Warren Court in the United States

Introduction to the Warren Court

According to the Encyclopedia of the American Constitution, it was surely the best known Supreme Court in history, and probably the most controversial. Its grand themes-racial equality, reapportionment, the separation of religion and education, due process-became matters of public consciousness.

Supreme Court of the United States: History The 1950s and 1960s: The Warren Court and Social Change

Introduction to Warren Court

In 1953 President Dwight D. Eisenhower named Earl Warren as chief justice of the Supreme Court. The Warren Court transformed the American legal system, implementing the largest expansion of civil rights and civil liberties in the nation’s history. Warren had an immediate impact on the Court, forging unanimous support for the 1954 case Brown v. Board of Education, which ended legalized segregation in public schools. The landmark ruling also launched a legal and political revolution that eventually abolished the shameful system of official racial segregation throughout American society. Although the Court seemed to offer a narrow rationale in Brown for overturning the 1896 Plessy v. Ferguson doctrine of separate but equal, it soon showed a willingness to strike down virtually all racially discriminatory laws. By the time the Court decided in Loving v. Virginia (1967) that Virginia could not ban interracial marriages, it was clear that the Court would use the Equal Protection Clause of the 14th Amendment to bar almost all laws and policies that classified people on the basis of race. The Supreme Court did not stop at striking down discriminatory laws. It also affirmed the power of Congress to guarantee voting rights through strict laws, to require the racial integration of public facilities, and to enact a variety of other policies.

Under Chief Justice Warren’s leadership, the Court also began to roll back restrictions on freedom of speech and association that previous Courts had endorsed in the early 1950s to fight Communism. By the late 1960s the Court dramatically transformed First Amendment doctrines. In New York Times v. Sullivan in 1964 the Court established a rule that made it far more difficult for public figures to win libel cases against the news media. By 1969, Warren’s last year on the Court, the justices were willing to adopt a First Amendment rule in Brandenburg v. Ohio that protected nearly all types of political speech, except that which incited “imminent lawless action.”

The Warren Court also carved out new protections for people accused of crimes. The Court applied the 4th, 5th, and 6th amendments to the states by incorporating them into the 14th Amendment, providing broad new rights for defendants in criminal cases. In 1961 in Mapp v. Ohio the Court held that evidence seized in violation of the Fourth Amendment must be excluded from all trials. In 1963 it ruled in Gideon v. Wainwright that states must provide anyone accused of a felony with a lawyer to assist in the defense. In 1966 the Court defied growing conservative opposition to its expansion of rights of the accused when it declared in Miranda v. Arizona that suspects had to be advised of their constitutional rights when they were put under arrest. In the Miranda case the Court further ruled that courts could not accept suspects’ confessions unless they offered them after the police advised them of their rights.

The Warren Court generally denied claims to substantive liberties beyond those specifically named in the Constitution, such as the freedoms of speech and press. In one key decision, however, the Court expanded the substantive due process rights to include a right to privacy. The ruling came in 1965 in Griswold v. Connecticut, in which the Court struck down a Connecticut ban on the use of contraceptives by married couples. The decision led eight years later to the watershed Roe v. Wade, which overturned state prohibitions on abortion.” (1)

Civil Rights

Few people today realize how important the Civil Rights Cases were. As Yale law professor Akhil Reed Amar has pointed out, if the Supreme Court had upheld Congress’s power to protect civil rights in 1883, the 1875 Civil Rights Act would have trumped the state law that segregated railway carriages in Plessy, as well as much of the Jim Crow legislation that swept the South in the early 20th century. By invoking the shibboleth of states’ rights to limit Congressional power, the Supreme Court helped crush equal opportunity for blacks for generations.

Ninety years after the ill-fated Civil Rights Act of 1875, the modern civil rights movement pressed for a bill to protect blacks from discrimination in housing, jobs, and public places. A great deal had changed in the interim, including the meaning of the term “civil rights.” Justice Bradley’s view, widely shared in the late 19th century, was that people had civil rights only in relation to dealings with the government. If the government tried to restrict your right to make contracts or own property because of your race, or failed to enforce laws to protect you, you could complain that your civil rights were violated. But a private person could not violate them by definition.

To the leaders of the 1960s civil rights movement, this view was bizarre. For them the most important abridgments of civil rights involved private acts of discrimination—by employers who refused to hire blacks or restaurant owners who refused to serve them at lunch counters. Many of the movement’s standard methods of protest, like boycotts and sit-ins, were aimed at private businesses, not the state.

In promoting the new civil rights bill, the Kennedy and Johnson administrations faced a quandary: The Civil Rights Cases and Harris seemed to foreclose using Congress’s power to enforce the Fourteenth Amendment and prevent private discrimination, and there was no guarantee that the Supreme Court would overturn those 80-year-old precedents. So the administrations offered an additional theory of Congressional power.

A generation earlier, the constitutional struggle over the New Deal had established that the federal government had broad authority to regulate the national economy. Through its power under the Commerce Clause, Congress could enact laws about anything that used or traveled through the instruments of interstate commerce—highways, trains, telephones, mail—and it could regulate anything that might substantially affect interstate commerce. In 1942, the Supreme Court held that Congress could even regulate wheat grown on a family farm for home consumption because, it reasoned, the cumulative effects of home-grown produce could affect the national market. After that, most constitutional scholars assumed that the federal government could regulate just about anything through this power.

Thus, in December 1964, the Warren Court upheld the new Civil Rights Act as a valid regulation of interstate commerce. Congress, the court ruled, could reasonably conclude that segregated restaurants and hotels used food shipped through interstate highways or railways, and that segregation discouraged blacks from spending money and traveling between states. The Warren Court has a reputation for bucking the will of majorities. But as University of Texas law professor Lucas A. Powe Jr. has persuasively argued, the court was remarkably deferential to Congress and promoted the values of national majorities over regional majorities, particularly those in the South. Far from viewing the new Civil Rights Act with suspicion, Warren and his colleagues were eager to uphold it.

For months before the act passed, sit-in cases had been percolating up to the Supreme Court. Lower courts throughout the South were convicting protesters for trespassing on the property of segregated white businesses. Anxious not to derail the civil rights movement, the court had reversed many convictions on technicalities, but thousands of cases were still active. Soon the court would have to decide whether using state trespass laws to keep black protesters out of segregated facilities violated the provision of the Fourteenth Amendment that no state could deny equal protection of the laws. Yet even if the court ordered stores and restaurants to serve blacks, there was no guarantee that Southern businesses would comply.

The 1964 Civil Rights Act took political pressure off the court by putting the authority of a democratically elected Congress behind the civil rights movement. As Robert C. Post of Boalt Hall at the University of California, Berkeley, and Reva B. Siegel of Yale Law School have pointed out, the new Civil Rights Act made Congress the court’s partner in articulating guarantees of equality. The 1964 act let the court interpret the Fourteenth Amendment more narrowly, secure in the belief that Congress could address private discrimination through the new act and subsequent laws.

Thus, the new civil rights law that arrived on the court’s doorstep —and the Commerce Clause theory of Congressional power— was a godsend. The court didn’t have to overturn the 80-year-old precedents of the Civil Rights Cases and United States v. Harris. Instead, the Warren Court treated Congress’s commerce power as a civil rights power: Congress had the power to keep the channels of interstate commerce clear of racial discrimination.

Without directly confronting and overturning the racist Civil Rights Cases, the Warren Court effectively performed an end-run around them. All Congress had to do to pass civil rights legislation was to distort reality, by arguing that denying people their civil rights would harm commerce—instead of asserting that it violated a constitutional guarantee of equal citizenship. In succeeding years, Congress used its commerce power to pass laws that banned discrimination based on race, sex, religion, pregnancy, age, and disability, in areas ranging from education to housing to employment. As a result of the civil rights movement and Congress’s response to it, it began to seem obvious to most Americans that equality, like the economy, was a subject of national concern.

The Warren Court’s solution was clever, but it was a lawyer’s trick and a stopgap measure. The ploy worked only as long as everyone recognized that the lesson of the civil rights movement was that Congress could protect the civil rights of Americans against public and private discrimination, and that the old constitutional vision of the Compromise of 1877 had been rejected if not explicitly overruled. As soon as people forgot that lesson, or refused to acknowledge it, Congress’s power to pass new civil rights laws would be on shaky ground. (2)

Resources

Notes and References

• Information about Warren Court in the Encarta Online Encyclopedia
• By Jack M. Balkin. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. His latest book is “What Brown v. Board of Education Should Have Said”.

Guide to Warren Court

About Earl Warren

Earl Warren, Earl Warren Political Career and Earl Warren Supreme Court Years.