'A Remembrance of Things Past': Reflections on the Warren Court and the Struggle for Civil Rights

Abstract

'A Remembrance of Things Past' examines the continuing effects of both the Warren Court's doctrinal holdings and jurisprudential style in the field of civil rights and civil liberties. Although the Warren Court's habit of disregarding legal process values when deciding important civil rights and civil liberties cases has undermined the precedential impact of its decisions over time, one would be mistaken to underestimate the continuing effects of the Warren Court's jurisprudential efforts in these fields. To a surprising degree, Warren Court decisions continue to set the terms of debate in many areas (including substantive due process, equal protection, and state action doctrine). Moreover, the Supreme Court's recent decision in Brentwood Academy suggests that the Warren Court's jurisprudential innovations might retain relevance even after the Burger and Rehnquist Courts have attempted to restrict the precedential value of Warren Court decisions in a particular field (in this case, the state action doctrine). In Brentwood Academy, the Supreme Court recognized a new 'entwinement' test for state action that requires an open ended, fact intensive inquiry into the relationship of the government to an ostensibly private entity. In many respects, Brentwood Academy represents a return to the Warren Court's expansive approach to defining the outer limits of state action - an approach that the Burger and Rehnquist Courts had largely rejected in a series of cases beginning in the mid-1970s. The essay suggests that Brentwood Academy demonstrates the surprising resilience of the Warren Court's approach to constitutional adjudication. The essay also serves to introduce three subsequent papers that appear as part of the Frances Lewis Law Center's symposium on 'The Jurisprudential Legacy of the Warren Court.' These papers, authored by Professor Lillian BeVier, John O. Calmore, and Garry Peller, vibrantly illustrate the continuing importance of the Warren Court's legacy in the field of civil rights and civil liberties. Although these distinguished scholars maintain very different views about the continuing effects of the Warren Court's precedents in the field of civil rights and civil liberties, their papers provide additional evidence of the importance of the Warren Court and its continuing relevance as a subject for constitutional law scholars.