A Remembrance of Things Past?: Reflectionson the Warren Court and the Struggle forCivil Rights

The logic of passion, even when it serves the right cause, is never irrefutable to someone who is not moved by passion.1I. IntroductionAs the Articles that follow demonstrate, the Warren Court's legacy in the field of civil rights and civil liberties is both tremendously important and deeply flawed. The legacy is unquestionably important because the Warren Court oversaw a judicial revolution that helped to speed the end of American apartheid in the Deep South. One cannot overestimate the significance of this legacy: Chief justice Earl Warren and his colleagues did more to advance the project of equal citizenship than any court, state or federal, before or after.As in the field of criminal procedure and with respect to the role and function of the federal courts, the Warren Court's efforts in the area of civil rights and civil liberties were nothing short of revolutionary.2 Whether in the area of freedom of speech, equal protection, or substantive due process, Chief Justice Earl Warren and his colleagues redefined - in a radical way - the relationship of the citizen to the state.Consider, for example, New York Times Co. v. Sullivan,3 a case that distinguished free speech scholar Alexander Meiklejohn characterized as occasion for dancing in the streets.4 In New York Times, Justice Brennan effectively abolished the concept of seditious libel against the state - a concept incorporated in the Alien and Sedition Act of 1798 and never formally repudiated until 1964.5 Essentially, the Warren Court created a right of fair - even if factually inaccurate - comment by the citizen against the government. Arguably, the intellectual framework of New York Times provided inspiration for later cases like Brandenburg v. Ohio,6 Hustler Magazine, Inc. v. Falwell,7 and even Central Hudson Gas & Electric Corp. v. Public Service Commission.8Similarly, how can one talk meaningfully about equal protection doctrine without mentioning Brown v. Board of Education,9 Boiling v. Sharpe,10 Baker v. Carr,11 and Reynolds v. Sims?12 In the context of state action, the most aggressive tests find their genesis in Warren Court opinions, particularly in Burton v. Wilmington Parking Authority13 and Reitman v. Mulkey.14 Finally, the resurrection of meaningful substantive due process review was the handiwork of the Warren Court. Without Griswold v. Connecticut,15 it is less certain that we would have Roe v. Wade.16 The Supreme Court's return to substantive review of state and federal legislation for consistency with unenumerated, yet fundamental, rights runs back to Griswold (as does the rehabilitation of Lochner17 era cases such as Meyer v. Nebraska18 and Pierce v. Society of Sisters19).II. A Brief Review of the Warren Court's Approach to Enforcing Constitutional Rights: The Unfortunate Disjunction of Means and EndsThe most notable characteristic of the Warren Court in the field of enforcing constitutional rights was its creativity in reaching results favorable to those asserting rights against the government and the consistency with which it exhibited this creativity. Most of the time, I find myself very sympathetic to the outcomes in the Warren Court's major civil rights and civil liberties decisions.20 However, that said, I harbor some serious reservations about the long-term effects of the methodology often employed by the Warren Court in reaching these desirable results.21 A careful scholar of the Constitution and constitutional jurisprudence should have serious misgivings about the Warren Court's willingness to accept and embrace its role as a political institution by reaching results that created new law without much of an effort to ground the result in the text or history of the Constitution or to relate the result back to prior judicial precedents.22 More often than not, if the end was sufficiently important, the means used to get there did not terribly concern the Warren Court. Arguably, this ends-justify-the-means approach overshadowed - and ultimately betrayed - the Warren Court's institutional obligations to act as a legal and judicial institution. …