Our courts were entrusted with the responsibility of judicial review, in large part, to protect individuals and minorities in their fundamental rights against abridgement by both government and majorities. (1) When we think about judicial review, we tend to envision the Supreme Court as a "countermajoritarian hero," (2) protector of minorities from tyrannical majority rule. The Supreme Court itself has long promoted this image, most famously in a 1938 footnote (3) but elsewhere as well, touting courts as "havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement." (4) It is hardly surprising, then, that as today's top constitutional scholars debate the merits of judicial review, (5) its defenders have returned to the notion that the Court's involvement is necessary to protect minority rights. (6) For some, like myself, the Supreme Court's role as countermajoritarian hero is theoretically appealing, but a nagging question remains--how much does the Court actually play it?
If ever a Court played the heroic, countermajoritarian role we romantically ascribe to judicial review, it was the Warren Court. (7) After all, it was the Warren Court that Alexander Bickel was referring to when he coined the term "countermajoritarian difficulty," (8) and it was the Warren Court that gave us Brown v. Board of Education. (9) Earl Warren himself once declared, "'Everything that I ever did in my life that was worthwhile I caught hell for,'" (10) and the same was generally true for his Court. Accused of protecting blacks, communists, criminals, atheists, pornographers, and other perceived threats to white, middle-class America, the Warren Court was quite possibly the most vilified Supreme Court in United States history.
Yet even among the Warren Court's more controversial decisions, few rulings are thought to epitomize the heroic, countermajoritarian ideal better than those involving criminal procedure. By conventional wisdom, the Warren Court's criminal procedure rulings were "plainly, even aggressively countermajoritarian" (11)--the one doctrinal area where the Court knew it lacked public support but took a stand any way. (12) Indeed, even constitutional historians who generally deny the Supreme Court's capacity for countermajoritarian decision making cite the Warren Court's criminal procedure decisions as exceptions to the rule, (13) and for good reason. Together, these cases produced what is widely known as the "criminal procedure revolution," so vast were the protections afforded to unpopular and politically powerless criminal defendants. (14) Like any revolution, the one to protect criminal defendants did not go unnoticed. Its most aggressive decisions drew criticism from coast-to-coast, faired poorly in major public opinion polls, triggered contrary legislation, and even inspired a backlash "law and order" campaign that helped send Richard Nixon to the White House in 1968. (15) It is therefore entirely understandable why scholars have viewed the criminal procedure revolution as the quintessential example of the Supreme Court playing a heroic, countermajoritarian role.
For all the credit the revolution has received, however, no one yet has paused to consider whether the Warren Court's criminal procedure decisions were truly the bastion of countermajoritarian decision making they have been made out to be. (16) In fact, scholarship considering these decisions in their relevant social and political context is, as one author has noted, "virtually nonexistent." (17) With last fall marking the fiftieth anniversary of Earl Warren's appointment as Chief Justice, (18) enough time has passed to place the criminal procedure revolution in proper historical perspective and rethink the Court's role there as countermajoritarian hero. In the discussion that follows, I aim to do that by examining five of the revolution's most celebrated decisions: Mapp v. Ohio, (19) Gideon v. Wainwright, (20) Miranda v. Arizona, (21) Katz v. United States, (22) and Terry v. Ohio. (23) In none of these cases, I argue, did the Supreme Court act in a manner truly deserving of its countermajoritarian image. To be clear, I do not deny that these decisions were historically significant, salient events; nor do I deny that they were doctrinally revolutionary (though two fall short of even that mark. (24) My point is simply that upon close inspection, the landmark cases of the criminal procedure revolution say more about the Supreme Court's lack of inclination for countermajoritarian decision making than the contrary--and that, in turn, has profound implications for the heroic, countermajoritarian function we tend to ascribe to judicial review.
Before proceeding, the scope of this Article warrants a few further points of clarification. First, I do not purport to provide a comprehensive analysis of the entire criminal procedure revolution. The Warren Court decided hundreds of criminal procedure cases, several dozen of which could be characterized as doctrinally significant, revolutionary decisions. (25) I cannot possibly discuss all of these within the confines of a law review article, and thus my more modest aim: a discussion of the five decisions we most often think about when we think about the revolution, the decisions that made the revolution famous and helped create the Court's countermajoritarian image there. Whether these decisions fairly represent the revolution as a whole is a topic I leave for another day.
Second, even if (as I believe) the Warren Court's criminal procedure decisions were less countermajoritarian than we tend to think, I do not deny that, at times, they at least showcased the Court playing countermajoritarian hero at the local level. (26) Of course, whenever a locality is out of step with an emerging or established national consensus and the Supreme Court validates that consensus, its decision will be countermajoritarian in a way--but that kind of countermajoritarian decision making can occur even without judicial review. The 1964 Civil Rights Act, (27) which was immensely unpopular in the South, amply demonstrates that Congress can play local countermajoritarian hero as well as the Court, at least when the nation's collective will is behind it. Thus, to the extent we need the Supreme Court's heroism, we need it to protect against an oppressive national majority, not a local one, and it is therefore the national sociopolitical context that is my focus.
Next, my claim that the Supreme Court lacks the inclination to make countermajoritarian decisions is not a claim that it watches election returns (or any other measure of public opinion) and then deliberately renders decisions that will enjoy popular support. Concededly, the Court sometimes bows to public or political pressure, as it did in 1937's "switch in time that saved the Nine," (28) and the Warren Court was not immune to this phenomenon. (29) But by and large, the Justices of the Warren Court saw their ability to make unpopular decisions when necessary as the judiciary's primary contribution to the political system; (30) reading the election returns was the last thing they thought they were supposed to do, and the one thing they were rarely accused of doing. (31) This is not to suggest that the Warren Court tried to be countermajoritarian any more than it tried not to be. For the most part, I believe the Court made decisions based on what it thought the Constitution said, or at least meant to say, or at the very least should have said. In short, my claim that the Supreme Court lacks the inclination to make countermajoritarian decisions has less to do with any conscious considerations in the deliberative process and more to do with its natural tendency toward adopting majoritarian positions.
Finally, my claim that the Supreme Court is naturally inclined toward majoritarian positions has nothing to do with the political process in which the Justices are selected. Admittedly, the fact that the executive and legislative branches determine the Court's membership helps to ensure that the Justices' views somewhat resemble those of the electoral majority. Presidents nominate, and Senates confirm, individuals who generally think like them and their constituencies. (32) But this "mirroring process" (33) is short-term; Supreme Court Justices have a political life expectancy much longer than those who put them on the bench and thus their views could still differ from the prevailing ideology of any given moment. Moreover, the mirroring process is itself imperfect, and no appointment better illustrates the point than that of Chief Justice Warren--"'the biggest damn fool mistake'" President Eisenhower claimed he ever made. (34) Thus, although the process by which Justices are selected may contribute to their majoritarian leanings, it need not do so, and in any event, it is not the impediment to countermajoritarian decision making that is my focus.
My focus is on the Supreme Court's tendency to adopt majoritarian positions just because of the sociopolitical context in which it operates. The Court is a part of contemporary society, and so we can (and should) expect its decision making to be naturally influenced by contemporary societal norms. Indeed, it would be naive to think that the Court could remain unaffected by the dominant normative assumptions of its time, even if it wanted. (35) We should therefore not be surprised to see Supreme Court Justices take positions coinciding with those of the general public; the same historical events that shape our opinions also shape theirs, and the same social and political currents that move the rest of the country will undoubtedly move them as well. Judges are, after all, people too. And when we forget that fact--when we ignore the indelible historical context in which the Supreme Court operates--we get a distorted image of...