

Professor Rebecca Zietlow argues that the Warren Court brought an expansion in the "rights of belonging," which she characterizes as "rights that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community." Zietlow notes that both critics and supporters of the Warren Court attribute to it this shift, whether as a matter of imposing its countermajoritarian will or as protecting the rights of minorities. Zietlow also challenges the notion of the Warren Court as "activist," noting that even at its height the Warren Court only invalidated 17 acts of Congress between 1962 and 1969, as compared to the more "conservative" Rehnquist Court which struck down 33 acts of Congress between 1995 and 2003. [Zietlow, Rebecca E. "The Judicial Restraint of the Warren Court (and Why it Matters)". January 23, 2007, available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960144#PaperDownload]

Important Decisions

Significant decisions during the Warren Court years included decisions holding segregation in public schools unconstitutional ("Brown v. Board of Education"), holding anti-miscegenation laws unconstitutional ("Loving v. Virginia"), that the Constitution protects a general right to privacy ("Griswold v. Connecticut"), that states are bound by the decisions of the Supreme Court and cannot ignore them ("Cooper v. Aaron"), that schools cannot have official prayer ("Engel v. Vitale") or mandatory Bible readings ("Abington School District v. Schempp"), dramatically increasing the scope of the doctrine of incorporation ("Mapp v. Ohio"; "Miranda v. Arizona"), reading an equal protection clause into the Fifth Amendment ("Bolling v. Sharpe"), holding that the states may not apportion a chamber of their legislatures in the manner in which the United States Senate is apportioned ("Reynolds v. Sims"), and holding that the Constitution requires active compliance ("Gideon v. Wainwright").

Racial Segregation

"see Brown v. Board of Education, Bolling v. Sharpe, Cooper v. Aaron, Gomillion v. Lightfoot, Griffin v. County School Board, Green v. School Board of New Kent County", "Lucy v. Adams", "Loving v. Virginia"

Voting and Reapportionment

"see Baker v. Carr, Reynolds v. Sims, Wesberry v. Sanders"

Criminal Procedure

"see Mapp v. Ohio, Miranda v. Arizona, Escobedo v. Illinois, Gideon v. Wainwright, Katz v. United States, Terry v. Ohio "

Free Speech

"see Yates v. United States", "Roth v. United States", "Jacobellis v. Ohio", "Memoirs v. Massachusetts", "Tinker v. Des Moines School District"

Religion Clauses

"see Engel v. Vitale, Abington School District v. Schempp, Sherbert v. Verner"

Right to Privacy

"see Griswold v. Connecticut"

Cruel and Unusual Punishment

"see Trop v. Dulles"

ee also

*Earl Warren
*Supreme Court of the United States
*History of the Supreme Court of the United States
*Living Constitution
*United States Supreme Court cases during the Warren Court

External links

* [http://www.time.com/time/magazine/article/0,9171,840195,00.html?internalid=ACA "The Legacy of the Warren Court"] , Time Magazine, 4 July 1969


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