The Last Days of the Warren Court: How Justice Brennan Orchestrated Shapiro v. Thompson (1969)

Abstract

The Last Days of the Warren Court:How Justice Brennan Orchestrated Shapiro v. Thompson (1969) Jordan Lampo (bio) On April 21, 1969, the Supreme Court invalidated state durational residency requirements for receipt of public assistance and helped establish a fundamental, constitutional right to travel in Shapiro v. Thompson.1 In announcing Shapiro, Justice William J. Brennan "read lengthy excerpts" from his majority opinion to spectators in the Courtroom.2 Brennan's prioritization of protecting the poor through the Fourteenth Amendment in Shapiro did not come as a surprise that day. Since he joined the Warren Court in 1956, Brennan and his fellow justices had been addressing wealth discrimination, hoping to apply the Equal Protection Clause to protect the rights of the poor. Chief Justice Earl Warren dissented in Shapiro. This was unusual. Brennan and Warren had been allies for twelve years, more often than not voting together on landmark cases. Notably, the chief justice had voted with the majority and Brennan in: Gideon v. Wainwright (1963),3 holding the Sixth and Fourteenth Amendments guarantee a right for legal counsel to an indigent defendant accused of a felony; Douglas v. California (1963),4 holding that states must provide indigent persons with counsel on a first appeal of right to challenge a criminal conviction; and Harper v. Virginia Board of Elections (1966),5 holding a state law conditioning the vote on payment of a $1.50 poll tax denied equal protection. But Shapiro was different. Brennan had to deploy his persuasive powers to marshal a majority without Warren, who was about to retire. The story of how Brennan orchestrated Shapiro bears re-examination, as it took many twists and turns to arrive at the final decision. Moreover, the case took on heightened drama as some of the justices were worried about antagonizing Congress with a decision that [End Page 75] would require states to pay assistance to indigents at a time when Congress was debating whether to raise judicial salaries. The Warren Court The Warren Court spanned fifteen years (1953–1969) and Brennan served for twelve of them.6 One of Warren's clerks, Robert T. Lasky, summed up the relationship between the chief justice and the associate justice: Spearheaded by … Warren and … Brennan, the Warren Court radically expanded the reaches of the judicial power and altered constitutional law in a way that reverberates to this day. … Warren was the leader of the liberal wing; Brennan would provide its intellectual underpinnings.7 Lasky said Warren knew Brennan, the "intellectual anchor" who did "real hard, heavy lifting from a thinking standpoint," could articulate legal arguments in a manner the former governor of California could not.8 Another clerk, Paul J. Meyer, recalled that Warren and Brennan were always "very close" and that Brennan was "clearly Warren's tight ally of the Court."9 Their companionship has led historians to refer to their overlapping time on the bench not as the "Warren Court," but "the Brennan Court."10 Brennan and Warren mostly voted in lockstep. Warren often tasked Brennan with convincing a fifth justice to join them alongside liberal-leaning Justices Hugo L. Black and William O. Douglas.11 If Brennan was successful in garnering a fifth vote, then Warren would have the assignment power. Often, Warren assigned Brennan to write opinions in seminal cases. Notably, the chief justice assigned him Baker v. Carr,12 the reapportionment case that Warren deemed "the most important case of [his] tenure,"13 and Cooper Click for larger view View full resolution Earl Warren and William J. Brennan served together on the Court for 12 years and mostly voted in lockstep. Above they are shown examining Chief Justice John Marshall's Courtroom notes at the National Archives in 1966. [End Page 76] v. Aaron,14 a 1958 case denouncing Southern resistance to school desegregation. Thurgood Marshall was appointed in 1967, and soon became Brennan's ally.15 Marshall's presence gave the Court a solid block of seven liberal justices. Such a large number of like-minded justices put Brennan at ease—he no longer needed to rely on using Warren's opinion assignment power to force wavering justices to author opinions that aligned with his liberal values...