What Warren Wrought

In the 15 years he served as chief justice of the United States, Earl Warren presided over a revolution in American law. In 1954, only one year after President Dwight D. Eisenhower tapped him to head the court, Warren wrote the unanimous opinion in Brown vs. Board of Education repudiating the long-standing, bigotry-sustaining doctrine of “separate but equal” and declaring segregated schools unconstitutional. Before Warren’s resignation in 1969, the court over which he presided changed the legal landscape in ways too numerous to name, but a few examples include establishing the principle of one person, one vote, prohibiting prayer in public schools, expanding the right to privacy and recognizing a litany of new rights for criminal defendants, from the right to counsel for indigents to the ubiquitous Miranda warnings.

Despite the passage of more than three decades, the decisions of the Warren court remain at the heart of the often bitter legal debate within the current Supreme Court and society at large. When abortion rights advocates and foes clash in protests on the court’s front steps, when school principals defiantly post the Ten Commandments on classroom walls, when students hold sit-ins to save affirmative action, when the American Bar Assn. calls for a moratorium on executions or when parents’ groups protest pornography on the Internet, they are choosing sides in a war over the changes wrought by the Warren court. Within the court, the most fiercely contested cases--such as this term’s challenges to the Miranda decision and the ban on prayer in public schools--are referendums on precedents from the Warren era.

In “The Warren Court and American Politics,” Lucas A. Powe Jr., a professor of law and government at the University of Texas, labors to bring dispassion to subject matter that stirs passion at every turn. He prefaces his book with the announcement that his “concern is not whether these [Warren era] changes were good or bad.” Instead, he sets out to “eschew the law professor’s traditional court-centered focus” and place the actions of the Warren court within the larger context of American politics.

This is a curious agenda. By Powe’s assessment, the Warren court engaged in a profound moral crusade to make the American legal system substantially more decent and “fair.” Whatever one thinks of that endeavor--whether one wants to nominate Edward Lazarus is the author of “Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.” He is the legal correspondent for Talk magazine. Warren for sainthood or condemn him as a misguided usurper of power from the elected branches of government--it strains credulity to think that anyone really approaches the subject of the Warren court without a strong “concern” over whether the changes it wrought were for better or worse.

It is hardly surprising, therefore, that despite his disclaimer, Powe’s narrative is in fact littered with judgments about whether the major decisions of the Warren court were correctly decided, persuasively reasoned or effectively implemented. Take Brown, for example. As most everyone else does, Powe wholeheartedly endorses the decision’s ultimate goal of desegregation. At the same time, however, he goes to some lengths to suggest that Warren’s opinion was a jurisprudential disaster that accomplished far less than popularly believed. Borrowing from a variety of legal scholars, Powe delivers the standard three-point revisionist critique favored by political centrists and conservatives. First, he writes, Warren was downright “stupid” in grounding his Brown opinion in flawed pseudo-social scientific studies indicating that segregation created feelings of inferiority in black schoolchildren. Instead, Powe tells us, Warren should have premised Brown explicitly on its unarticulated view that segregation created second-class citizenship for blacks and that such subordinate status was incompatible with the Constitution’s mandate of equality. Second, Powe criticizes the court’s decision to implement desegregation with “all deliberate speed”--a malleable time frame that gave succor to Southern obstructionists. Third, Powe emphasizes that Brown achieved little actual desegregation in public schools and that real progress in dismantling Jim Crow came much more from Congress’ passage of new civil rights laws in the mid-’60s than from Warren court decisions.

There is a kernel of truth in each of these criticisms. Warren’s opinion does rely (in Footnote 11) on several methodologically challenged psychological studies and, in so doing, gave the massive resisters of the South a significant weapon with which to assault the legitimacy of the court’s actions. The “all deliberate speed” formula certainly opened the door to Southern delaying tactics and deprived black schoolchildren of the immediate relief that a strict application of legal principle might have afforded them. And despite the best intentions of the justices, Southern schoolhouses remained de facto segregated until well into the 1960s.

But for a legal academic hoping to avoid the pitfalls of his profession, Powe, in his critique of Brown and in his commentary about other major lines of cases, is decidedly employing 20-20 hindsight that emanates from a narrow and legalistic perspective rather than the broad historical one to which he allegedly aspires. Indeed, Powe’s analysis calls to mind the comments of Thurgood Marshall, who argued Brown before the court. “You know,” Marshall told a friend in 1955, “some people want most of the hog, other people insist on having the whole hog, and then there are some people who want the hog, the hair and the rice on the hair. What the hell! The more I think about it, I think it’s a damned good decision.”

In Brown, the Supreme Court took the largest single step in one of the most difficult processes any government has ever undertaken: the complete integration on equal terms of a racially distinct former slave class. To achieve unanimity for the court’s unprecedented step toward this end, Warren self-consciously sacrificed doctrinal sophistication to ensure the support of Stanley Reed, a justice from Kentucky who initially balked at the majority view. In a well-intentioned but futile attempt to dampen hostile reaction (and thereby improve the prospects for Southern compliance), Warren accepted Felix Frankfurter’s suggestion that forced implementation be delayed. And partly because of this delay (but not only because of it to be sure), progress toward actual integration on a significant scale did not flow magically from the court’s mandate but had to await presidential and congressional action--and remains incomplete.

So what? Brown has stood the test of time better than any other controversial decision in court history. The decision’s central idea--the notion that separate is “inherently unequal”--profoundly disputed in its day, is now such sacred gospel that every court nominee, from Antonin Scalia to Ruth Bader Ginsburg, has sworn allegiance to it.

Indeed, Brown is so sacrosanct that William Rehnquist, in his confirmation hearing to be chief justice, had to deny (several scholars believe falsely) that he ever opposed Brown in order to secure confirmation. In light of such uniform acceptance, Powe’s admittedly strong doctrinal criticisms shrink to marginal niggles.

As a practical matter, moreover, had it not been for Brown, would the executive and congressional actions that Powe bally- hoos (such as the Civil Rights Act of 1964) have occurred as they did, when they did? Would the civil rights movement have emerged as quickly and as powerfully? Racist Southerners understood exactly how long a nail Brown was in the coffin of Jim Crow and knew it guaranteed that other nails would follow. That’s why the sign they put up on Red Mountain in Birmingham, Ala., didn’t call for the head of John F. Kennedy or Bobby Kennedy or Lyndon B. Johnson; it said, “Impeach Earl Warren.”

Simply put, Powe’s struggle to assess the Warren court “dispassionately” too often leads him to neglect the very historical and political context he claims to be providing in favor of the kind of doctrinal point-scoring that characterizes the sterile debate of academic legal journals.

Still, Powe’s work is not without significant contributions, including some with particular relevance for evaluating the current court. Much to his credit, Powe recognizes (as few scholars have) that a single theme underlay many seemingly disparate aspects of the Warren-era revolution: a deep distrust of the people and governments of the old Confederacy. Warren came to the court at a singular time. In the bloom of the nation’s post-World War II prosperity, much of the country was inching toward a new idealism about the possibility of racial equality. In the legal world, the NAACP had spent 20 years chipping away at the legal underpinnings of segregation. And at the court, all that separated the justices from a dramatic break with the court’s past acceptance of segregationist doctrines was the leadership of a forward-thinking and dynamic chief.

Under Warren’s guidance, the court took aim directly at Southern practices and institutions. Obviously, the court’s race discrimination decisions as well as those upholding Congress’ major civil rights initiatives fit this mold. But so less obviously, did the court’s vitally important reapportionment decisions (which first opened the door for the election of black representatives) as well as the court’s newly minted protections for criminal defendants (which arose from a special concern with how Southern police, prosecutors and judges treated their black constituents). In these areas and many others, the Warren court exalted federal authority over that of states and repudiated the doctrine of states’ rights that historically had undergirded the institution of slavery and was the mainstay of massive resistance to Brown and other aspects of desegregation.

At today’s court, the doctrine of states’ rights (or “federalism,” as it is quaintly called) is back with a vengeance, resurrected by the narrow five-member majority that Rehnquist commands. Under that banner, the court has curtailed the power of the federal Congress to expand civil rights through new legislation and has insulated states from lawsuits based on current civil rights laws. How one feels about this development is necessarily a reflection of one’s devotion to the Warren court and the degree to which one’s distrust of authority is lodged at the local level (as it was in Warren’s day) or at the doorstep of the federal government (as now so often seems the case).

Which view will prevail on the current court is still very much up for grabs. Powe traces how the outcome of several very important cases changed radically when one justice resigned and his replacement changed the court’s balance on a particular issue. More generally, as Powe correctly notes, the heyday of the Warren court’s expansion of civil liberties did not begin until 1962, when the liberal Arthur Goldberg replaced the conservative icon Frankfurter and tipped the balance of the court decisively to the left.

With November fast approaching, this last point takes on special significance. Had Nixon, not Kennedy, been filling Frankfurter’s seat, perhaps there would have been no Warren revolution at all. Al Gore and George W. Bush have made crystal clear that one of the few uncompromisable differences between them is their respective views of the Warren court and the type of jurists they would nominate to the several court vacancies likely to occur in the next few years. As a consequence, the outcome of the fall election is likely to determine whether 30 years from now we are still debating the merits of the Warren era--or that of a counterrevolution bearing Rehnquist’s name.