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 are sympathetic to the results that the 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, (1) Gideon v. Wainwright, (2) Miranda v. Arizona, (3) and even in 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. (4)
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.
TABLE OF CONTENTS I. THE COMMON LAW APPROACH A. Common Law Innovation in Action: MacPherson v. Buick Motor Co B. The Premises of the Common Law II. THE WARREN COURT A. Brown v. Board of Education 1. What Justifies Brown? 2. Brown and the Common Law Approach B. Gideon v. Wainwright C. Miranda v. Arizona D. The Reapportionment Cases CONCLUSION It is hard to overstate the significance of the Warren Court to American legal culture. The Warren Court's decisions--most notably, but not exclusively, Brown v. Board of Education, (5) which declared public school segregation unconstitutional--changed the way people thought about courts in general and the Supreme Court in particular. In the first half of the twentieth century, courts were, if anything, perceived as hostile to efforts to bring about equality and social justice; (6) after the Warren Court, the courts came to be seen by many as the natural place for people to turn to achieve these objectives. (7) The influence of the Warren Court has, moreover, spread beyond the United States. The image of courts as the institution with a special responsibility for the disadvantaged has taken root elsewhere in the world, and the paradigm is the Warren Court. (8)
Despite this record of success, though, the notion still lingers that the Warren Court was essentially lawless. Morally visionary, yes, at least on racial segregation; (9) politically astute, perhaps, in sensing the direction in which the nation was moving at the time; (10) but utterly deficient as a matter of legal craft. This view is held across the spectrum, even by people who are broadly in agreement with the Warren Court's objectives. Mainstream legal scholars during the Warren Court years--including many who were politically inclined to approve of the outcomes of the Warren Court decisions--relentlessly attacked the Warren Court in these terms. Alexander Bickel, probably the most widely respected constitutional scholar of his time, accused "the Supreme Court headed ... by Earl Warren" of having engaged in an "assault upon the legal order." (11) Philip Kurland's Foreword to the Supreme Court issue of the Harvard Law Review in 1964 was overtly contemptuous of the Justices' performance as lawyers; (12) Kurland later derided Brown v. Board of Education as "the self-licensing of the Court to recreate the equal protection clause in its own image ... the beginning of the expansive neo-natural law syndrome that allows the Justices to act not merely as interpreters of the Constitution, but as its creators." (13) Herbert Wechsler, in one of the most famous law review articles of all time, made clear his opposition to segregation but nonetheless denounced Brown as unprincipled. (14)
The Warren Court had its defenders, but commentators like Bickel and Kurland set the terms of the debate. (15) The debate did not stop, of course, with Earl Warren's retirement. Today the Warren Court remains almost as much of a presence in public controversies about the Court as it was a generation ago. The "lawlessness" of the Warren Court--the view that the Warren Court Justices just imposed their personal ideological predilections, that they had engaged in an "assault upon the legal order by moral imperatives" (16)--has become a rallying cry for those who applaud the current, much more conservative, Supreme Court, and who think that the current Court should, if anything, go even further in undoing the Warren Court's work. (17) More strikingly, perhaps, even people who generally approve of the outcomes of the Warren Court decisions often agree--sometimes apologetically, sometimes defiantly--that the law took a back seat to the need to end racial segregation and to solve the other problems that the Warren Court addressed. (18) A typical criticism takes the form of equating today's "conservative activist" Court with the "liberal activist" Warren Court: "By ignoring constitutional text [and] misrepresenting constitutional history ... the conservative justices [of today's Court] are guilty of precisely the kind of judicial activism that they rightly criticized on the Warren Court." (19)
This widespread perception that the Warren Court was lawlessly activist is wrong. But the perception is too widely held, by people with varying political views, to be dismissed as simple error. This view of the Warren Court reveals something important, not just about the critics and the Warren Court but about the nature of American constitutional law.
The Warren Court did things, in the name of the Constitution, that the text of the Constitution does not compel and that conflict with the understandings of those who drafted and ratified the Constitution. To that extent, the critics are right. In fact, the Justices of the Warren Court--unlike many others, before and since--often made no claim that their decisions rested on the original understandings of the Constitution or that those decisions were dictated by the text. Anyone who believes that the text of the Constitution and the original understandings simply are the law will conclude--quite naturally, and whatever their political inclinations--that the Warren Court was almost brazenly lawless, "ignoring constitutional text [and] misrepresenting constitutional history." (20)
In fact, though, the Warren Court was lawyerly in a deep and important sense. What the Warren Court understood and the critics do not is that the text and the original understandings are not the only sources of law, or even the most important sources of law, including constitutional law. In its major constitutional initiatives, the Warren Court was, in a profound way, a common law court. That might seem incongruous, because the one thing most people agree on is that the Warren Court was innovative, and the common law approach, rooted in precedent, is usually thought of as conservative and tradition-bound. But while the Warren Court did break new ground in important ways, its major decisions were not as severely cut off from tradition and precedent as one might think. And the common law, for its part, is not as hidebound as one might think. Many of the great common law judges--from seventeenth and eighteenth-century English judges like Sir Edward Coke and Lord Mansfield to twentieth-century American judges like Benjamin Cardozo and Roger Traynor--are famous for their innovations. (21) The Warren Court belongs to that common law tradition.
The mistake of the critics who think the Warren Court was lawless is that they look for constitutional law in the wrong place: they think the Constitution is the text, and perhaps the history, and little more. If you look only to those sources of law, you will not find justification for what the Warren Court did. But if you recognize that American constitutional law is more than that--that it is, in large measure, a common law system, in which precedent plays a central role--then the Warren Court is no longer lawless. It did not simply make things up, or just decide cases in accordance with its political predilections. The Justices of the Warren Court were not just enlightened (or not) judicial activists who had a good sense (or not) of how the winds of history were blowing. They were enlightened, in my view, and they were in a sense activists, and they were in many ways on the right side of history. But they were also in their constitutional decisions squarely in the tradition of English and American common law judges.
I will try to defend this claim by considering, principally, the Warren Court initiatives that aroused the greatest contemporary controversy and the most vehement charges of lawlessness: the famous school desegregation decision, Brown v. Board of Education; (22) the reform of criminal procedure, as typified by the two most celebrated criminal procedure decisions--Miranda v. Arizona, (23) which required the police to warn suspects who were in custody before questioning them, and Gideon v. Wainwright, (24) which required that counsel be made available to all defendants in felony cases; and the reapportionment decisions, which revolutionized the way state legislatures were elected. (25) None of these cases can be easily squared with the original understandings, and none is dictated by the text of the Constitution. But each of them can be justified as a faithful application of the methods of the common law. (26)
I will begin, in Part I, by describing the common law approach. That approach has...