Warren Court

Author:G. Edward White

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It was surely the best known Supreme Court in history, and probably the most controversial. Its grand themes?racial equality, REAPPORTIONMENT, the separation of religion and education, DUE PROCESS?became matters of public consciousness. Its leading judges?HUGO L. BLACK, WILLIAM O. DOUGLAS, FELIX FRANKFURTER, JOHN MARSHALL HARLAN, and EARL WARREN?became personages in whom the general public took an interest. When the Warren Court came into being in October 1953, the Supreme Court was the least known and least active of the major branches of government; by the retirement of Chief Justice Warren in June 1969, nearly everyone in American life had been affected by a Warren Court decision, and a great many Americans had firm opinions about the Supreme Court. When Warren was appointed Chief Justice, few commentators took note of the fact that he had had no previous judicial experience and had spent the last twelve years as a state politician. By the time WARREN E. BURGER succeeded Warren as Chief Justice the process of nominating a Justice to the Supreme Court had become an elaborate search for the "experienced," uncontroversial, and predictable nominee, and the Court was to lower its profile again.

The Warren Court years, then, were years in which the Supreme Court of the United States made itself a vital force in American culture. A striking pattern of interchange between the Court and the general public emerged in these years. As public issues, such as CIVIL RIGHTS or legislative malapportionment surfaced, these issues became translated into constitutional law cases. The Court, expanding the conventional ambit of its JURISDICTION, reached out to decide those cases, thereby making an authoritative contribution to the public debate. As the Court continued to reach out, the public came to rely on

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its presence, and the American JUDICIAL SYSTEM came to be perceived as a forum for the resolution of contemporary social problems. The use of the Supreme Court as an institution for redressing grievances ignored by Congress or state legislatures became common with the Warren Court.

The origins of the Warren Court can officially be traced to September 8, 1953, when Chief Justice FRED M. VINSON died of a heart attack. By September 30, President DWIGHT D. EISENHOWER had named Warren, the governor of California who had been a rival candidate for the Republican presidential nomination in 1952, as Vinson's successor. This nominal creation of the Warren Court did not, however, hint at its character. Indeed that character was not immediately apparent. Even the Court's first momentous decision, BROWN V. BOARD OF EDUCATION (1954), announced in May of its first term, was in some respects a holdover from the Vinson Court. Brown had been argued before the Vinson Court, was based in part on Vinson Court precedents chipping away at RACIAL DISCRIMINATION in education, and was decided by a Court whose only new member was its Chief Justice. It was a cautious decision, apparently assuming that DESEGREGATION would be a long and slow process.

But Brown was also the Warren Court's baptism of fire. All the elements that were to mark subsequent major Warren Court decisions were present in Brown. Brown involved a major social problem, racial discrimination, translated into a legal question, the constitutionality of SEPARATE BUT EQUAL public schools. It posed an issue that no other branch of government was anxious to address. It raised questions that had distinctively moral implications: in invalidating racial SEGREGATION the Court was condemning the idea of racial supremacy. And it affected the lives of ordinary citizens, not merely in the South, not merely in public education, for the Court's series of PER CURIAM decisions after Brown revealed that it did not consider racial segregation any more valid in other public facilities than it had in schools. The Warren Court had significantly altered race relations in America.

The context of the Warren Court's first momentous decision was decisive in shaping the Court's character as a branch of government that was not disinclined to resolve difficult social issues, not hesitant to foster social change, not reluctant to involve itself in controversy. By contrast, the legislative and executive branches appeared as equivocators and fainthearts. The Warren Court was deluged with criticism for its decision in Brown, both from persons who resisted having to change habits of prejudice and from scholars who faulted the reasoning of the Court's opinion. This response only seemed to make the Court more resolute.

The deliberations of Brown also served to identify some of the Justices whose presence was to help shape the character of the Warren Court. Earl Warren transformed a closely divided Court, which had postponed a decision on Brown because it was uncertain and fragmented on the case's resolution, into a unanimous voice. That transformation was a testament to Warren's remarkable ability to relate to other people and to convince them of the rightness of his views. In Brown he had argued that those who would support the separate but equal doctrine should recognize that it was based on claims of racial superiority. That argument struck home to at least two Justices, TOM C. CLARK and STANLEY F. REED, who had grown up in the South. When Warren had finished his round of office visits and discussions, he had secured nine votes for his majority opinion and had suppressed the writing of separate concurrences. ROBERT H. JACKSON, a long holdout in Brown who was dubious about the possibility of finding a doctrinal rationale to invalidate the separate but equal principle, joined Warren's opinion and left a hospital bed to appear in court the day the decision was announced.

A silent partner in the Brown decision had been Felix Frankfurter. By the late 1950s Frankfurter's jurisprudence, which stressed a limited role for judges in reviewing the constitutionality of legislative decisions, had rigidified, isolating Frankfurter from many other justices and identifying him as one of the guardians of a theory of judicial self-restraint. Judicial self-restraint in Brown would have supported the separate but equal doctrine, since that doctrine itself signified a judicial reluctance to disturb legislative enactments forcibly separating persons on the basis of race. Frankfurter, however, could not abide the consequences of continued deference to the separate but equal doctrine, but he did not want to expose the lack of "restraint" that his position assumed. He accordingly confided his views on Brown only to Warren and worked toward fashioning a decree?containing the controversial phrase ALL DELIBERATE SPEED as a guideline for implementing desegregation?that would temper the shock of the Brown mandate. At the appropriate moment he joined Warren's opinion.

The partnership of Warren and Frankfurter in the segregation cases contrasted with the usual posture of both Justices on the Warren Court. Warren's approach to judging, with its relative indifference to doctrinal reasoning and to institutional considerations, its emphasis on the morally or ethically appropriate result, and its expansive interpretation of the Court's review powers, was the antithesis of Frankfurter's. For the most part the two men sharply disagreed over the results or the reasoning of major Warren Court decisions, with Frankfurter enlisting a stable of academic supporters in his behalf and Warren seeking to bypass doctrinal or institutional objections to make broad ethical appeals to the public at large.

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The presence of two other significant Warren Court Justices, HUGO BLACK and WILLIAM O. DOUGLAS, was also felt in Brown. Black, a native of Clay County, Alabama, and fleetingly a member of the Ku Klux Klan, had been an opponent of racial discrimination since being elected to the Senate in 1926. He had supported the Vinson Court precedents crippling "separate but equal," for which he had received outspoken criticism in his home state. His position in Brown was well known early on: an uncompromising opposition to discriminatory practices. Such positions were characteristic of Black on the Warren Court. He staked out positions decisively, held them with tenacity, and constantly sought to convert others to his views. His theory of constitutional adjucation, which placed great emphasis on a "literal" but "liberal" construction of BILL OF RIGHTS protections, was a major contribution to Warren Court jurisprudence.

Equally outspoken and tenacious, and even more activist than Black, was William O. Douglas, whose academic experience, which paralleled Frankfurter's, had generated a strikingly different conception of judicial behavior. Douglas did not agonize over issues of institutional deference and doctrinal principle; he took his power to make law as a given and sought to use it to promote values in which he believed. The values were principally those associated with twentieth-century libertarianism and egalitarianism. Douglas spoke out for small business, organized labor, disadvantaged minorities, consumers, the poor, dissidents, and those who valued their privacy and their freedom from governmental restraint. Douglas's role on the Warren Court was that of an ideologue, anxious to secure results and confident that he could find doctrinal justifications. Together, Black and Douglas prodded the Court to vindicate even the most unpopular forms of free expression and minority rights.

While the Warren Court was generally regarded as an activist Court and a liberal Court, it was not exclusively so, and not all its members could be characterized as either activists or liberals. Until his retirement in 1962, at the midway point of Warren's tenure, Frankfurter had vociferously protested against an excessively broad interpretation of the Court's review powers, a position that resulted in his supporting the...

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