American Liberalism and the Warren Court's Legacy

Tony A. Freyer

Mark V. Tushnet. Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991. New York: Oxford University Press, 1997. ix + 246 pp. Bibliography, notes, and index. $29.95.

As the twentieth century ended, the Supreme Court's place within American liberalism became increasingly conflicted. The triumph of Ronald Reagan's Republican conservatism and the sudden cessation of the Cold War eroded the heritage of the New Deal and Great Society. The Supreme Court symbolized the rise, consummation, and decline of this liberal tradition. Franklin D. Roosevelt's success after 1937 in placing upon the Court supporters of his vision represented the New Deal's ascendency; the appointment to the Court during the 1980s and early 1990s of Reagan Republicans signaled that a new conservatism had taken hold. At the historical center of this gradual transformation was the Supreme Court under the leadership of Chief Justice Earl Warren, known to history as the Warren Court. From 1953 to 1969, it brought about the most significant expansion of civil rights and liberties the nation had ever known. Since the late 1960s, the rights revolution became synonymous with a larger, more activist liberal government, feeding growing public dissatisfaction which Reagan conservatism tapped to gain victory. Overcoming the Warren Court's legacy proved to be, however, more difficult than the conservatives had hoped; the new books by Mark V. Tushnet and Morton J. Horwitz reveal much about the origins and character of an ongoing struggle.

Horwitz's small book summarizes well what has become the standard view of the Warren Court's historical significance. When President Dwight D. Eisenhower appointed fellow Republican, California Governor Earl Warren as chief justice of the Supreme Court in 1953, New Deal liberalism, and the Court itself, were at a turning point. Regarding the use of federal authority to preserve the nation's economic welfare, most Democrats and Republicans shared a liberal consensus that big government was necessary to prevent a [End Page 133] repetition of the Great Depression. There was general bipartisan agreement too that a powerful government was essential to maintain the nation's security against communist aggression in the Cold War. By the early 1950s, a Supreme Court dominated by such prominent New Deal Democrats as Hugo L. Black, William O. Douglas, and Felix Frankfurter had transformed constitutional law along lines that sustained the market regulation and national security policies the liberal consensus embodied.

Meanwhile, since the 1930s and 1940s African-Americans and ethno-religious minorities had struggled with some success through the federal judiciary to enter the broader democratic mainstream that liberalism represented. Even so, during the years immediately before Warren joined the Court, the NAACP's Legal Defense Fund (LDF) led by Thurgood Marshall had mounted the most important constitutional claim to equal rights since the Civil War and Reconstruction: the school desegregation litigation known as Brown v. Board of Education. At the same time, McCarthyism jeopardized the limited gains which other minorities had made in asserting their constitutional rights. According to the standard treatment, the Warren Court defined its place in American history by working out progressive settlements to the constitutional rights claims that pressed for resolution when Warren became chief justice.

These progressive constitutional settlements were original but not unprecedented. The resolution of the school desegregation issue in Brown, as Horwitz and other accounts note, established the Warren Court's characteristic themes. The Court's Brown decision invalidated the separate but equal doctrine--which was the constitutional foundation of the South's Jim Crow, racial apartheid system--as a violation of the Fourteenth Amendment's equal protection clause. Horwitz mentions in passing that this truly revolutionary decision was nonetheless proceeded by several noteworthy, yet narrower, desegregation and voting rights victories Marshall and the LDF had won dating back to the 1930s. The modest scope of the earlier decisions turned out to be prophetic. The Court blunted its original Brown I decision of 1954 with a remedial order the next year known as Brown II, which encouraged Southern school boards to comply gradually "with all deliberate speed."

Brown II also fostered among Southern elected officials and violence-prone segregationists a campaign of massive resistance. The intransigence of Southern whites in turn prompted Martin Luther King, Jr. and the civil rights movement to engage in a brilliant strategy employing non-violence and passive resistance. The civil rights movement established common ground with northern whites, whose moral outrage and fears concerning the impact southern defiance had on furthering communist propaganda efforts helped to isolate the South politically. Confronted with dramatic and bloody clashes [End Page 134] between civil rights activists and Southern officials from 1963 to 1965, Congress passed the historic Civil Rights Act of 1964 and the Voting Rights Act of 1965. Within months of the enactment of each law the Warren Court sustained their constitutionality against southern states' rights challenges.

The Warren Court's activist promotion of a more rights conscious liberalism extended beyond race. During the first half of the 1960s the Court broadened the guarantees of the Fourteenth Amendment's equal protection clause to strike down malapportioned state and federal legislative districts. Since at least the 1940s, most of the nation's urban areas had proportionally fewer legislators because electoral districts were drawn to favor rural voters. In Colegrove v. Green (1946) the Court refused to consider the issue, declaring it a political question beyond judicial cognizance. Justice Black, however, dissented. In 1962, a Warren Court majority opinion by Justice William J. Brennan, building upon decisions invalidating racially malapportioned districts, broadened the constitutional reasoning Black's dissent had employed to overturn the political question doctrine. After several further decisions, Chief Justice Warren wrote a majority opinion in Reynolds v. Sims (1964) holding that malapportioned districts violated a principle of "one person, one vote" sanctioned by the equal protection clause.

Horwitz sets out clearly the broad outlines of this story. He explains well how the Court's vindication of minority rights in race cases facilitated genuine majority rule by requiring legislative reapportionment consistent with "one person, one vote." He suggests also that judicial activism in such cases was essential to bring about greater democracy because rural voters and their elected representatives could not realistically be expected to have surrendered power voluntarily. The account is flawed, however, by exaggerating the originality of Brennan's 1962 opinion in Baker v. Carr. Horwitz ignores altogether Black's Colegrove dissent which gave legitimacy to the profound constitutional transformation the Warren Court's reapportionment decisions brought about.

The tension between continuity and change creates other difficulties with the book's analysis. Horwitz shows well the Warren Court's halting, yet ultimately successful, undermining of McCarthyism through expanded interpretations of First Amendment protections. He points out that these decisions aroused such conservative resistance that a coalition of Southern Democrats and right-wing Republicans had nearly enough votes in the Senate to enact the most far-reaching reduction of the Court's appellate jurisdiction since Reconstruction: the Jenner-Butler Bill of 1957. In 1958, the measure failed to pass by just eight votes. In addition to political pressure, the Warren Court had to contend with an uneven course of First Amendment doctrine that reached back to World War I. By the end of the 1920s, Oliver Wendell Holmes [End Page 135] and Louis D. Brandeis developed, through dissenting and concurring opinions, libertarian doctrines favoring greater freedom of expression. Horwitz notes this dissenting tradition, but ignores the irony that the Court adopted the liberal doctrines between 1931-37 in a series of decisions written by Republicans, Chief Justice Charles Evans Hughes and Justice Owen Roberts. Once the Roosevelt liberals gained the majority, they broadened further the First Amendment guarantees, led particularly by Justice Black. By the early 1950s, however, Black and Douglas became lone dissenters as the Court retreated before McCarthyism. In Horwitz's account, Brennan's doctrinal innovations during the 1960s are given the most credit for the Court's final reversal of McCarthyism. As with the civil rights and apportionment discussions, the problem is that such an assessment underestimated the Court's long-term connection with liberalism reaching back to the 1930s and 1940s, thereby obscuring the degree to which the Warren Court represented in the 1950s and 1960s a consummation of the national liberal consensus.

Horwitz thus recognizes the Warren Court's fundamental contribution to American liberalism, but does so incompletely. In 1938, a new liberal majority upheld an ordinary New Deal market regulation of the Carolene Products Company; the Carolene Products decision was noteworthy, however, because it included what became known as Footnote Four. This footnote summarized succinctly the basic principles that generally would guide the Supreme Court's civil rights and civil liberties jurisprudence throughout the remainder of the twentieth century. Essentially, the idea was that where government action threatened individual rights--particularly involving "insular minorities" who had been excluded from the democratic process--the Court would apply a strict judgment with a presumption preferring the rights claim. In matters of economic policy, by contrast, the presumption would favor the government's regulatory authority.

The constitutional principles Footnote Four articulated did not, of course, determine any given case. Rather, it signaled a jurisprudential recognition that a more liberal individual rights consciousness was in the ascendancy, while concerns about property and market regulation were to be left primarily to legislatures and bureaucrats. During the 1930s and 1940s, the strict scrutiny implications of Footnote Four became linked to the issue of how far provisions of the Bill of Rights would apply to the states through an incorporation into the due process clause of the Fourteenth Amendment. Here again, Justice Black had taken the lead in the 1940s arguing that the due process clause incorporated the whole Bill of Rights, but no more. Black's "total" incorporation theory was never accepted. Yet, the Warren Court did more than any Court before it to apply nearly all the Bill of Rights provisions to the states on a selective basis. [End Page 136]

Horwitz retells clearly the Footnote Four and incorporation stories; his omissions, however, are hard to understand. The discussion of how the Warren Court used the incorporation doctrine to establish more uniform guarantees of criminal procedures among the states--identified most familiarly with the creation of the so-called Miranda warnings--is presented lucidly. Horwitz makes the connection between these important procedural innovations and the movement to professionalize local law enforcement which emerged after World War II in response to decades of revelations about police corruption. Nevertheless, he fails to consider the bearing this professionalization movement had on pioneering state court decisions by such innovators as California Supreme Court Judge Roger Traynor whom Warren knew. By the time the Warren Court finally got a majority during the 1960s to institute Miranda and related decisions, about twenty state courts had already led the way, beginning in the early 1950s. The Warren Court's liberalism thus had more support in the criminal procedure field than the shrill cry of its law and order critics suggested.

Similarly, Horwitz makes his most original contribution by suggesting a cultural dimension to constitutional outcomes. He links the right of privacy and First Amendment theories of obscenity and symbolic speech to "democratic culture" (p. 99). The Warren Court grappled with but failed to achieve satisfactory doctrines governing obscenity; it succeeded, however, in establishing wider guarantees of freer, symbolic expression and created in Griswold v. Connecticut (1965) the revolutionary right of privacy. To a greater or lesser extent each of these constitutional issues involved standards of public morality rooted in changing cultural attitudes toward institutional religion, which was a central theme of twentieth-century liberalism. Yet Horwitz does not discuss the Warren Court's school prayer and other establishment of religion decisions. The failure to integrate religion into the meaning of "democratic culture" is another problem arising from inadequately locating the Warren Court within the broader stream of American liberalism.

Tushnet's study of Justice Thurgood Marshall suggests what became of the Warren Court's legacy. A fine sequel to his much acclaimed earlier book about Marshall's years at the NAACP Legal Defense Fund, Tushnet's new work carries the story of Marshall's life from the years preceding his appointment to the Court by Lyndon B. Johnson in 1967 to his retirement in 1991. After Marshall left the LDF in 1961, John F. Kennedy appointed him to the U.S. Circuit Court of Appeals; Johnson then chose him to be solicitor general of the United States. In each position Marshall was a loyal, liberal Democrat, remaining faithful to Johnson's Great Society even as it was undermined by the Vietnam War. Johnson's selection of Marshall as the first African-American to sit upon the Supreme Court was historic; yet on a more prosaic level it [End Page 137] seemed to confirm the continuance of the judicial liberalism the Warren Court had come to symbolize by the late 1960s.

But the undoing of the Warren Court's liberal activism had already begun. Tushnet places the weakening of the Warren Court's role in sustaining liberalism against the background of the breakup of the political coalition supporting the Great Society. Urban riots, anti-war student protests, the convergence of an increasingly globalized economy and the Vietnam War, and cultural tensions reflected in new rights claims by women, black power advocates, and gays diminished the support white, working-class people were willing to give to New Deal liberalism. Ironically, the Court's own decisions expanding free expression and rights-centered activism facilitated this outcome; its reapportionment decisions contributed further to the process of dissolution by empowering white middle-class, generally Republican, suburbs. Thus, within a few years after Chief Justice Warren's retirement in 1969, Marshall found himself increasingly on the defensive in a struggle to forestall the demise of the Warren Court's liberal promise.

Tushnet's major contribution is to explain how a core judicial liberalism persisted amidst an increasingly vigorous national conservatism. Throughout the 1970s and most of the 1980s, many of the Warren Court's fundamental precedents proved surprisingly durable. Under the leadership of Chief Justice Warren Burger between 1969 and 1986, a Court dominated by Richard Nixon's and Ronald Reagan's appointees initially expanded and then cut back the right of privacy as it applied to abortion. The Court further extended the First Amendment's guarantees of free expression, established enlarged rights claims for women and minorities on the basis of affirmative action, and extended the remedies available in school desegregation cases by instituting the policy of busing, while limiting its useful application outside the South where it was harder to prove an intent to racially discriminate. The Court also created the first constitutional protection against capital punishment. The principle became so entangled in procedural intricacy, however, that the practical outcome in a given case was increased opportunity to gain protracted delay of implementing the death penalty, but not its abolition. The clearest weakening of the Warren Court's decisions was in the area of criminal procedure and due process. Even here, however, the basic framework identified with the Miranda warnings remained intact.

William H. Rehnquist moved from associate to chief justice in 1986. Renewed efforts to do away entirely with the liberal precedents achieved some more limited success, but rarely complete victory. By the time Marshall left the Court in 1991, it was apparent that he and Brennan, who retired the year before, had helped to preserve at least a minimum of liberal constitutionalism. Telling a story of persistence within decline, Tushnet reveals how [End Page 138] the Court's institutional workings interact with the outside world. The rules the Court uses to govern its internal operations, like the doctrine it employs to decide cases, shape and are shaped by each judge's personal beliefs and the pressure of outside events. Tushnet locates his treatment of criminal procedure, affirmative action, racial desegregation, and the death penalty and its administration inside this institutional framework. He has a real facility for explaining how institutional autonomy did much to ensure that the Warren Court's direct influence would shrink only gradually. Thus, taken together, Tushnet and Horwitz raise the critical question whether the Warren Court and its legacy suggest the resilience or eventual demise of American liberalism.

Tony A. Freyer, Department of History and School of Law, the University of Alabama, is the author of "The Little Rock Crisis Reconsidered," Arkansas Historical Quarterly 56:3 (Autumn 1997): 361-70; and the editor of An American Judge: Frank M. Johnson of Alabama (forthcoming from University of Alabama Press).

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