Harry N. Scheiber Fifty years, almost to the day, after Earl Warren was con½rmed as chief justice of the United States in March 1954, the University of Cali- fornia, Berkeley commemorated the Warren Court’s legacy with a conference cosponsored by the Academy. The meeting was organized and hosted by uc Berkeley’s Earl Warren Le- gal Institute. During his sixteen years as chief justice, War- ren was instrumental in advancing durable changes in American law in the cause of equal rights and democratic governance. The unique influence of the Warren Court went far beyond its most famous rulings, in Brown v. Board of Ed- ucation and other school desegregation cases. Thus the conference devoted several panels to analyses of the Court’s legacy in the areas of free speech and press, criminal law, federalism, and one-person/one-vote doctrine. In addition, Professor Jesse Choper of the Boalt Hall facul- ty, former Earl Warren law clerk, and three oth- er former clerks–Senior Judge James Brown- ing of the U.S. Ninth Circuit Court of Appeals, uc Berkeley Chancellor Emeritus I. Michael Heyman, and Professor Scott Bice of the Uni- versity of Southern California–offered their reflections on Earl Warren’s character and achievements. (Judge Browning’s address is available on the Earl Warren Legal Institute website, www.law.berkeley.edu/cenpro/ earlwarren/constlaw.html.) The Warren Court’s impact on the law reached in dramatic ways beyond America’s borders, a © Yousuf Karsh/Retna Ltd. dimension of global constitutional development that is less well known than is the Court’s im- pact on American life and law. The conference Congress and the Earl Warren Court featured a justice of the Greek Supreme Court, Ioanni Dimitrakapolous, and scholars from Philip P. Frickey and Gordon Silverstein law faculties in Chile, Japan, Canada, Norway, Commentaries by Neal Devins and Nelson W. Polsby and Sweden who considered how modern-day Introduction by Harry N. Scheiber changes in foreign jurisprudence and judicial behavior have reflected that wider impact. These papers were presented at a conference on “Earl Warren and the Warren Court: A Fifty-Year Retrospect,” held at the Boalt Hall School of Law at the University of California, Berkeley, on Ineluctably the theme of the Warren Court’s February 27–28, 2004. “judicial activism” cut across all the topical panels. It may be said that in every era of its history, from the days of John Marshall’s chief Philip P. Frickey is Richard W. Jennings Professor of Nelson W. Polsby is Heller Professor of Political Sci- justiceship to William Rehnquist’s, the Supreme Law at the University of California, Berkeley. He has ence at the University of California, Berkeley. He has Court has ruled in an “activist” vein in a vari- been a Fellow of the American Academy since 2002. been a Fellow of the American Academy since 1982. ety of causes. Although many of the conference Gordon Silverstein is assistant professor of political Harry N. Scheiber, who became a Fellow of the papers at Berkeley were concerned with inter- science at the University of California, Berkeley. American Academy in 2003, is director of the Earl pretive questions and case law given little at- Warren Legal Institute at the University of California, tention in previous scholarship, they reinforced Neal Devins is Goodrich Professor of Law, director Berkeley, and the Riesenfeld Professor of Law and the conclusion of Warren’s chief biographer, G. of the Institute of Bill of Rights Law, and professor History at the Boalt Hall School of Law, University Edward White, namely, that what distinguished of government at the William & Mary School of Law. of California, Berkeley. the Warren Court from many others was that 6 Bulletin of the American Academy Summer 2004 its activism “facilitated social change...and In 1951, in Dennis v. United States, the Supreme promote[d] the interests of the disadvantaged” When the Court strikes Court upheld the constitutionality of the Smith rather than defending established interests and down a federal statute as Act, which among other things outlawed the reinforcing the status quo. advocacy of overthrowing the national gov- ernment by force or violence. Dennis has come The focus of one of the panels at the Berkeley unconstitutional, ordinarily to be understood as a major deviation from the conference was a reappraisal of the relations Congress has no authority Court’s jurisprudence of free speech, for the between Congress and the Supreme Court dur- case allowed to stand a statute that outlawed ing Warren’s tenure. The Academy is current- to reenact the statute. advocacy of political ideas. ly assessing the interaction between Congress and the Court today–a collaborative study in- In fairly short order, the Court considered a branches has accelerated in recent years.1 One spired by the dramatic upsurge in the Rehnquist long string of cases involving alleged political interesting aspect of this relationship has been Court’s overturning of congressional statutes subversives–some prosecuted under the Smith the way in which the Court can limit direct con- in the rede½nition and defense of “federalism” Act, others dragged before legislative investi- flict with Congress while accomplishing many and “state sovereignty” principles. Two mem- gating committees bent on invading their pri- of the justices’ goals. A prime example of this bers of that Academy study, Philip P. Frickey and vacy of thought and association, still others strategy is when the Court avoids deciding Nelson W. Polsby (both, uc Berkeley), joined thrown out of public employment or kept out whether a federal statute is unconstitutional with Neal Devins (William & Mary School of of the organized bar on grounds of disloyalty, by interpreting the statute to be constitution- Law) and Gordon Silverstein (uc Berkeley) as and a few threatened with loss of citizenship or ally unobjectionable. principal speakers on the Berkeley panel. deportation. In light of Dennis and the appar- For a host of reasons, this “rule of avoidance” ent capitulation to public pressure suggested Although these four authors do not agree on may seem prudent. When the Court strikes by it, one might have expected the Supreme how the functional relationship of judicial and down a federal statute as unconstitutional, or- Court to have feared to tread upon these pro- congressional power should be interpreted for dinarily Congress has no authority to reenact ceedings. Nonetheless, while the Court’s ac- the Warren Court period, there is a fascinating the statute. Assuming the Court will not over- tions were somewhat uneven, in many cases a common ground in that none of them accepts rule itself at some future point, the only way majority of justices made it more dif½cult for the revisionist idea (popular in some scholarly to overturn the Court’s decision is by constitu- these investigations and loyalty proceedings to quarters today) that the Warren Court was only tional amendment. Thus, the arguably awe- be conducted, and provided a measure of jus- marginally responsible for advances of the 1950s some, counter-majoritarian exercise of judicial tice to persons harmed by them. Rarely did the and 1960s in regard to equal protection, civil review–whereby as few as ½ve unelected jus- Court invalidate government action as uncon- rights, and democratic governance. tices with life tenure can displace the judgment stitutional; instead, using the rule of avoidance, The conference’s sponsorship was shared by of the entire elected Congress–should be very the Court generally found a nonconstitutional the Boalt Hall School of Law at Berkeley, where cautiously undertaken. Relatedly, it may seem ground for setting aside the proceeding. The Warren earned his law degree in 1914, and by wise to indulge in the assumption that Congress rule of avoidance, usually thought to be an in- the University’s Jefferson Lectures Endowment, would prefer the Court retain the statute, even strument of judicial restraint, became a nar- the Institute of Governmental Studies, and the if narrowed by a saving interpretation, rather row but sharp sword of judicial revision. In the Center for the Study of Law and Society. Addi- than strike it down. Moreover, if the Court in- space allotted to me, I shall examine a few ex- tional sponsors of the conference were the uc terprets the statute more narrowly than Con- amples of this indirect judicial technique and Berkeley Vice Chancellor for Research and the gress wishes, Congress can of course amend then consider its political aftermath. Robbins Collection and the Sho Sato Program the statute to make it broader and, in all likeli- In 1953, a year before Earl Warren became chief in Japanese and U.S. Law, both of the Boalt Hall hood, the constitutional question would come justice, Justice Frankfurter’s majority opinion School of Law. back to the Court eventually. For these and oth- in United States v. Rumely provided a textbook er reasons, the rule of avoidance is not a con- example of narrow but effective invalidation Later this year, the Institute of Governmental troversial approach among the justices. Studies Press at uc Berkeley will publish under of congressional action based on technicalities. my editorship the full papers from the entire As with just about everything else, however, Rumely, the secretary of an organization that, conference. the devil is in the details. In a recent study,2 I “among other things, engaged in the sale of examined a fascinating period, roughly paral- books of a particular political tendentiousness,” leling the McCarthy era, in which application refused to disclose to the House Select Commit- of the rule of avoidance allowed the Court to tee on Lobbying Activities the names of persons Philip P. Frickey avoid many direct confrontations with Con- who had made bulk purchases of such books.