All the Supreme Court Really Needs to Know It Learned from the Warren Court

I. INTRODUCTION It accepted wisdom among constitutional law scholars that Supreme Court now considerably more conservative than it was during tenure of Chief Justice Earl Warren. In this Article, I hope to suggest that conventional wisdom at least partly wrong. In Part I, I suggest that many of current Court's so-called conservative cases and doctrines are direct descendants of Warren Court cases and doctrines. Although my attribution of similarity new, description of cases and doctrines themselves entirely unoriginal. Indeed, history of two sets of cases-of Warren Court and current Court-could be drawn from almost any textbook in constitutional law. The interesting question, then, why obvious parallels have escaped most observers. In Part II, I explore why we cling to myth that current Court much more conservative than its predecessor. I begin with two definitional caveats. To canvas entire scope of Warren Court-or of current Court, for that matter-would be massive task. Instead, I will limit this Article to few salient areas of law. The Warren Court known primarily for its championship of individual liberty and racial equality. Even much of vaunted Due Process Revolution-enlarging rights of both criminal defendants and civil litigants-found its genesis in racial equality.l The Equal Protection Clause was centerpiece of Court's equality jurisprudence. The paradigmatic protection of individual liberty Free Speech Clause of First Amendment, which first received its most expansive interpretations at hands of Warren Court. Thus, I will focus on jurisprudence of those two clauses. There also question of timing. Earl Warren retired in 1969, but for purposes of examining jurisprudence of Warren Court, Warren's actual tenure not wholly relevant. After all, both Roe u. Wade2 and cases extending heightened scrutiny to gender discriminationS-key liberal holdings-were decided after Warren Burger became Chief Justice. And of Justices still on Court, conservative Rehnquist was appointed in 1972 and liberal Stevens in 1975, so things must still have been in flux at that time. Thus, although I will focus primarily on cases decided between 1954 and 1969, I will include few cases up through 1976-trying always to pick cases that continued earlier trends, and examining individual Justices' votes to emphasize continuity with Warren Court decisions. II. DOCTRINAL PARALLELS A. Equal Protection 1. The Current Court The current Court's controversial equal protection cases hardly need reviewing, but brief summary in order. The Court has been most loudly denounced as conservative for its decisions on two contemporary issues: affirmative action and creation of unusually shaped legislative districts in order to increase minority representation. In pair of recent cases, Supreme Court held that racial discrimination equally constitutionally suspect whether it directed against whites or against people of color. IT]he standard of review under Equal Protection Clause, Court wrote in City of Richmond v. Croson Co.4 and reiterated six years later in Adarand Constructors, Inc. v. Pena,5 is not dependent on race of those burdened or benefited by particular classification.6 This even-handedness demanded, according to Justice O'Connor's majority opinion in Adarand, by basic principle that Fifth and Fourteenth Amendments protect persons, not groups.7 And it consonant with Constitution's underlying aspiration toward a Nation of equal citizens in society where race irrelevant to personal opportunity and achievement.8 Noting the sorry history of both private and public discrimination in this country,9 Court nevertheless required race-neutral responses in all but rarest circumstances. …