Rehnquist Courts Research Articles

Taking Note: Justice Harry A. Blackmun's Observations from Oral Argument about Life, the Law, and the U.S. Supreme Court

Taking Note: Justice Harry A. Blackmun's Observations from Oral Argument about Life, the Law, and the U.S. Supreme Court

The Disappearing First Amendment (Preface and Chapter 10)

The standard account of the First Amendment posits that the U.S. Supreme Court consistently has expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. For example, the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak. At the same time, however, the Justices have been considerably less willing than their predecessors to interpret the First Amendment to impose affirmative obligations on the government to facilitate speech when it has the ability, but not the will, to do so. For citizens who need the government’s assistance in order to speak – for example, would-be speakers who require access to public property to engage in protest activity – free speech rights have declined significantly under the Roberts and Rehnquist Courts. The Warren Court, and to some extent the Burger Court as well, embraced open-ended balancing tests to decide First Amendment cases that implicated the government’s managerial domain. Using this approach, the Warren Court pioneered First Amendment protection for government employees, students and faculty members at the nation’s public schools, colleges, and universities, and transborder speech activity. It also greatly expanded constitutionally-mandated access to public property for protest and even recognized free speech easements to private property. In all of these areas, the Warren Court developed and deployed balancing tests that weighed the interests of would-be speakers against the government’s legitimate interests in exercising managerial control over its resources. This approach had the decided benefit of making it possible for more citizens, many possessed of average means, to participate meaningfully in the process of democratic self-government. The Disappearing First Amendment advances an empirical claim, a doctrinal claim, and a normative claim. First, as an empirical matter, careful consideration of the relevant lines of authority shows that in many important areas, First Amendment rights have declined, rather than expanded, over time. Second, in a wide variety of areas, existing First Amendment rules could be significantly improved and strengthened to better protect would-be speakers from government efforts to distort the political marketplace of ideas. Third, and finally, open-ended balancing tests that facilitate the ability of ordinary citizens to participate meaningfully in the process of democratic deliberation should be preferred, at least in some contexts, to bright line, categorical rules that produce consistent results but a far less vibrant political marketplace of ideas. If free and open democratic deliberation is essential to making elections an effective means of securing government accountability, then the First Amendment should be interpreted and applied to protect more speech, rather than less speech.

The Market Metaphor, Radicalized: How a Capitalist Theology Trumped Democracy

An entanglement between economic and political thought stands as a causal factor behind Trump's 2016 victory. Enshrined as constitutional law, this way of thinking allows wealth, whether a candidate's personal wealth or the wealth of her supporters, to serve as a requirement for mounting a viable campaign (and for maintaining one beyond its natural life cycle). It also allows vulgar, misleading, and hateful speech to play as large a role as a campaign or its supporters desire. Plutocracy and illiberal populism are among the reasons to revisit the Supreme Court's longstanding use of a market metaphor to ascertain the First Amendment's demands. Now an unstable and politicized facet of constitutional interpretation, the “marketplace of ideas” demands attention. In the space of forty years (Buckley v. Valeo to McCutcheon v. FEC), the Court moved from (a) an open marketplace as a metaphor for a robust speech environment that would lead to democratic responsiveness and public welfare, to (b) an unregulated marketplace as a system justified in its own right, not as means to a democratic end, much less as a mere metaphor. This doctrinal transformation from the Burger and Rehnquist Courts to the Roberts Court explains the roots of the deregulatory turn in campaign finance, justifies government accountability to large donors and spenders, and casts light on the potential for an illiberal, kleptocratic presidency today. In the end, however, it is not the market metaphor itself that has made democracy so vulnerable. The metaphor could be repurposed or simply reclothed in its original civic garb. What must be exposed and countered, rather, is the Roberts Court's radicalization of the metaphor, which springs from a theological, even theocratic, devotion to laissez-faire ideals.

The Supreme Court, 2013 Term Foreword: The Means of Constitutional Power

This Foreword argues that the constitutional text favors an approach to both statutory and structural constitutional law that defers, within broad bounds, to congressional authority to determine how to implement constitutional power. In several important contexts, the Constitution grants implementation powers to Congress. These grants include the Necessary and Proper Clause, which provides that Congress shall have the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The upshot of that explicit assignment is not hard to describe. Unless it violates some other provision of the Constitution, when Congress specifies a reasonable means of carrying out its own power or the powers of the coordinate branches, the other branches must respect that decision. This Foreword argues that the Rehnquist and Roberts Courts have given effect to this allocation of implementation power in statutory cases, but not in structural constitutional cases. The Court’s “new textualism” in statutory interpretation builds on a post-New Deal tradition that treated the Necessary and Proper Clause as a broad source of congressional authority to enact odd, and even silly, laws, as long as they satisfied a very minimal threshold of rationality. By enforcing the statutory text, warts and all, textualism enables Congress to use its words reliably to prescribe — and make stick — rough, awkward, and often ill-fitting solutions to complex and contested social problems. In contrast, the Court's “new structuralism” in constitutional law transforms the Necessary and Proper Clause into a delegation of power to the courts to define abstract structural policies. In a novel reading of the clause, both the Rehnquist and Roberts Courts have held that a law is not “proper” if it cannot satisfy the Court's own conception of freestanding principles of federalism and separation of powers. Contrary to the Constitution’s express allocation of implementation power, this approach gives the Court rather than Congress primary responsibility for determining what means are “necessary and proper.”

How Antidiscrimination Law Learned to Live with Racial Inequality

This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for both racial inequality and racism itself, hastening the day when race will be, as the Supreme Court has put it, “truly irrelevant.” And indeed, the logical simplicity and moral clarity of the colorblindness ideal give it a certain intuitive appeal.This Article argues that recent history in fact belies such claims. Critics of the colorblindness model have long observed that the Supreme Court’s insistence on race-neutrality has proven a poor remedy for entrenched racial inequality. Remarkably - and here is the paradox - the Court’s very enforcement of the colorblindness ideal has itself fueled the reproduction of racial difference. In the service of colorblindness, the Burger and Rehnquist Courts, in dialogue with a host of influential social scientists and public intellectuals, redefined racial inequality from a wrong in and of itself - and as such a presumptive object of civil rights enforcement - to a morally benign legal irrelevancy. The Court did so by reconstructing African Americans from a class characterized, for the purpose of civil rights enforcement, by the systematic social, economic, and political subordination endured by its members, to a class characterized by its ethnically distinctive culture. By unveiling this critically neglected racial project, this Article casts new light on how American antidiscrimination law, though unequivocally committed to racial equality in theory, has learned to live with racial inequality in fact.

Measuring judicial activism

This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism to a more objective, empirically-based approach to analyzing activism in appellate courts. Focusing on the justices' voting behavior on the United States Supreme Court from 1954 to 2004, the book first identifies theoretical dimensions to judicial activism based on scholars' attention to the Court's potential for countermajoritarian action. In particular, the book considers the propensity of the justices to (1) strike down legislation enacted by state and federal elected officials, (2) invalidate executive branch actions in connection with judicial review of administrative agencies, (3) expand the power of the federal judiciary through increasing access to the courts, and (4) alter prevailing legal rules by overturning precedent. All of these dimensions are also evaluated in terms of the justices' propensities to vote in these areas in accordance with their own personal policy preferences. The final chapter creates a “judicial activism scale” for the justices serving on the Court during the Warren, Burger, and Rehnquist Courts.

The Supreme Court and the Sophisticated Use of DIGs

Almost all cases reach the U.S. Supreme Court’s merits docket through discretionary grants of writs of certiorari. On rare occasions, the Court will dismiss a writ of certiorari as improvidently granted, or DIG the case. The DIG process has received relatively little attention in the scholarly literature. This article fills that gap in several ways. First, it documents and analyses the 155 cases the Court DIGged in the Warren, Burger, and Rehnquist Courts (1954 through 2004 Terms). Second, the article examines how the Court’s decision to DIG a case relates to a number of legal and extralegal factors. Finally, it considers whether DIGs should be conceptualized as, or are sometimes examples of, sophisticated strategic behavior by the Justices.

Do United States Supreme Court Justices Write Less Frequently as They Age?

Proponents of eliminating life tenure for United States Supreme Court justices often contend that the status quo encourages justices to cling to their positions long after their productivity and overall capability have declined. In this account, the tendency of justices to overstay their welcome results from a combination of the Court’s shrinking docket, availability of law clerks to assume the burden of case selection and to aid in drafting opinions, and the unwillingness to let one’s political opponents fill one’s seat. But do justices actually become less productive as they age? This study examines one particular manifestation of productivity that rests fully within the control of individual justices: the propensity for writing separate opinions. Using data from the Burger and Rehnquist Courts, it finds, on balance, that while older justices do experience a decline in their authorship of concurrences and dissents, this decline is small relative to other factors influencing the propensity to write, such as justices’ ideological location on the Court and case-specific considerations.

Locating Supreme Court Opinions in 'Doctrine Space'

A significant limitation in the empirical analysis of judicial politics has been the difficulty of measuring judicial policy. Theories of bargaining and opinion writing make predictions about where an opinion will fall in policy space, but empirical tests of those theories have not benefited from direct measures of opinion location. This paper develops a scaling model to estimate opinion locations and justice ideal points along a common, continuous dimension using the citations between opinions as data. We assume that each opinion has a fixed location in this unidimensional doctrine space and that the probability of a citation that affirms rather than disputes the doctrine of the precedent decreases as the doctrinal distance between them increases. This proximity citation model is applied to original datasets of citations in search and seizure and freedom of religion opinions written by the Warren, Burger and Rehnquist Courts. We use the resulting estimates of opinion content to evaluate median and non-median voter theories of Supreme Court bargaining and opinion writing. We find striking empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition as opposed to the court's median or the opinion author's ideal point. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this paper can facilitate a variety of future research.

The Rise of the Choral Court: Use of Concurrence in the Burger and Rehnquist Courts

Justices’ goals when writing concurrences continue to elude scholars. This project extends Baum’s contention that justices’ goals are bifurcated. The authors argue that justices use concurrences as means to both speak about their legal policy preferences and win by being members of the majority voting coalition. An analysis of the Burger and Rehnquist Courts’ concurring behavior illustrates that members of the Court are both authoring and joining concurrences in ways previously undocumented. Specifically, justices have become comfortable not only authoring concurrences but regularly joining others’ separate opinions as well—a trend the authors call choral-Court decision making.

Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. By Jonathan Simon. New York: Oxford University Press, 2007. Pp. 330. $29.95 cloth.

Governing through Cnme: How the War on Cnme Transformed American Democracy and Created a Culture of Fear. By Jonathan Simon. New York: Oxford University Press, 2007. Pp. 330. $29.95 cloth. In Governing through Cnme, Simon explores the state's exploitation of ordinary Americans' fears about and security over the past four decades. In arguing that a variety of state actors govern though crime, Simon meticulously traces the development of the so-called on from its creation during the Johnson Administration through the contemporary on terrorism. Simon-who selfconsciously attempts provoke debate on the negative consequences of American leaders' focus on crime-aims depict the culture of fear that has been created around and its implications for American life and American democracy in a variety of contexts. The book's first four chapters, Power, Authority, and Criminal Law, Prosecutor-in-Chief, We Are the Victims, and 'Judgment and Distrust, display the structural, historical, and theoretical basis for governing through crime. After setting out some of the most visible attributes of the on in Chapter 1-crime rate and imprisonment statistics and the structural arrangement of power in the regulation of crime-in Chapter 2, Simon outlines the metamorphosis of executive power in the form of presidents' and state governors' quest define themselves and their objectives in relation crime. He tracks the executive branch's prosecution complex from the mid-1960s, when President Lyndon Johnson first declared a war on crime as part of his Great Society through the second President Bush's on terrorism. Simon convincingly argues that the changes implemented as a result of governing through have not necessarily increased security. Rather, governors' and presidents' shouldering of the mantle of the prosecutor has increased spending on control and has also expanded criminal sanctions while creating powerful vulnerabilities. In Chapters 3 and 4, Simon explores the impact of the on on legislatures and courts. Chapter 3 explores legislators' manipulation of the public's fear of crime. Simon contends that at the federal level, governing through in the contemporary period originated with the Safe Streets Act of 1968. Among other things, this act changed the rules of evidence and authorized new federal funding for law enforcement, corrections, and courts. This legislation, according Simon, created a harsh but lasting representational legacy that to be for the people, legislators must be for victims and law enforcement, and thus they must never be for (or capable of being portrayed as being for) criminals or prisoners as individuals or as a class (p. 100). The next chapter addresses the jurisprudence of crime, beginning with the Warren Court's criminal procedure revolution and continuing through its rollback during the Burger and Rehnquist courts. …

Judicial Review by the Burger and Rehnquist Courts

In this article, the authors assess various influences on U.S. Supreme Court justices' behavior in cases involving judicial review of federal, state, and local statutes. Focusing on challenges to the constitutionality of statutes considered by the Burger and Rehnquist Courts during the 1969 to 2000 terms, the authors evaluate the impact of attitudinal, institutional, and contextual variables on individual justices' votes to strike or uphold statutes challenged before the Court. The authors find that the justices' ideological responses to the challenged statutes, the extent of amicus support for the statute, the support of the solicitor general, congressional preferences, and the existence of a civil liberties challenge to the statute are all significantly related to the justices' votes to invalidate or uphold statutes. They also find that in the Rehnquist Court, conservative justices are less likely to strike state statutes but more likely to strike federal laws than their liberal counterparts, while no similar “federalism” dimension emerges in the Burger Court. Indeed, in the Burger Court, a distinct pattern emerges with conservative justices more restraintist than liberal justices in both state and federal cases.

The Supreme Court and DIGs: Agenda Setting and Strategic Behavior

Almost all cases reach the U.S. Supreme Court's docket through discretionary grants of writs of certiorari. On rare occasions the Court will dismiss a writ of certiorari as improvidently granted, or DIG the case. The DIG process has received relatively little attention in the scholarly literature. This paper fills that gap in several ways. First, it documents the 155 cases the Court has DIGged in the Warren, Burger, and Rehnquist Courts (1954 through 2004 Terms). It then examines related empirical issues, including how often the Court, collectively or through individual Justices, explains or criticizes a DIG; how often the issue presented in the DIGged case returns to the Court in subsequent litigation; and how the disposition of DIGged cases compares to cases where the Court considered but declined to DIG. The paper then considers how the Court may use DIGs to control the number and types of cases on the docket. Finally, it considers whether DIGs should be conceptualized as, or are sometimes examples of, strategic behavior by the Justices.

:The People Themselves: Popular Constitutionalism and Judicial Review

For the last two generations, the central preoccupation of constitutional historians seems to have been to provide a historical foundation to support the work of the Warren, Burger, and Rehnquist Courts in expanding the reach of the Fourteenth Amendment's Equal Protection and Due Process clauses, in order to prevent state legislatures or state law enforcement officials from abusing the rights of criminal defendants, religious and ethnic minorities, women, and homosexuals. Liberals cheered these developments, and liberals wrote those histories that made it seem that from the time of John Marshall forward it had been the job of the United States Supreme Court, consistently with our constitutional scheme, to protect minorities from discrimination by the majority. Conservatives, not much in evidence in the academy, tended to view these Supreme Court decisions with some suspicion, believing that the Court was making up purported constitutional rights out of whole cloth, that the Supreme Court had been legislating rather than judging, and that such conduct was inconsistent with the Constitution, which leaves matters of making up new law to the legislatures and to the people themselves.

The Constitutional Structure and the Jurisprudence of Justice Scalia

Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, and school prayer - with relatively few important doctrinal innovations in these areas. The second Rehnquist Court, by contrast, focused on constitutional federalism, including the scope of federal power under the Commerce Clause and Section 5 of the Fourteenth Amendment, Tenth Amendment limitations on federal power, and state sovereign immunity from private lawsuits reflected in the Eleventh Amendment. Unlike the first Rehnquist Court, the second has generated a number of important innovations. Professor Merrill also suggests that Justice Antonin Scalia made a strategic choice to shift his priorities from social issues to constitutional federalism circa 1994. This hypothesis is unpersuasive. As Professor Merrill acknowledges, Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court. Thus, it is not surprising that Justice Scalia did not arrive on the Court with a full-fledged federalism agenda or that he preferred to wait for briefing and argument before reaffirming an important precedent like Hans v. Louisiana. From the beginning, however, Justice Scalia has been a strong proponent of constitutional federalism. In fact, with only one arguable exception, Justice Scalia has voted to uphold the constitutional prerogatives of the states in every major federalism case decided since he joined the Court. Justice Scalia does appear to have an agenda of sorts in federalism cases, although not the one that Professor Merrill suggests. Justice Scalia's goal in these cases is to uphold the original constitutional structure in order to respect the Founders' constitutional design and to protect individual liberty. Professor Merrill acknowledges Justice Scalia's interest in the constitutional separation of powers, but fails to recognize the connection between separation of powers and federalism. Neither feature of the constitutional structure was meant to be an end in itself. Rather, both separation of powers and federalism were designed to check government power and to secure individual liberty. Thus, even though Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court, it is not surprising that he quickly came to regard federalism - like separation of powers - as an essential element of the Founders' constitutional design.

Progressive Political Theory and Separation of Powers Law on the Burger and Rehnquist Courts

This article proposes a positive explanation why the Supreme Court has erratically veered from functionalism to formalism and back in its separation of powers law for almost 30 years. The explanation suggests that most members of the Court are drawing on normative ideas about separation of powers heavily influenced by Progressive political theory. The Progressives generated a theory of government the article identifies as the Progressive theory of apolitical administration. The Progressives held that politics, the formation of a national will, needed to be kept separate from administration, the rational implementation of that will. The basic distinction between politics and administration became an important staple of legal education during and shortly after the New Deal - when most of the Justices on the Burger and Rehnquist Courts went to law school. Most of the Justices on these Courts have relied on Progressive norms about independent administration in deciding separation of powers cases since the 1970s. These Justices have applied formalism and functionalism selectively to promote the Progressive theory of apolitical administration in the Court's case law. If a law transfers power to independent agency administrators, most Justices apply functionalism, cite Progressive normative values in the functionalist analysis, defer to Congress, and uphold the law. If, however, a law enables politicians, and especially members of Congress, to supervise agency administration closely, the same Justices apply formalism to justify striking it down. The article has two main lessons. First, it explains in positive terms a phenomenon that has puzzled administrative-law commentators for years. Second, it offers a useful correction to several leading retrospectives written to date about the Rehnquist Court. The Progressive/New Deal influence in the Court's separation of powers law suggests that there are strong intellectual limits on the extent to which the Rehnquist Court or a future Court may repudiate the constitutional achievements of the New Deal.

What Moves the Court? Interest Groups, Public Opinion, Court Composition and the Solicitor General

The impact of several major types of interest groups, the solicitor general, Court composition, and American public opinion on U.S. Supreme Court decision-making is tested with a poll-matched database from the Warren, Burger, and Rehnquist Courts. Results indicate that the solicitor general’s position, American public opinion, Court composition, and a few (but not most) interest groups all significantly and independently affect Supreme Court decision-making.

The Battle over "Turning Back the Clock" in Constitutional Interpretation

28Historically Speaking · November 2002 The Battle over "Turning Back the Clock" in Constitutional Interpretation Stephen B. Presser Do we still have a Constitution? There is no doubt diat die "original" understanding of Constitutional exegesis was that the document ought to be interpreted in an objective manner, according to the "original" understanding of Constitutional terms.1 As everyone who has gone to law school since 1954 knows, however, die United States Supreme Court, in die middle ofdie 20di century, departed from diat original philosophy ofConstitutional interpretation , in order to bring die Constitution more in line widi what die Justices diought to be convenient for a modern democracy. The dieory, consistent widi die still-prevailing jurisprudence of "legal realism," was that the Constitution ought to be viewed as a "living document," which should change widi die times. As Earl Warren remarked, in deciding die landmark school desegregation case of Brown v. BoardofEducation ofTopeka (1954), "we cannot turn die clock back" to die time when die Fourteendi Amendment was passed to understand what it ought to mean today. Warren's Court (and, to a great extent, die Burger and Rehnquist Courts which followed his) altered die meaning ofmany provisions ofdie Constitution, in order substantially to limit die scope ofwhat die states could do in terms of policy-making, and in order to promote a secularized and individualized philosophy ofgovernment. Woe be to diose who challenge die Warren (and Burger and Rehnquist) Court's decisions in die areas ofrace, religion, and, in particular , abortion. Consider, for example, Robert Bork, die victim of a grossly unfair attack by so-called "public interest groups" and dieir sympadiizers in die Senate which kept him off the Supreme Court. More recently, Bork argued in die New Criterion diat die Supreme Court's decisions in die second half of the 20th century regarding "speech, religion, abortion, secularity, welfare , public education and much else" made die Court, in effect "die enemy oftraditional culture."2 Widi diis essay, Bork sought to rally support for judicial nominees who espouse original intent. In response,Jeffrey Rosen, a Holmes,Jr., the patron saint ofdie currendy dominantjurisprudential school oflegal realism : "The substance ofdie law, at any given time, pretty nearly corresponds, so far as it goes, widi what is dien understood to be convenient ." Holmes got it wrong. So does Rosen. Bork is right. A Constitution diat is a "living law professor and the legal affairs editor of document" is a rope ofsand, and offers little die New Republic (a reliable indicator ofwhat hope ofdoing what die Constitution is suppasses for moderation among media views), posed to do. The Constitution was intended blasted Bork in die New York TimesMagazine, to reign in die excesses of die state legislaas "living in a dystopian time warp."3tures, which were seeking to appease popular opinion byissuingincreasingly worthless paper currency and by suspending debts. The Constitution put in place a federal government that was to make commercial markets more secure by centralizing die creation of currency, and by forbidding interference widi private contracts on the part ofdie state governments. As high school students used to learn, the federal Constitution also attempted to put in place structural mechanisms which would prevent even die federal government from becoming too powerful. These were basically two-fold. One was die principle diatwe now know as "federalism" or "dual sovereignty," the notion that die federal government was to be one of limited and enumerated powers, with die state governments as die primary legislative and policy-making bodies for the country. The Constitution was supposed to deal widi common concerns of all die states, such as interstate commerce, navigation, a circulating currency, and national defense. Odier matters, including die basic doctrines ofcontracts, torts, property , criminal law, family law, and religion were to be the province ofstate and local governments . The second structural safeguard was borrowed from Montesquieu, and diat Warren Burger at LaGuardia Airport, 1953.© Bettmanns/Corbis Bork blamed die Court for die current "suffocating vulgarity of [our] popular culture ," but Rosen argued that "MTV, the Internet, the expansion ofsexual equality and other democratizing forces of popular culture " have led to die decline of traditional values. Indeed, Rosen praised die "Supreme Court's relatively moderate...

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

'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.

The Power of Congress over the Rules of Precedent

In the Passenger Cases Chief Justice Taney expressed his willingness always to reconsider his Court’s constitutional doctrines. In Dickerson v. United States the Court declined to do as Chief Justice Taney said he would have done and adhered to Miranda v. Arizona without saying whether a majority of the Justices believed Miranda to have been correctly decided as an original matter. Suppose that some time between the Taney and Rehnquist Courts Congress had adopted a statute purporting to codify Chief Justice Taney’s suggestion by providing that the Supreme Court shall depart from its precedents whenever it believes them to be incorrect.