Policy in Search of Law: the Warren Court from Brown to Miranda

Abstract

The Warren Court induces schizophrenia. On the one hand it is difficult for anybody with a civilized political sensibility not to admire the policy content of the Supreme Court's judgments during Earl Warren's Chief Justiceship. If the three areas of decision-making with which this paper is concerned — segregation, reapportionment, and the rights of the criminal suspect — are examined, the Supreme Court clearly was on the side of the angels. It declared segregation to be unconstitutional. In a series of decisions the Court ended the gross malapportionment of legislative districting both at state and federal levels. Finally, the Warren Court attempted to change the balance between the criminal suspect and the police, by substantially increasing the restrictions on the latter's freedom of action. And yet, despite one's approval for the policy embodied in these decisions, there is something curiously disconcerting about the Court's judgments. One has a very strong sense that something has gone awry. This sense arises from the manner and mode in which the opinions of the Court are constructed. All the judgments under consideration in this paper — Brown v. Board of Education, Baker v. Carr, Reynolds v. Sims, and Miranda v. Arizona — share a common characteristic, a curious lack of substance, a lack of historical, constitutional, and legal substance. In other words, there is an absence of the kind of argument in the Supreme Court's opinions in these cases, which distinguishes a judicial decision from any other sort of decision.