Warren Court's Decisions Research Articles

The Classical Liberal Constitution: The Uncertain Quest for Limited Government

The Classical Liberal Constitution is Richard A. Epstein's Democracy and Distrust. John Hart Ely's elegant masterwork offered a defense of many of the Warren Court's decisions that focused on the vital role courts should play in ensuring a well-functioning political process. Faced with ambiguous and vague constitutional texts, Ely said, judges should interfere with legislative decisions when they find the political process undeserving of trust—both because judges are relatively well suited to police “process” and, crucially, because a well-functioning political process is the idée fixe of our actual Constitution. If Ely was a progressive iconoclast in search of limiting principles, Epstein is a conservative iconoclast, more learned and less elegant, who has found expansive ones. For Epstein, interpretive disputes should be resolved by resorting to what he identifies as classical liberal theory, a middle ground between order and anarchy that eschews social control, promotes individual rights—and especially property rights—and is deeply suspicious of democratic politics. As Ely did, Epstein defends his guiding political principle not just on normative and institutional grounds but also, crucially, on the premise that the principle is embedded in our actual constitutional arrangements. We are to take stock that the Framers' “conception of rights embraced the liberty of action, the ownership of private property, and the freedom from arbitrary arrest and prosecution,” Epstein writes. “A right to housing, health care, or a decent income—or indeed any positive entitlement against government—was not on their list, or even a distant image on their intellectual horizon” (p. 4).

The Burger Court and the Conflict over the Rational Basis Test: The Untold Story of Massachusetts Bd. of Retirement v. Murgia

The Burger Court and the Conflict over the Rational Basis Test: The Untold Story of Massachusetts Bd. of Retirement v. Murgia EARL M. MALTZ Few commentators would rank Massa­ chusetts Bd. ofRetirement v. Murgia' high in terms ofdoctrinal significance. In rejecting an equal protection challenge to a Massachusetts statute that required police officers to retire at age fifty, the Court made no effort to refine the parameters of rational basis analysis. Instead, a briefper curiam opinion simply noted that the rational basis test was “a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoid­ able one” and that “perfection in making the necessary classifications is neither possible nor necessary.”2 In fact, however, the internal delibera­ tions of the Court in Murgia played a central role in the evolution of modem rational basis jurisprudence. During those deliberations, Justices William J. Brennan, Jr., and Lewis F. Powell, Jr., made a concerted effort to unite a majority of the Justices behind an opinion that would have committed the Court to a version of the rational basis test that was significantly less deferential than the ap­ proach that had been followed by the Warren Court. When this effort failed, it became clear that the Justices were irrevocably divided, and that no single, definitive formulation could command majority support. Thus, the mem­ bers of the Court simply agreed to disagree, and the core issue remained unresolved for the remainder of Burger’s tenure. THE RATIONAL BASIS TEST IN THE EARLY 1970s The early 1970s was a period of great ferment in the development of equal protec­ tion doctrine. At the time that Warren Burger succeeded Earl Warren as Chief Justice in MASSACHUSETTS Bd. OF RETIREMENT v. MURGIA AND RATIONAL BASIS 265 1969, the traditional structure of two-tiered analysis appeared to be firmly entrenched in the Court’s constitutional jurisprudence. Un­ der this approach, legally established distinc­ tions were divided into two categories. Ifsuch a distinction was based on one of a small group of suspect classifications or implicated one ofa limited numberoffundamental rights, then the distinction was subjected to “strict scrutiny” and would only survive a constitu­ tional attack if the government could demon­ strate that the distinction was necessary to serve a compelling governmental interest. In practice, this standard was so stringent that this high level of scrutiny was famously described by one commentator as “strict in theory but fatal in fact.”3 By contrast, the constitutionality of all other classifications was measured only by a rational basis test that was as deferential as strict scrutiny was harsh. Thus, for example, in his opinion for the Court in McGowan v. Maryland,4 Chief Justice Warren relied on the 1920 decision in Lindsley v. Natural Carbonic Gas Co. and a variety ofother cases in declaring that, under the rational basis test, “a statutory discrimina­ tion will not be set aside if any state of facts reasonably may be conceived to justify it.”6 Although a number of late Warren Court decisions might have been taken to suggest that a majority ofthe Justices were prepared to designate additional classifications as “sus­ pect” and also to expand the set ofrights that would be deemed fundamental, the Court remained firmly committed to deference in all other equal protection cases. The equal protection decisions of the early Burger era were far less consistent in this regard. In some high-profile cases, the Court appeared to take the same approach to rational basis analysis that had animated McGowan and its progeny. Thus, for example, in Dandridge v. Williams (1970), the majority opinion explicitly adopted the McGowan standard in upholding the constitutionality of a Maryland statute that limited the amount ofbenefits that could be paid to families under the Aid to Families with Dependent Children Program.7 But in a variety of other cases, including challenges to statutes that discrimi­ nated against women and illegitimate children and laws that restricted access to contra­ ceptives and eligibility for welfare benefits, a majority of the Justices concluded that statutory classifications did not satisfy the strictures of rational basis analysis. The 1971 decision in Reed v. Reed...

What Brown Teaches Us About the Rehnquist Court's Federalism Revival

by Neal Devins, College of William and Mary Linking the Warren Court's school desegregation decisions to more recent Rehnquist Court actions limiting congressional power helps us see clearly how social and political forces shape Supreme Court behavior. This article argues, contrary to common impression, that interest group litigation strategy was relatively unimportant to both the Warren Court's decision in Brown v. Board of Education of Topeka, Kansas (1954) and to the Rehnquist Court's decision to revitalize federalism in United States v. Lopez (1995). Social and political forces are crucial factors in both Brown and in the initiation of a federalism revival. Moreover, majoritarian pressures also influenced the Warren Court's avoidance of school desegregation after Brown and the Rehnquist Court's continued enhancement of state power at federal expense.

'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.

How the Supreme Court Delivers Fire and Ice to State Criminal Justice

The Warren Court left for us an irresistible case study in legal change, particularly for the criminal justice field. In this essay, I begin with this unsurprising proposition: the Warren Court introduced more changes into the criminal justice system than its predecessors. Then the essay takes an institutional turn, looking more at the makers of criminal justice than at the end product. Who carried out the changes that the Warren Court began? How have other legal institutions, particularly state appellate courts and legislatures, responded to the environment of massive change that the Supreme Court created? The question looks past the merits of any particular case that created flux. Instead, I ask more generally about an atmosphere where major change became the norm. In the generations that followed the Warren Court era, state institutions embraced change. The Supreme Court's habit of constant tinkering with the machinery of criminal justice spread to the state level. This is one of the major institutional legacies of the Warren Court in criminal justice. The Warren Court was fire: turning a solid situation into a fluid one, creating movement, causing chemical reactions. Since 1969, other institutions have changed their habits to deal with this more fluid world of criminal justice. The presence of these lively institutions at the state level is an ironic legacy for the Warren Court. The Warren Court is known as an enemy of federalism. But the long-term effects of Warren Court decisions in criminal justice left us with an unexpectedly vibrant federal system. State actors turned into reality many parts of the Warren Court's vision that the Court itself only defined in the abstract. The Rehnquist Court, on the other hand, has become ice. State courts and legislatures have discovered their authority to interpret state constitutions to place their own brand of restrictions on government actors. In response to these innovations in state courts and legislatures, the Rehnquist Court's most famous and emblematic decisions today have the effect of ice. They slow down and freeze into place once ran more freely. Thus, the Rehnquist Court also finds itself in an ironic position when it comes to federalism in criminal justice. Although the Justices often speak warmly of the benefits of variety in state criminal justice systems, sometimes their decisions snuff out variety in the states. This icy effect does not flow from every Rehnquist Court opinion on criminal justice. Sometimes state courts continue to pursue a variety of approaches to a question, even after the Supreme Court speaks and throws its support behind one approach. I close this essay with a few observations about this puzzle: what features of the cases explain why some Rehnquist Court opinions, and not others, function like ice among the state courts?

The Common Law Genius of the Warren Court

The Warren Court's most important decisions -- on school segregation, reapportionment, free speech, and criminal procedure -- are firmly entrenched in the law. But the idea persists, even among those who were sympathetic to the results that Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court made it up, and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a common law court. The decisions in Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and even the reapportionment cases, all can be justified as common law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the common law, such as Cardozo's decision in MacPherson v. Buick Motor Co. In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a common law system -- that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before.

Attacks on the Warren Court by State Officials: A Case Study of Why Court-Curbing Movements Fail

The Warren Court's many decisions expanding federal power provoked a series of state-based Court-curbing proposals that would have reduced the Court's power over the states so radically as to transform the nation into a virtual confederation. In addition to reviving the doctrine of interposition, state officials developed and promoted constitutional amendments that would have excluded Congress from the amendment process and would have created a so-called of the Union composed of the fifty state chief justices, which could have overruled the Supreme Court on issues affecting the states. These amendments made considerable headway and generated much controversy but are now virtually forgotten. In addition to analyzing the origins, progress, and defeat of these and other measures, the article places this neo-confederate movement in the larger context of Court-curing movements through U.S. history, explaining that the efforts failed because the proposals were largely tactical rather than practical; even the state officials who opposed Warren Court decisions had reasons to wish to preserve the Court's power; organizational and institutional obstacles impeded the proposals; elites successfully rallied public opposition to the proposals; the Court's opinions were broadly consistent with public opinion; public respect for the Court remained resilient; and economic conditions discouraged Court-curbing.

The Politics of Constitutional Law

The Review-Essay discusses Lucas Powe's recent book, The Warren Court and American Politics. Examining Powe's analysis of the way in which the Warren Court's decisions influenced politics and of the way in which politics affected the Warren Court's decisions, it raises questions about the evidentiary support for some of Powe's claims. It suggests that Powe may have too narrow a conception of politics, almost confining it to what happens in Washington, D.C., and that a deeper political analysis of the Warren Court would require attention to American progressive liberalism understood as an intellectual and conceptual construct.

The United States Supreme Court and the Fourth Amendment: Evolution from Warren to Post-Warren Perspectives

In the last 25 years, the U.S. Supreme Court's treatment of Fourth Amendment issues has undergone a shift in philosophy that has resulted in a conservative body of search and seizure law that is very different from the more liberal search and seizure law that was developed by the Warren Court in the 1960s. This article examine the most important Fourth Amendment cases decided by die Ware Court and by the post-Warren Court (1975-2000). The article concludes that the post-Warren Court (a)has been very pro-police in its approach to Fourth Amendment issues, (b) ha developed a body of conservative case law in this area while over turning only one of the controversial Warren Court decisions, (c) has often made only minor changes to Fourth Amendment jurisprudence that have nevertheless conveyed a message that constitutional restraints on the police have been relaxed, and (d) has been consistent in its conservative approach to Fourth Amendment issues.

The Warren Court: A Retrospective

A judge-made revolution? This seeming oxymoron is exactly what the Supreme Court under Chief Justice Earl Warren achieved. This book is the first retrospective on the Warren Court-a detailed analysis of the Court's accomplishments by well-known judges, professors, lawyers, and popular writers such as Anthony Lewis, David Halberstam, and David J. Garrow. The book is divided into three parts: Part One looks at the Warren Court's decisions in different fields (equal protection, freedom of speech, press, criminal law, etc.); Part Two, The Justices, is an intimate look at the principal protagonists in the Court's operation; and Part Three, A Broader Perspective, looks at the Court from a historical perspective, its impact on the legal profession and jurisprudence, its international impact, and its legacy, as well as a rare personal reminiscence by Justice William J. Brennan. The papers are both readable and informative, and they provide an invaluable compendium for anyone interested in the Court that did so much to change America.

Measuring Change on the Supreme Court: Examining Alternative Models

Constitutional interpretation is clearly a dynamic process. Understanding the Warren Court's decisions may not be sufficient in trying to explain the Burger Court's. Previous quantitative attempts to examine how judges or courts have changed, however, have one crucial shortcoming: they fail to control for the nature of the cases being decided. By employing a fact model of search and seizure decision making, Warren and Burger Court cases were analyzed to determine the dynamics of the Burger Court's conservatism. Using probit analysis to test various predisposition and variable change models, it was determined that the model which assumed that each Nixon/Ford appointment added similarly to the Burger Court's conservatism worked best. Furthermore, it was concluded that the change seemed to be in the Court's predisposition to find searches reasonable, rather than in its treatment of particular facts.

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.