Note: the Warren Court

The Warren Court decided a number of cases requiring states to obey the guarantees of the Bill of Rights. It is useful here to look at the Court in the broader context of the overall pattern of its decisions. Constitutional law, like all law, is a product of the eras in which the Court functions. Recent eras include the New Deal Court (appointed by President Franklin Roosevelt), the Warren Court, the Burger Court (transformed by President Richard Nixon’s appointments), the Rehnquist Court — in which seven Justices were appointed by Republican Presidents — and now the Roberts Court.

In a brief account, it is possible to give only a very general and incomplete sketch of the activities of the Warren Court. For a recent book on the subject, see Lucas A. Powe, Jr., The Warren Court and American Politics (2000). For a shorter treatment, see the entry on the Warren Court in the Encyclopedia of the American Constitution (2000), and the biography of Earl Warren in the Oxford Companion to the Supreme Court (1997).

Two members of the Warren Court had been appointed by Franklin Roosevelt and served even after Earl Warren retired — Hugo Black (1937) and William O. Douglas (1939). Earl Warren (1953), John Marshall Harlan (1955), William Brennan (1956), and Potter Stewart (1958) were appointed by President Eisenhower. President Kennedy appointed Arthur Goldberg (1962) and Byron White (1962). President Johnson appointed Abe Fortas (1965), who replaced Arthur Goldberg, and Thurgood Marshall (1967). In contrast to the Rehnquist Court, several of the Justices on the Warren Court had substantial political experience. Warren had been a district attorney and Attorney General and Governor of California. Hugo Black had served in the United States Senate.

As you have seen, the Warren Court substantially increased the number of Bill of Rights liberties that were applied to the states. In addition, the Court held these guarantees had the same effect whether applied against the federal government or the states. For example, evidence seized in violation of the 4th Amendment had long been excluded in federal trials. As part of its practice of applying federal precedent to set the meaning of incorporated rights, the Warren Court applied the federal exclusionary rule to the states in Mapp v. Ohio (1961). These and other decisions dealing with habeas corpus meant the Court could review many criminal law convictions coming from the South in the turbulent civil rights era of the 1960s, the nation’s second Reconstruction. Incorporation of the Bill of Rights into the 14th Amendment was an issue in the first Reconstruction as well, though in that case the Court rejected incorporation.

The Warren Court made other far-reaching decisions as well. Its decisions reflected a concern with greater equity and social justice for groups that had often been left out. For example, the Court expanded access of the poor to more nearly equal criminal justice and it protected political participation uninhibited by the poll tax. It attempted to dismantle the legal racial caste system, which had plagued blacks in much of the country. It embraced a generous interpretation of many individual rights set out in the Bill of Rights, such as freedom of speech. Finally, its decisions supported a broader democracy characterized by greater equality in the right to vote.

In 1954, the Court ruled that public school segregation violated the Equal Protection Clause. However, the Court next decided that its ruling must be implemented with “all deliberate speed,” and the pace of actual school desegregation in the South was slow. The Court soon applied its decision to all aspects of state mandated segregation. In Loving v. Virginia (1967), it held a ban on racial intermarriage violated equal protection.

In Torcaso v. Watkins (1961), the Court struck down a Maryland constitutional provision that required all public officers to affirm a belief in God. The Court noted that Buddhism, Taoism, Ethical Culture and Secular Humanism were religions that did not teach “what would generally be considered a belief in the existence of God.” It held the Maryland provision violated the Establishment Clause.

The Court’s most controversial religion decision banned state mandated school prayer. In Engel v. Vitale (1962), the Court, speaking through Justice Black, held that the Establishment Clause meant that in the United States “it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.” Religion was instead a matter for “the people themselves and those they choose to look to for religious guidance.”

While many Jewish and Protestant denominations praised the Engel decision, many Southern Protestant and Catholic leaders were harshly critical. The Reverend Billy Graham was “shocked.” The Jesuit weekly America said the decision was “asinine” and “stupid.” There was hostile reaction in Congress as well. Congressman Mendel Rivers of South Carolina denounced the Court for giving “aid and comfort to Moscow” with its “malicious, atheistic decision,” and Congressman George Andrews of Alabama said the Court had “put Negroes in the school and now they’ve driven God out.”

The Court decided 1st Amendment cases that struck some commentators as yet another threat to morality. In Kingsley’s Pictures v. Regents (1959), a New York statute required censors to ban “immoral” films, as well as those that met the constitutional definition of obscenity. The Court struck down New York’s decision censoring a film version of the D. H. Lawrence novel, Lady Chatterley’s Lover. The censors found the film immoral because it suggested that adultery could, at least in some circumstances, be acceptable and desirable. The Court held that a motion picture could not be suppressed because it advocated an idea. “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects.” 1st Amendment protection was not “confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax.”

In Roth v. United States (1957), the Court had held that obscenity was not protected by the 1st Amendment guarantee. Still, the Court noted that sex and obscenity were not synonymous, and nine years later it dramatically limited the scope of the constitutional definition of obscenity. In Memoirs v. Massachusetts (1966), the Court found a sexually explicit 18th century English novel that depicted the heroine’s adventures in a whorehouse to be constitutionally protected. A plurality found the book not obscene because it was not entirely worthless — not “utterly without redeeming social value.” Justices Black and Douglas concurred, holding that obscenity laws violated the 1st Amendment’s prohibition on laws abridging freedom of speech.

The Warren Court issued other decisions that were broadly protective of freedom of speech. In New York Times v. Sullivan (1964), it considered an Alabama libel verdict against the New York Times and a number of ministers who had published an advertisement protesting a jailing of Dr. Martin Luther King Jr. The ad was harshly critical of local law enforcement officials, and it contained factual errors. An Alabama jury found the ad had libeled the Montgomery police commissioner. In finding the ad protected by freedom of the press, the Court noted “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” The ad was a “protest on one of the major public issues of our time.” Unless it was intentionally or recklessly false (which the Court independently found it was not) it was constitutionally protected.

Those protected by the Court’s free speech decisions spanned the ideological spectrum. In Brandenburg v. Ohio (1969), the Court considered the case of an Ohio Klansman convicted of advocating violence as a means of political change. Brandenburg had made a racist speech that called for returning blacks to Africa and Jews to Israel. He suggested violence might be necessary if the Congress, President, and Supreme Court continued to oppress the white race. The Court held only speech directed to inciting or producing imminent lawless action and plainly likely to produce such action could be proscribed. In Bond v. Floyd (1966), the Court’s decision involved both free speech and the right of voters to choose their representatives. It held the Georgia state legislature could not exclude an elected state representative because he had endorsed both harsh criticisms of the Vietnam War and expressions of sympathy for young men who refused to serve. New York Times v. Sullivan and Bond v. Floyd were decisions that gave very broad protection to discussion of public affairs as crucial to the democratic process.

The Court’s free expression decisions were not uniformly protective. In United States v. O’Brien (1968), the Court upheld the conviction of a man who burned his draft card to protest the war in Vietnam. In Walker v. Birmingham (1967), it also upheld the conviction of a minister held in contempt for violating a court order that itself violated the 1st Amendment. The Court held the minister should have appealed instead of violating the order. And it upheld the conviction of protestors against segregation for continuing to protest in the jailhouse yard after being ordered to leave.

The Court’s vision of constitutional democracy produced some of its most significant decisions. Baker v. Carr (1962), involved a challenge to apportionment of the Tennessee legislature. If legislators should represent voters, not geographical areas, the Tennessee legislature was grossly mal-apportioned. The Court held the case justiciable. It soon held that the Equal Protection Clause of the 14th Amendment requires state legislatures to craft legislative districts in a manner that provided equal representation.

In January, 1964, the states ratified the 24th Amendment, providing that the right to vote in federal elections could not be abridged based on failure to pay any poll tax or other tax. In 1965, in Harper v. Board of Elections (1966), the Court held the few remaining state poll taxes requirements violated the Equal Protection Clause of the 14th Amendment. The Court characterized the right to vote as fundamental, and it subjected barriers that disadvantaged the poor to substantially heightened scrutiny. It concluded that wealth, “like race, creed, or color” was not “germane” to the ability to vote. Justice Harlan dissented and insisted that the final burial of the poll tax (by then limited to four states) should be left to the political process. Harlan noted correctly the existence of property qualifications early in American history (before the 14th Amendment) and the fact that the framers of the 14th Amendment did not regard it as conferring the right to vote on blacks or anyone else.

In addition to the poll tax case, the Warren Court decided a number of cases that dealt with problems of poverty and access to justice. In federal court since 1938, the Court had required indigents to be provided with counsel. In Gideon v. Wainwright (1963), the Court held that the 6th Amendment right to counsel applied to the states and required them to provide lawyers for indigent defendants at trial.

As early as 1956, in Griffin v. Illinois (1956), the Court had interpreted the Equal Protection Clause to require transcripts to be provided without charge to indigent criminal defendants so they could appeal their cases. In Douglas v. California (1963), the Court extended Griffin’s rationale to include the right to counsel for the first criminal appeal. The evil to be remedied was “discrimination against the indigent. For there can be no equal justice where the kind of appeal a man enjoys ‘depends on the amount of money he has.'” (Recently, Justices Scalia and Thomas have suggested that Griffin should be re-examined and probably overruled.)

Other Warren Court decisions also involved statutes that fell most harshly on the poor. In Levy v. Louisiana (1968), the Court held that children born outside of marriage could not be denied the right to pursue a wrongful death action based on the death of their mother. The discrimination against illegitimate children violated equal protection.

The New Deal Court had been critical of its predecessor’s habit of finding economic liberties in the Due Process Clause. Critics had emphasized the lack of a clear textual basis for the decisions. The Warren Court continued to follow the approach of the New Deal Court and applied low level rational basis review to most business regulations. But in Griswold v. Connecticut (1965), it struck down Connecticut’s law that made it a crime to use or provide birth control devices, even to married couples. But the Court, consistently with its rejection of Lochner v. New York (1905) era substantive due process, did not find the right to use birth control devices simply in the liberty of the Due Process Clause. Instead, it found the right in the penumbras of liberties in the Bill of Rights — including some that had not yet been held to limit the states.

Some of the most controversial decisions of the Warren Court dealt with criminal procedure. In Miranda v. Arizona (1966), for example, the Court ruled that persons accused of crimes must be informed of their right to remain silent and to a lawyer. If they requested a lawyer, the Court said questioning must then cease. As noted above, the exclusionary rule was applied to state prosecutions both in confession and search and seizure cases. In the long run, most scholars believe that the decision, which imposed a rule the FBI had used for years, has not been shown to have seriously hampered law enforcement. But in the short run, as a result of its criminal procedure decisions, some accused of crimes got new trials and some people who were factually guilty were freed. The Court soon made many of its criminal procedure decisions prospective only, but the operative date was the date of the trial, not the date of the police conduct. As a result, it faced headlines reading “confessed murderer freed.” The Court refused to make decisions retroactive unless, like the right to counsel, they bore directly on the accuracy of the fact finding process. It upheld police power to stop and frisk people with less than probable cause and rejected exclusion of blood tests and other physical tests on the claim that they were compelled self-incrimination. Earl Warren, who had been a prosecutor and Attorney General of California, had a more nuanced view of constitutional criminal procedure than some of his critics suggested.

George Wallace was a Segregationist and governor of Alabama who stood in the school house door at the University of Alabama to resist integration of the school by a black student. In 1968, he ran for President, first in Democratic primaries. Wallace did remarkably well among Northern blue collar workers. He then went on to run for President as the candidate of the American Independent party. George Wallace’s standard 1968 campaign speech said: “If you walk out of this hotel tonight and someone knocks you on the head, he’ll be out of jail before you’re out of the hospital, and on Monday morning they will try the policeman instead of the criminal.” After Wallace’s success with the crime issue, Richard Nixon injected it into his campaign. In his 1968 campaign speech, Richard Nixon said, “some of our courts have gone too far in weakening the peace forces against the criminal forces.” Wallace and Nixon enjoyed public support on the crime issue. The Gallup Poll reported that 63% of Americans thought that the Court was too protective of those accused of crime.

In many of its decisions, the Warren Court was not a lone innovator, nor was its movement in the direction of racial equality unique. President Franklin Roosevelt had issued a Fair Employment executive order banning racial discrimination in federal and defense projects. President Harry Truman had integrated the armed forces. The Eisenhower administration had favored legislation to protect the right of blacks to vote. The Kennedy and Johnson Administrations had supported a public accommodations act and a voting rights act.

Major gains in civil rights occurred during the presidency of Lyndon Johnson. Johnson’s leadership secured the passage of the Civil Rights Act of 1964, which outlawed discrimination in public accommodations and employment, and of the Voting Rights Act of 1965, which provided strong protection against racial discrimination in the right to vote. The Act led to a massive increase in blacks voting in the South and largely ended overt racial discrimination in voting. The Court held both acts constitutional. Johnson also initiated a War on Poverty. The Court’s decisions on race and poverty occurred in a larger political context.

The end of the Warren Court was marked by the election of Richard Nixon and the decline in the fortunes of the national Democratic party. Storm clouds had been gathering for some time. Johnson’s escalation of the war in Vietnam had produced a deep split in the Democratic party. With Johnson’s support for strong civil rights enforcement, Southern states had begun to defect to the Republican party. While most of the nation at first supported the Vietnam War, Congress (no doubt reflecting public sentiment) was unwilling to raise taxes to pay for it. Inflation began to undermine a long period of prosperity. Many Americans were distressed by fear of crime and appalled by the counter-culture of the 1960s. Urban rioting increased their concern. Although Johnson acted firmly against urban rioting, it further undermined his administration. As civil rights questions moved from the South to the North and some courts began to order busing to end segregated schools, Northern support of integration eroded.

When Johnson nominated Associate Justice Abe Fortas to replace Chief Justice Earl Warren, the reaction against the Warren Court became quite clear. Fortas faced angry and hostile questions about his judicial philosophy from many members of the Senate Judiciary Committee. Senators particularly questioned his votes in criminal procedure cases and his votes in obscenity cases. One witness provided the committee with an Abe Fortas film festival, studded with scenes from movies Fortas had held not to be obscene. Serious ethical questions contributed to Fortas’ defeat and forced his eventual resignation from the Court. Still, his judicial philosophy was a major issue raised by those who opposed elevating him to Chief Justice.

In 1968, Nixon barely defeated Hubert Humphrey for the presidency. But George Wallace and Richard Nixon together polled 57% of the vote, to Humphrey’s 43%. Humphrey’s showing was particularly dismal in Southern states.

For many in the Nixon administration, the Warren Court was an example of what a Supreme Court should not be. Nixon promised to put people on the Court who would be “strict constructionists” and subsequent Republican presidential candidates (except Gerald Ford) have echoed the pledge.

The reaction against various controversial decisions of the Warren Court and the Burger Court’s abortion decision in Roe v. Wade (1973) (written by one Nixon Justice and joined by two others) has helped to spark recent debate over the proper role of the Court in the American constitutional system. Should the Court’s constitutional decisions be limited to either the original intent of those who framed the Constitution and its amendments or to how the words were originally understood by citizens at the time of ratification? If we use an historical approach, do we follow our current understanding of the broader values they proclaimed or their understanding of the application of those values in their time? If we follow a narrow understanding of either original intent or original meaning as the sole guide, then how can innovative constitutional decisions be justified? Can later constitutional amendments taken together justify a revised understanding that goes beyond the narrow letter of the amendments? For example, consider the expansion of the right to vote to blacks, women, and those eighteen years of age or older; and consider the abolition of the poll tax in federal elections; and state repudiation of property qualifications. Do these changes support the idea of a federal right to vote that may not be abridged or should the right to vote be left where the framers of the original Constitution placed it — in the discretion of each state?

There is no doubt that the Warren Court was quite different from many of its predecessors — at least before the New Deal Court. While some earlier Courts had narrowed or struck down civil rights legislation and legislation against child labor or enforcing limits on hours of work, the Warren Court upheld sweeping civil rights laws and gave no encouragement to those who sought to void simple economic regulation. Its voting rights decisions reflected an implicit view that the Constitution had become more democratic over time and with various Amendments that expanded and protected the right to vote — the 15th, the 19th, and the poll tax Amendment. Its free speech decisions were among the most protective of expression and political dissent that the Court had uttered up to that time. It overruled a number of cases. Plessy v. Ferguson (1896), which upheld state imposed segregation, was only one of many. In contrast to the Rehnquist and Roberts Courts, it virtually never held acts of Congress unconstitutional. In many areas its decisions provided a national minimum standard for civil liberty. G. Edward White, writing in the Encyclopedia of the American Constitution says that the Warren Court was different, but not because its reasoning was more flawed or its exercise of power more presumptuous. Instead, he says, previous activist Courts had benefited entrenched elites, for example slave owners and businesses that sought to avoid government regulation. The Warren Court benefited blacks, the poor, those accused of crimes, those purveying sexually-oriented books and films, urban and suburban voters, and those who objected to government sponsored religious exercises.

The Court was part of an era in American history when many believed government could help to transform the nation into a more just, caring, and humane society and that the Court had an important role in this process. Today, many see this vision as arrogant and misguided. Others hope to see it re-emerge. At any rate, one way to understand the Warren Court is as a high water mark of an era of American history that ran from Franklin Roosevelt’s New Deal to Lyndon Johnson’s Great Society.