Warren Court

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WARREN COURT

It was surely the best known Supreme Court in history, and probably the most controversial. Its grand themes—racial equality, reapportionment, the separation of religion and education, due process—became matters of public consciousness. Its leading judges—hugo l. black, william o. douglas, felix frankfurter, john marshall harlan, and earl warren—became personages in whom the general public took an interest. When the Warren Court came into being in October 1953, the Supreme Court was the least known and least active of the major branches of government; by the retirement of Chief Justice Warren in June 1969, nearly everyone in American life had been affected by a Warren Court decision, and a great many Americans had firm opinions about the Supreme Court. When Warren was appointed Chief Justice, few commentators took note of the fact that he had had no previous judicial experience and had spent the last twelve years as a state politician. By the time warren e. burger succeeded Warren as Chief Justice the process of nominating a Justice to the Supreme Court had become an elaborate search for the "experienced," uncontroversial, and predictable nominee, and the Court was to lower its profile again.

The Warren Court years, then, were years in which the Supreme Court of the United States made itself a vital force in American culture. A striking pattern of interchange between the Court and the general public emerged in these years. As public issues, such as civil rights or legislative malapportionment surfaced, these issues became translated into constitutional law cases. The Court, expanding the conventional ambit of its jurisdiction, reached out to decide those cases, thereby making an authoritative contribution to the public debate. As the Court continued to reach out, the public came to rely on its presence, and the American judicial system came to be perceived as a forum for the resolution of contemporary social problems. The use of the Supreme Court as an institution for redressing grievances ignored by Congress or state legislatures became common with the Warren Court.

The origins of the Warren Court can officially be traced to September 8, 1953, when Chief Justice fred m. vinson died of a heart attack. By September 30, President dwight d. eisenhower had named Warren, the governor of California who had been a rival candidate for the Republican presidential nomination in 1952, as Vinson's successor. This nominal creation of the Warren Court did not, however, hint at its character. Indeed that character was not immediately apparent. Even the Court's first momentous decision, brown v. board of education (1954), announced in May of its first term, was in some respects a holdover from the Vinson Court. Brown had been argued before the Vinson Court, was based in part on Vinson Court precedents chipping away at racial discrimination in education, and was decided by a Court whose only new member was its Chief Justice. It was a cautious decision, apparently assuming that desegregation would be a long and slow process.

But Brown was also the Warren Court's baptism of fire. All the elements that were to mark subsequent major Warren Court decisions were present in Brown. Brown involved a major social problem, racial discrimination, translated into a legal question, the constitutionality of separate but equal public schools. It posed an issue that no other branch of government was anxious to address. It raised questions that had distinctively moral implications: in invalidating racial segregation the Court was condemning the idea of racial supremacy. And it affected the lives of ordinary citizens, not merely in the South, not merely in public education, for the Court's series of per curiam decisions after Brown revealed that it did not consider racial segregation any more valid in other public facilities than it had in schools. The Warren Court had significantly altered race relations in America.

The context of the Warren Court's first momentous decision was decisive in shaping the Court's character as a branch of government that was not disinclined to resolve difficult social issues, not hesitant to foster social change, not reluctant to involve itself in controversy. By contrast, the legislative and executive branches appeared as equivocators and fainthearts. The Warren Court was deluged with criticism for its decision in Brown, both from persons who resisted having to change habits of prejudice and from scholars who faulted the reasoning of the Court's opinion. This response only seemed to make the Court more resolute.

The deliberations of Brown also served to identify some of the Justices whose presence was to help shape the character of the Warren Court. Earl Warren transformed a closely divided Court, which had postponed a decision on Brown because it was uncertain and fragmented on the case's resolution, into a unanimous voice. That transformation was a testament to Warren's remarkable ability to relate to other people and to convince them of the rightness of his views. In Brown he had argued that those who would support the separate but equal doctrine should recognize that it was based on claims of racial superiority. That argument struck home to at least two Justices, tom c. clark and stanley f. reed, who had grown up in the South. When Warren had finished his round of office visits and discussions, he had secured nine votes for his majority opinion and had suppressed the writing of separate concurrences. robert h. jackson, a long holdout in Brown who was dubious about the possibility of finding a doctrinal rationale to invalidate the separate but equal principle, joined Warren's opinion and left a hospital bed to appear in court the day the decision was announced.

A silent partner in the Brown decision had been Felix Frankfurter. By the late 1950s Frankfurter's jurisprudence, which stressed a limited role for judges in reviewing the constitutionality of legislative decisions, had rigidified, isolating Frankfurter from many other justices and identifying him as one of the guardians of a theory of judicial self-restraint. Judicial self-restraint in Brown would have supported the separate but equal doctrine, since that doctrine itself signified a judicial reluctance to disturb legislative enactments forcibly separating persons on the basis of race. Frankfurter, however, could not abide the consequences of continued deference to the separate but equal doctrine, but he did not want to expose the lack of "restraint" that his position assumed. He accordingly confided his views on Brown only to Warren and worked toward fashioning a decree—containing the controversial phrase all deliberate speed as a guideline for implementing desegregation—that would temper the shock of the Brown mandate. At the appropriate moment he joined Warren's opinion.

The partnership of Warren and Frankfurter in the segregation cases contrasted with the usual posture of both Justices on the Warren Court. Warren's approach to judging, with its relative indifference to doctrinal reasoning and to institutional considerations, its emphasis on the morally or ethically appropriate result, and its expansive interpretation of the Court's review powers, was the antithesis of Frankfurter's. For the most part the two men sharply disagreed over the results or the reasoning of major Warren Court decisions, with Frankfurter enlisting a stable of academic supporters in his behalf and Warren seeking to bypass doctrinal or institutional objections to make broad ethical appeals to the public at large.

The presence of two other significant Warren Court Justices, hugo black and william o. douglas, was also felt in Brown. Black, a native of Clay County, Alabama, and fleetingly a member of the Ku Klux Klan, had been an opponent of racial discrimination since being elected to the Senate in 1926. He had supported the Vinson Court precedents crippling "separate but equal," for which he had received outspoken criticism in his home state. His position in Brown was well known early on: an uncompromising opposition to discriminatory practices. Such positions were characteristic of Black on the Warren Court. He staked out positions decisively, held them with tenacity, and constantly sought to convert others to his views. His theory of constitutional adjucation, which placed great emphasis on a "literal" but "liberal" construction of bill of rights protections, was a major contribution to Warren Court jurisprudence.

Equally outspoken and tenacious, and even more activist than Black, was William O. Douglas, whose academic experience, which paralleled Frankfurter's, had generated a strikingly different conception of judicial behavior. Douglas did not agonize over issues of institutional deference and doctrinal principle; he took his power to make law as a given and sought to use it to promote values in which he believed. The values were principally those associated with twentieth-century libertarianism and egalitarianism. Douglas spoke out for small business, organized labor, disadvantaged minorities, consumers, the poor, dissidents, and those who valued their privacy and their freedom from governmental restraint. Douglas's role on the Warren Court was that of an ideologue, anxious to secure results and confident that he could find doctrinal justifications. Together, Black and Douglas prodded the Court to vindicate even the most unpopular forms of free expression and minority rights.

While the Warren Court was generally regarded as an activist Court and a liberal Court, it was not exclusively so, and not all its members could be characterized as either activists or liberals. Until his retirement in 1962, at the midway point of Warren's tenure, Frankfurter had vociferously protested against an excessively broad interpretation of the Court's review powers, a position that resulted in his supporting the constitutionality of a number of "conservative" legislative policies. Other Justices on the Warren Court were either disinclined to exercise sweeping review powers or less enthusiastic than Warren, Black, or Douglas about the policies of twentieth-century liberalism. Most influential among those Justices was John Harlan, an Eisenhower appointee who joined the Court in 1955 and remained until 1971.

Harlan frequently and adroitly rejected the assumptions of Warren Court majorities that "every major social ill in this country can find its cure in some constitutional "principle" and that the Court could be "a general haven for reform movements." Moreover, in a group of Justices who were often impatient to reach results and not inclined to linger over the niceties of doctrinal analysis, Harlan distinguished himself by producing painstakingly crafted opinions. Often Harlan's quarrels with a majority would be over the method by which results were reached; his concurrences and dissents regularly demonstrated the complexities of constitutional adjudication.

The Warren Court will be best known for its identification with three themes: egalitarianism, liberalism, and activism. From Brown through powell v. mccormack (1969), Earl Warren's last major opinion, the Court demonstrated a dedication to the principle of equality, a principle that, in Archibald Cox's felicitous phrase, "once loosed … is not easily cabined." Race relations were the initial context in which the Court attempted to refine the meaning of equal justice in America. Once the ordeal of Brown was concluded, that meaning seemed comparatively straightforward. In a series of per curiam opinions, the Court extended Brown to public beaches, parks, recreational facilities, housing developments, public buildings, eating facilities, and hospitals. The conception of equality embodied by these decisions was that of equality of opportunity: blacks could not be denied the opportunity of access to public places.

Brown had been rationalized by the Court on similar grounds: the gravamen of the injustice in a segregated school system was a denial of equal educational opportunities to blacks. But equality of opportunity became difficult to distinguish, in the race cases, from the conception of equality of condition. The Court presumed that classifications based on race were constitutionally suspect and seemed to suggest that equal justice in the race relations area required something like color-blindness. Classifications based on race or skin color not only denied black Americans equal opportunities, they also were not based on any rational judgment, since the human condition transcended superficial differences of race. After the per curiams, the massive resistance to Brown, and the civil rights movement of the 1960s, the Court gradually perceived that equality in race relations necessitated the eradication of stigmas based on skin color. This momentum of egalitarianism culminated in Loving v. Virginia (1967), in which the Court invalidated state prohibitions of miscegenous marriages, thereby affirming the absence of fundamental differences between blacks and whites.

Between the per curiams and Loving had come skirmishes between the Court and groups resisting its mandates for change in race relations. cooper v. aaron (1963) involved a challenge by the governor of Arkansas to compulsory integration in the Little Rock school system. The Court, in an unprecedented opinion signed individually by all nine Justices, reaffirmed the obligations of Southern schools to integrate. Goss v. Board of Education (1963) invalidated minority-to-majority transfer plans whose purpose was to allow students to attend schools outside their districts in which their race was in the majority. heart of atlanta motel v. united states (1964) and Katzenbach v. McClung (1964) used the Constitution's commerce clause and the civil rights act of 1964 to prevent hotels and restaurants from refusing service to blacks. burton v. wilmington parking authority (1961) and Evans v. Newton (1966) showed the Court's willingness to use the doctrine of " state action " to compel ostensibly private establishments (restaurants and parks) to admit blacks.

After Loving the Court grew impatient with resistance to the implementation of its decrees in Brown. In green v. new kent county school board (1968) the Court scrutinized the actual effect of "freedom of choice" plans, where students attended schools of their own choice. The Court found that the system perpetuated segregation when eighty-five percent of the black children in a school district had remained in a previously all-black school and no white child had chosen to attend that school, and advised that "delays are no longer tolerable." Finally, in alexander v. holmes county board of education (1969) the Court declared that the time for racial integration of previously segregated school systems was "at once." Green and Alexander compelled integration of schools and other public facilities. Equality of condition had become the dominant means to achieve the goal of equality.

One can see a similar trend in the area of reapportionment. For the first half of the twentieth century, including the early years of the Warren Court, state legislatures were not apportioned solely on the basis of population. Upper houses of legislatures had a variety of means for electing their members, some deliberately unresponsive to demographic concerns, and few states apportioned legislative seats on the basis of one person, one vote. In Baker v. Carr (1962), however, the Court announced that it would scrutinize Tennessee's system of electing state legislators to see if it conformed to the population of districts in the state. Justice william j. brennan, a former student of Frankfurter's, rejected the political question doctrine Frankfurter had consistently imposed as a barrier to Court determination of reapportionment cases. Frankfurter wrote an impassioned dissent in Baker, but the way was clear for constitutional challenges to malapportioned legislatures. By 1964 suits challenging legislative apportionment schemes had been filed in more than thirty states.

Chief Justice Warren's opinion for the Court in reynolds v. sims (1964), a case testing Alabama's reapportionment system, demonstrated how the idea of equality had infused the reapportionment cases. "We are cautioned," he wrote, "about the dangers of entering into political thickets and mathematical quagmires. Our answer to this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.… To the extent that a citizen's right to vote is debased, he is that much less a citizen." Equality did not mean merely an equal opportunity to have representatives from one's district in a state legislature, but that all votes of all citizens were to be treated equally: voting, like race relations, was to be an area in which equality of condition was to prevail.

The Court provided for such equality even where the state's citizens had indicated a preference for another scheme. In lucas v. forty-fourth general assembly (1964), the Court invalidated Colorado's districting plan apportioning only one house of the legislature on a population basis. This plan had been adopted after a statewide referendum in which a majority rejected population-based apportionment for both houses. Warren found that the scheme did not satisfy the equal protection clause because it was not harmonious with the principle of one person, one vote. Voting was a condition of citizenship, not just an opportunity to participate in government.

In free speech cases, the Warren Court struggled to move beyond a "marketplace" approach, in which majorities could perhaps suppress speech with distasteful content, to an approach where all speakers were presumed to have an equal right to express their thoughts. The approach was first developed in "communist sympathizer" cases, where a minority of the Court objected to laws making it a crime to be a member of the Communist party or to advocate Communist party doctrine. Eventually, in brandenburg v. ohio (1969), a unanimous Court distinguished between "mere advocacy" of views and "incitement to imminent lawless action." That case involved statements made by a member of the Ku Klux Klan at a rally that were derogatory of blacks and Jews. The fact that the speaker was known to belong to an organization historically linked to racism and violence was not enough to hinder expression of his views.

Brandenburg united, without entirely clarifying, a number of strands of Warren Court first amendment doctrine. In the overbreadth cases, such as NAACP v. Alabama ex rel. Flowers (1964), aptheker v. secretary of state (1964), keyishian v. board of regents (1967), and united states v. robel (1967), the Court found that legitimate governmental prohibitions on speech that employed "means which sweep unnecessarily broadly" violated the First Amendment, because they might deter the behavior of others who could not legitimately be prohibited from speaking. In the symbolic speech cases, the Court considered the permissibility of wearing black arm bands (tinker v. des moines community school district, 1969) or burning draft cards (united states v. o ' brien, 1968) or mutilating flags (Street v. New York, 1969) as a means of protesting the Vietnam War. Finally, in the "sit-in" and "picketing" cases, such as cox v. louisiana (1964), Brown v. Louisiana (1966), and adderley v. florida (1966), the Court sought to distinguish protected "expression" from unprotected but related "conduct." In none of these areas was the Court's doctrinal position clear—draft card burners and picketers were denied constitutional protection, although flag mutilators and "sit-in" demonstrators were granted it—but the decisions revealed the Warren Court's interest in carving out an area of First Amendment protection that was not dependent on public support for the speaker or his actions.

The Warren Court also attempted to extend the First Amendment's reach into other doctrinal areas, notably defamation and obscenity. In new york times v. sullivan (1964) the Court concluded that common law libel actions could raise First Amendment issues. The Court's opinion, which found that the First Amendment gave rise to a constitutional privilege to make false and defamatory statements about public officials if the statements were not made with recklessness or malice, expressed concern that libel law could be used as a means of punishing "unpopular" speech. Justice Brennan's majority opinion referred to "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," and spoke of the "inhibiting" effects of civil damages on "those who would give voice to public criticism."

Once the First Amendment was seen as relevant to defamation cases, the future of common law principles in the area of libel and slander seemed precarious. New York Times v. Sullivan had established a constitutional privilege to publish information about "public officials." Rosenblatt v. Baer (1966) widened the meaning of "public official" to include a supervisor of a county-owned ski resort; Curtis Publishing Co. v. Butts (1967) and Associated Press v. Walker (1967) included "public figures" as well as public officials in the category of those in whose affairs the general public had a special interest; Time, Inc. v. Hill (1967) found a privilege to disclose "private" but newsworthy information.

The defamation cases showed the tendency of the equality principle to expand once set in motion: it seemed hard to distinguish different rules for public officials, public figures, and matters of public interest. Such was also true in the area of obscenity. Once the Court recognized, as it did in roth v. united states (1957), that First Amendment concerns were relevant in obscenity cases, and yet a core of unprotected expression remained, it was forced to define obscenity. Thirteen obscenity cases between 1957 and 1968 produced fifty-five separate opinions from the Justices, but the meaning of "obscene" for constitutional purposes was not made much clearer. Some Justices, such as Black and Douglas, decided that obscene speech was entitled to as much constitutional protection as any other speech, but a shifting majority of the Court continued to deny protection for expressions that, by one standard or another, could be deemed "obscene." Among the criteria announced by Court majorities for labeling a work "obscene" was that it appeal to a "prurient interest," and that it be "patently offensive" and "utterly without redeeming social value." Justice Stewart, in jacobellis v. ohio (1964), announced a different criterion: "I know [obscenity] when I see it." Eventually, after Redrup v. New York (1967), the Court began to reverse summarily all obscenity convictions whenever five Justices, for whatever reason, adjudged a work not to be obscene.

A final area of unprotected expression involved the fighting words doctrine of chaplinsky v. new hampshire (1942). A series of Warren Court cases, including Edwards v. South Carolina (1963), Gregory v. Chicago (1969) and even New York Times v. Sullivan, with its language about "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," may have reduced Chaplinsky to insignificance.

The pattern of First Amendment decisions, taken with its opinions on race relations and reapportionment, not only demonstrated the Warren Court's shifting conceptions of equality but stamped it in the popular mind as a "liberal" Court. Liberalism has been identified, in the years after World War II, with support for affirmative government and protection of civil rights; the Warren Court was notable for its efforts to insure that interventionist government and civil libertarianism could coexist. But in so doing the Warren Court redefined the locus of interventionist government in America. Brown v. Board of Education was a classic example. Congress and the state legislatures were not taking sufficient action to preserve the rights of blacks, so the Court intervened to scrutinize their conduct and, where necessary, to compel them to act. This role for the Court was a major change from that performed by its predecessors. "Liberal" judging in the early twentieth century, according to such defenders of interventionist government as Felix Frankfurter and louis d. brandeis, meant judicial self-restraint: the Supreme Court was to avoid scrutiny of state and federal legislation whose purpose was to aid disadvantaged persons. The Warren Court eschewed that role to become the principal interventionist branch of government in the 1950s and 1960s.

In addition to its decisions in race relations and reapportionment, two other areas of Warren Court activity helped augment its public reputation as a "liberal" Court. The first area was criminal procedure : here the Court virtually rewrote the laws of the states to conform them to its understanding of the Constitution's requirements. The most important series of its criminal procedure decisions, from a doctrinal perspective, were the incorporation doctrine cases, where the Court struggled with the question of whether, and to what extent, the due process clause of the fourteenth amendment incorporates procedural protections in the Bill of Rights, making those protections applicable against the states. The Warren Court began a process of "selective incorporation" of Bill of Rights safeguards, applying particular protections in given cases but refusing to endorse the incorporation doctrine in its entirety. This process produced some landmark decisions, notably mapp v. ohio (1961), which applied fourth amendment protections against illegal searches and seizures to state trials, and benton v. maryland (1969), which held that the Fifth Amendment's double jeopardy guarantee applied to the states. Other important "incorporation" cases were griffin v. california (1965), maintaining a right against self-incrimination; malloy v. hogan (1964), applying the Fifth Amendment's self-incrimination privilege to state proceedings; and duncan v. louisiana (1968), incorporating the Sixth Amendment's right to trial by jury in criminal cases.

A major consequence of selective incorporation was that fewer criminal convictions were obtained in state trials. Particularly damaging to state prosecutors were the decisions in Mapp and Mallory, which eliminated from state court trials illegally secured evidence and coerced statements of incrimination. The Court also tightened the requirements for police conduct during the incarceration of criminal suspects. Malloy v. United States (1957) insisted that criminal defendants be brought before a magistrate prior to being interrogated. miranda v. arizona (1966) announced a series of constitutional "warnings" that the police were required to give persons whom they had taken into custody. Miranda had been preceded by another significant case, escobedo v. illinois (1964), which had required that a lawyer be present during police investigations if a suspect requested one. Further, the landmark case of gideon v. wainwright (1963) had insured that all persons suspected of crimes could secure the services of a lawyer if they desired such, whether they could afford them or not.

The result of this activity by the Warren Court in the area of criminal procedure was that nearly every stage of a police interrogation was fraught with constitutional complexities. The decisions, taken as a whole, seemed to be an effort to buttress the position of persons suspected of crimes by checking the power of the police: some opinions, such as Miranda, were explicit in stating that goal. By intervening in law enforcement proceedings to protect the rights of allegedly disadvantaged persons—a high percentage of criminals in the 1960s were poor and black—the Warren Court Justices were acting as liberal policymakers.

Church and state cases were another area in which the Court demonstrated its liberal sensibility, to the concern of many observers. Affirmative state action to promote religious values in the public schools—heretofore an aspect of America's educational heritage—was likely to be struck down as a violation of the establishment clause. In engel v. vitale (1962) the Court struck down nondenominational prayer readings in New York public schools. A year after Engel the Court also invalidated a Pennsylvania law that required reading from the Bible in abington township school district v. schempp (1963) and a Maryland law that required recitation of the Lord's Prayer in Murrary v. Curlett (1963). (See religion in public schools.) In McGowan v. Maryland (1961), however, the Court permitted the state to impose sunday closing laws. Chief Justice Warren, for the Court, distinguished between laws with a religious purpose and laws "whose present purpose and effect" was secular, even though they were originally "motivated by religious forces." The Court invoked McGowan in a subsequent case, board of education v. allen (1968), which sustained a New York law providing for the loaning of textbooks from public to parochial schools.

Liberalism, as practiced by the Warren Court, produced a different institutional posture from earlier "reformist" judicial perspectives. As noted, liberalism required that the Court be both an activist governmental institution and a defender of minority rights. This meant that unlike previously "activist" Courts, such as the Courts of the late nineteenth and early twentieth century, its beneficiaries would be nonelites, and unlike previously "reformist" Courts, such as the Court of the late 1930s and 1940s, it would assume a scrutinizing rather than a passive stance toward the actions of other branches of government. Had the Warren Court retained either of these former roles, Brown, Baker v. Carr, and Miranda would likely not have been decided as they were. These decisions all offended entrenched elites and required modifications of existing governmental practices. In so deciding these cases the Warren Court was assuming that activism by the judiciary was required in order to produce liberal results. With this assumption came a mid-twentieth-century fusion of affirmative governmental action and protection for civil liberties.

Maintaining a commitment to liberal theory while at the same time modifying its precepts required some analytical refinements in order to reconcile the protection of civil liberties with claims based on affirmative governmental action. In Brown the desires of some whites and some blacks to have a racially integrated educational experience conflicted with the desires of some whites and some blacks to limit their educational experiences to persons of their own race. The Court chose to prefer the former desire, basing its judgment on a theory of the educational process that minimized the relevance of race. That theory then became a guiding assumption for the Court's subsequent decisions in the race relations area.

Similar sets of intermediate distinctions between goals of liberal theory were made in other major cases. In the reapportionment cases the distinction was between representation based on population, a claim put forth by a disadvantaged minority, and other forms of proportional representation that had been endorsed by legislative majorities. The Court decided to prefer the former claim as more democratic and then made the one-person, one-vote principle the basis of its subsequent decisions. In the school prayer cases the distinction was between the choice of a majority to ritualize the recognition of a public deity in the public school and the choice of a minority to deny that recognition as out of place. The Court decided to prefer the latter choice as more libertarian. In the criminal procedure cases the distinction was between a majoritarian decision to protect the public against crime by advantaging law enforcement personnel in their encounters with persons suspected of committing crimes, and the claims of such persons that they were being unfairly disadvantaged. The Court chose to prefer the latter claims as being more consistent with principles of equal justice.

When the Warren Court reached the end of its tenure, liberalism clearly did not merely mean deference toward the decisions of democratic and representative bodies of government. It meant deference toward these decisions only if they promoted the goals of liberal policy: equality, fairness, protection of civil rights, support for disadvantaged persons. Under this model of liberal policymaking, the Supreme Court was more concerned with achieving enlightened results than it was with the constitutional process by which these results were reached. Liberalism and judicial activism went hand in hand.

As it became clear that the Court's activism was designed to promote a modified version of liberalism, the Court became vulnerable to public dissatisfaction with liberal policies. Such dissatisfaction emerged in the 1970s. The internal contradictions of liberalism became exposed in such areas as affirmative action in higher education and forced busing in primary education, and the saving distinctions made by the Court in earlier cases appeared as naked policy choices whose legitimacy was debatable. If affirmative preference, based on race, for one class of applicants to an institution of higher learning results in disadvantage to other classes, equality of condition has not been achieved and equality of educational opportunity has been undermined. If some families are compelled to send their children to schools where they are racial minorities in order to achieve "racial balance" throughout the school system, the resulting "balance" may well disadvantage more people than it advantages. Equality and social justice have turned out to be more complicated concepts than mid-twentieth-century liberalism assumed.

The egalitarianism and the liberalism of the Warren Court paled in significance when compared to its activism. If contemporary America has become a "litigious society," as it is commonly portrayed, the Warren Court helped set in motion such trends. Social issues have habitually been transformed into legal questions in America, but the Warren Court seemed to welcome such a transformation, finding constitutional issues raised in contexts as diverse as reapportionment and prayers in the public schools. As the Court created new sources of constitutional protection, numerous persons sought to make themselves the beneficiaries. Sometimes the Court went out of its way to help the organizations litigating a case, as in the civil rights area. The result was that the lower courts and the Supreme Court became "activist" institutions—repositories of grievances, scrutinizers of the conduct of other branches of government, havens for the disadvantaged.

In the academic community, Warren Court activism was from the first regarded as more controversial than Warren Court egalitarianism. The reason was the prominence in academic circles of a two-pronged theory of judicial review, one prong of which stressed the necessity of grounding judicial decisions, in the area of constitutional law, in textually supportable principles of general applicability, and the other prong of which resurrected Frankfurter's conception of a limited, deferential role for the Court as a lawmaking institution. The Warren Court, according to academic critics, repeatedly violated the theory's dual standards. Decisions like Brown v. Board, Baker v. Carr,griswold v. connecticut (1965), a case discovering a right of privacy in the Constitution that was violated by statutes forbidding the use of birth control pills, and harper v. virginia board of elections (1966), a case invalidating poll tax requirements on voting as violating the equal protection clause because such requirements conditioned voting rights on wealth, had not been sufficiently grounded in constitutional doctrine. There was no evidence that the Fourteenth Amendment was intended to reach segregated schools and there were no judicial decisions supporting that position. The Constitution did not single out for protection a right to vote, let alone a right to have one's vote weighed equally with the votes of others. "Privacy" was nowhere mentioned in the constitutional text. The framers of the Constitution had assumed a variety of suffrage restrictions, including ones based on wealth. In short, leading Warren Court decisions were not based on "neutral principles" of constitutional law.

Nor had the Court been mindful, critics felt, of its proper lawmaking posture in a democratic society where it was a conspicuously nondemocratic institution. In Brown it had ostensibly substituted its wisdom for that of Congress and several Southern states. In Baker it had forced legislatures to reapportion themselves even when a majority of a state's voters had signified their intention to staff one house of the legislature on grounds other than one person, one vote. In Engel v. Vitale it had told the public schools that they could not have government-formulated compulsory prayers, even though the vast majority of school officials and parents desired them. It had fashioned codes of criminal procedure for the police, ignoring Congress's abortive efforts in that direction. It had decided, after more than 200 years of defamation law, that the entire area needed to be reconsidered in light of the First Amendment.

A role for the Court as a deferential, principled decision maker was, however, not sacrosanct. Few Supreme Courts had assumed such a role in the past. All of the "great cases" in American constitutional history could be said to have produced activist decisions: marbury v. madison (1803), establishing the power of judicial review; mcculloch v. maryland (1819) and gibbons v. ogden (1824), delineating the scope of the federal commerce power; dred scott v. sandford (1857), legitimizing slavery in the territories; the legal tender cases, deciding the constitutionality of legal tender notes; pollock v. farmers loan and trust (1895), declaring an income tax unconstitutional; lochner v. new york (1905), scuttling state hours and wages legislation; united states v. butler (1936), invalidating a major portion of the New Deal's administrative structure. Activism was an ancient judicial art.

The Warren Court's activism differed from other Courts' versions principally not because its reasoning was more specious or its grasp of power more presumptuous but because its beneficiaries were different. Previous activist decisions had largely benefited entrenched elites, whether slaveowners, entrepreneurs, "combinations of capital," or businesses that sought to avoid government regulation. The activist decisions of the Warren Court benefited blacks, disadvantaged suburban voters, atheists, criminals, pornographers, and the poor. The Warren Court's activism facilitated social change rather than preserving the status quo. The critics of the Court had forgotten that the role they espoused for the judiciary had been created in order to facilitate change and promote the interests of the disadvantaged. In the 1950s and 1960s the "democratic" institutions charged with that responsibility had become unresponsive, so the Warren Court had acted in their stead. It was ironic that the same critics who were shocked at the Court of the 1930s' resistance to the New Deal should protest against a Court that was reaching the results they had then sought.

Activism was the principal basis of the Court's controversiality; egalitarianism its dominant instinctual reaction; liberalism its guiding political philosophy. The combination of these ingredients, plus the presence of some judicial giants, gave the Warren Court a prominence and a visibility that are not likely to be surpassed for some time. But even though countless persons in the American legal profession today were shaped by Warren Court decisions, one can see the Warren Court receding into history. That Court seemed to have been led, in the final analysis, by a conception of American life that appeared vindicated by the first fifty years of twentieth-century experience. That conception held that American society was continually progressing toward a nobler and brighter and more enlightened future. As Earl Warren wrote in a passage that appears on his tombstone:

Where there is injustice, we should correct it;
where there is poverty, we should eliminate it;
where there is corruption, we should stamp it out;
where there is violence, we should punish it;
where there is neglect, we should provide care;
where there is war, we should restore peace;
and wherever corrections are achieved we should add
them permanently to our storehouse of treasures.

In that passage appears the Warren Court sensibility: a sensibility dedicated to the active pursuit of ideals that have seemed less tangible and achievable with the years.

G. Edward White
(1986)