Judicial Excellence After Earl Warren

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JUDGING THE PERFORMANCE OF SUPREME COURT JUSTICES IS A TRICKY BUSINESS. Nearly everyone would agree that the justices should sustain the ideal of JUDICIAL “Equal Justice Under Law,” the motto inscribed on the U.S. Supreme Court building, but what exactly does it mean to do this? Should the justices seek to achieve the best resolution of a controversy from an abstract perspective, or should they abide by expected norms of interpretation that EXCELLENCE produce less-than-optimal outcomes? Should justices be praised for judicial activism or judicial restraint? When (if ever) should justices allow political considerations to influence their decisions? The justices are expected to embody a variety of values simultaneously (some of which after cut against each other), but there is disagreement both about which values should be embodied and which values carry the most weight. How does one adjudicate among the competing values and perspectives to come up with a EARL WARREN standard for good judging?

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The difficulty of quantifying judicial ship and reliance on precedent, history, and judges” to determine the best candidate for excellence has not stopped observers of the doctrine were deemphasized as criteria for a judicial position.9 U.S. Supreme Court from trying. Various excellence on the Court, while the pursuit of With so many criteria to be applied, lists of all-star Supreme Court justices have ethical ideals, informed by a certain reading it is a wonder that we think highly of any been compiled and debated.1 Such lists of the text, became a more central concern justice at all. But perhaps focusing on provide more than idle entertainment. of judicial performance. Further, Warren’s criteria is a backward approach. Maybe we Highlighting particular justices as exem- judging, combined with a strong conserva- do not come to regard a justice as great plars serves aspirational and pedagogical tive backlash, gave rise to the contemporary because he or she conforms to some list of functions within the legal community by categories that dominate discussions about pre-established standards, but rather we reminding lawyers, judges, and academics constitutional interpretation — namely, recognize certain standards as relevant and of our highest ideals and how a particular living constitutionalism and originalism important because of the way a particular judge, at a particular moment in history, — and led to a heightened sense of concern justice embodies them. It may simply actualized those ideals. No justice is perfect, about judicial activism.5 This change in be easier to point to the great justices of of course, but canonizing certain justices can vocabulary, as well as a change in standards the past than it is to think in the abstract provide a useful standard against which we used to evaluate Supreme Court justices, about what would make a justice great. can evaluate other justices. is an enduring legacy of Warren and the Observers generally agree on which justices This article argues that the canoniza- Warren Court. are truly great.10 John Marshall — “the tion of Chief Justice Earl Warren changed great Chief Justice”11 — is almost univer- the standards by which judicial excellence JUDICIAL EXCELLENCE sally acknowledged as an excellent justice The problem in evaluating judicial for his role in defining the contours of performance is not that we have too few the national government and strengthen- standards, but that we have too many. ing the prestige and power of the Court, Maybe we do not come Reflecting on a survey of legal experts and for his nearly unmatched judicial to regard a justice as conducted in 1970, William D. Bader intellect.12 Louis D. Brandeis and Oliver and Roy M. Mersky give the following Wendell Holmes, Jr.13 also generally rank great because he or she list of judicial desiderata: “scholarship; high in surveys of legal academics and conforms to some list of legal learning and analytical powers; practitioners.14 Perhaps judicial excellence craftsmanship and technique; wide general is something one knows when one sees it. pre-established standards, knowledge and learning; character, moral Earl Warren tends to come out well but rather we recognize integrity, and impartiality; diligence and in surveys of judicial excellence. In 1970 industry; clear, logical, and compelling Albert P. Blaustein and Roy M. Mersky certain standards as relevant communication skills; openness to change; asked 65 law school deans and professors and important because of courage to take unpopular positions; to rate all Supreme Court justices up to dedication to the Court as an institution 1969 as “great,” “near great,” “average,” the way a particular justice and to the office of Supreme Court justice; “below average,” or “failure.” The respon- them. ability to carry a proportionate share of the dents were given no criteria by which to embodies Court’s responsibility in opinion writing; judge the justices. Earl Warren, having and statesmanship.”6 Another list based just retired, was classified as “great,” as on survey data included “judicial restraint, were 11 other justices.15 In 1993 Mersky is gauged. Warren has been both praised judicial activism, enhancement of the and Blaustein conducted a similar survey and vilified since the day he announced a Court’s power, protection of individual in which Warren placed fifth overall, unanimous decision in Brown v. Board of rights, length of service, impact on the law, behind only Marshall, Holmes, Brandeis, Education,2 but in polls of experts he consis- impact on society . . . protection of societal and Joseph Story.16 In 1989 Robert C. tently ranks among the top Supreme Court rights, dissent behavior, and personal attri- Bradley asked scholars, judges, attorneys, justices in history.3 Warren is esteemed for butes”7 as bearing on the determination of and students to “list and rank order ten “his leadership, his statesmanship, and, most judicial excellence.8 More recently, empiri- Supreme Court justices who you consider of all, for the results he achieved. However, cal scholars have sought out more objective as great.” Similar to Blaustein and Mersky, Warren and the Warren Court4 were uncon- criteria to quantify judicial acumen. Steven Bradley did not supply the respondents ventional in many respects. I argue that Choi and Mitu Gulati suggest measuring with any criteria to evaluate justices. Warren’s performance changed the standards variables such as citation rates (by other Overall, Warren came in as the third we use to evaluate judicial excellence in judges and by academics), inclusion of greatest justice in history (behind Marshall many ways. His bold defense of individual opinions in casebooks, speed and disposi- and Holmes), though his standing varied liberties led to a recalibration in the values tion of cases, willingness to disagree with according to the various groups surveyed. that Supreme Court justices are expected to other judges nominated by the same party, Scholars ranked him third, judges fifth, embody. Because of him, judicial craftsman- and so on, in a hypothetical “tournament of attorneys sixth, and students fifth.17 Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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Clearly, there is a general recognition than justice? Warren’s influence on judicial decisions of the Court will be received among observers in general and members evaluation, then, lies not only in the traits in both law and in society. A judicial of the academy in particular that Warren for which he is admired but also in the way statesman not only keeps pace with social was among the very greatest justices in that certain values came to be seen as more change but seeks to influence its direction. Supreme Court history. How does Warren’s important through his example. A judicial statesman perceives the insti- presence in the Parthenon of Supreme tutional possibilities for using the power, Court Greats affect the standards used to THE CASE FOR WARREN’S GREATNESS and deftly pursues those possibilities in the evaluate justices? What did he bring to the To his admirers, Warren embodies at least name of justice and the common good. list of greats that was not already there? In three qualities that set him apart as one of Warren’s statesmanship is manifest in addressing this question we need to recog- the greatest justices of all time: charismatic his Court’s decisions, which have become nize that the relative weights of the values leadership, statesmanship, and the will to monuments of principle for American we expect justices to embody can change bring about just results. Warren’s leadership identity. Decisions such as Brown v. Board over time. The example of a particular on the Court, particularly in Brown v. Board of Education and Miranda v. Arizona are so justice can alter our expectations about of Education and other desegregation cases, well-known and celebrated that they have what is truly important and what is merely was incredible. Legal historian Michael become a permanent part of America’s peripheral in judicial service. Klarman writes that prior to Warren’s collective memory. Though their promise Consider an analogy: in a discussion arrival on the Court the very outcome in was not immediately fulfilled (indeed, of how standards within a social practice Brown was in question. Klarman estimates Southern “massive resistance” delayed change over time, Jeffrey Stout references that only four members of the pre-Warren racial integration in public schools for soccer great Franz Beckenbauer to show Court — Hugo Black, William O. Douglas, how “great ones” change the standards Harold Burton, and Sherman Minton — we use to evaluate greatness: “One thing were strongly inclined to strike down racial that counts in favor of Beckenbauer’s segregation in public schools as unconstitu- Warren’s influence on greatness is the way in which his play as tional.20 A unanimous decision to desegre- judicial evaluation lies not a defender transformed the standards by gate public schools was unthinkable. which defenders have subsequently been After Warren arrived in 1953, he relent- only in the traits for which judged. The standards changed in response lessly sought to persuade his colleagues he is admired but also in the to specific features of Beckenbauer’s play to join a unanimous decision against — his skill as a passer, his ability to join school segregation. With Warren’s arrival way that certain values came the attack without weakening the team’s the outcome of the case was no longer in to be seen as more important defensive configuration, and so forth.”18 question, but a divided Court could make Beckenbauer did not simply fit into a it easier for Southern states to resist the through his example. preexisting mold of what a defender should Court’s orders. In conference with the other do, but rather showed the soccer world a justices, Warren framed the question as one new way of playing the game. of attributing racial inferiority to blacks. more than a decade),23 these decisions were The same can be said of particularly He eventually won over the justices who important episodes in the development of influential justices, such as Earl Warren. thought the decision might be interpreted civil rights. Warren marshaled the prestige Warren showed a generation of lawyers, as a political move. In the end Warren and power of the Court to combat the academics, and judges what the Supreme achieved unanimity and authored the most injustices he saw, and history has borne out Court could do in the name of equality celebrated decision of the 20th century. the weight of many of his contributions.24 and civil rights. Against the backdrop of Warren maintained this unity in the string Lastly, and most importantly, Warren Warren’s example, criteria for evaluating of desegregation cases that followed, and is judged to be great because he made the the quality of Supreme Court justices could for this (as well as other accomplishments) United States more just.25 Titles about never be the same. The brilliant-but-re- he is rightly regarded as one of the greatest Warren and the Warren Court such as served judging style of a justice such as leaders the Court has ever had.21 Justice for All: Earl Warren and the Nation Felix Frankfurter simply did not have the Second, Warren is believed to “be one He Made,26 The Warren Court and the Pursuit same appeal when compared to Warren’s of the greatest statesmen in the history of of Justice,27 and Earl Warren: Justice for All,28 bold pursuit of civil liberties. Could a the Court, second only perhaps to John give a sense of how Warren is viewed by justice, after Warren, be content to simply Marshall. Bernard Schwartz writes that many of his admirers. Morton Horowitz follow the case law and avoid constitu- on the Supreme Court, “the judge must gives a typical summary of the accom- tional controversies where possible? Are be even more the statesman than the plishments of the Warren Court, many the “passive virtues”19 really virtues at all, lawyer,”22 and argues that Warren clearly of which would have been unlikely or given the great strides toward justice that met this standard. A judicial statesman impossible without the justice’s leadership: the Warren Court achieved? Why would a takes a broad view of history and politics “The range of the Warren Court’s influence justice after Warren settle for anything less and has a keen appreciation for how the has been enormous. The Court initiated a 4 Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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revolution in race relations; expanded the good judging that people in his time took point. After surveying the civil rights constitutional guarantee of ‘equal protec- to be important. The elevation of certain cases of the 1960–61 term, Robert G. tion of the laws’; dramatically expanded aspects of judging, such as arriving at the McCloskey lamented the lack of a system- the freedom of speech and press; over- right answers, brought with it a corre- atic approach to this area of law: “Why turned unequally apportioned legislative sponding demotion of other aspects, such has it done so little to develop a reasoned, districts; accorded defendants in criminal as craftsmanship, adherence to precedent, connected set of doctrines in the field of cases massively expanded constitutional and reliance on history and text. civil rights? Partly no doubt because this protections; and recognized for the first Scholars generally agree that Warren is easier said than done . . . . But though time a constitutional right to privacy.”29 did not have a consistent theory of consti- this might account for some inadequacy Norman W. Provizer and Joseph D. Vigil tutional interpretation. In a 1969 article in doctrinal structure, it does not fully claim that “Earl Warren possessed an predicting that Warren “will go down explain the failure to develop any such enduring passion for justice. He believed as one of the outstanding figures in the structure at all.”36 In an approving passage in equal opportunity for the disadvantaged history of the Supreme Court,”32 Anthony describing Warren’s support for an anti- in society so they could become part of the Lewis writes that “[f]ar more than most flag burning statute, biographer Ed Cray expanding economic scene.”30 They also other members of the Court, [Warren] wrote that “Warren had not a legal theory argue that Warren was willing “to err on evidently felt unconfined by precedent to sustain his opinion; that he would leave the side of too much justice rather than or by a particular view of the judicial to the clerks. He was voting instinctively, too little.”31 Whatever Warren’s faults, function.” As an example, Lewis cites not intellectually.”37 his defenders claim that his accomplish- Trop v. Dulles,33 an opinion authored by Warren is described by many of his Warren in 1958. At issue was a statute that defenders as not caring much for legal made it possible for soldiers who desert in technicalities. He would look at the After Warren’s tenure the wartime to be stripped of their citizenship. controversy in the case, decide what would Lewis writes: “In one vague paragraph the be fair, and then ask his clerks to fill in the possibilities for judicial activ- opinion, gliding past much contrary legal reasons.38 Bernard Schwartz — who with ity would appear differently. history, found that deprivation of citizen- a judicial biography of Warren entitled ship was technically ‘punishment.’ Then, Super Chief cannot be mistaken for a critic Warren’s contributions were although conceding that the death penalty — writes that “[t]he justices who sat with judged by many to be so right, would not have been ‘cruel,’ the opinion him have all stressed that Warren may not concluded that expatriation was so because have been an intellectual like Frankfurter, so self-evidently true, that it brought about ‘total destruction of the but then, as Justice Potter Stewart puts their source or justification individual’s status in organized society’ and it, ‘he never pretended to be one.’ . . . cost him, with the loss of citizenship, ‘the [A]ccording to Stewart, Warren ‘didn’t within the constitutional text right to have rights.’”34 In dissent, Justice lead by his intellect and didn’t appeal to seemed of merely secondary Frankfurter wrote, “[i]s constitutional others’ intellects; that wasn’t his style.’”39 dialectic so empty of reason that it can be Schwartz also writes that “Warren never interest. Warren had to be seriously urged that loss of citizenship is a pretended to be a scholar interested in fate worse than death?” research and legal minutiae. These he right, because he had come to The view that Warren’s opinions, as left to his clerks.” Schwartz then relates the conclusions. well as many opinions that have been that on one occasion Warren’s clerks got right identified in retrospect as “Warren Court” a good laugh out of a “learned law review opinions, are lacking in craftsmanship article” that put great importance on the ments in achieving justice vastly outweigh and legal reasoning is shared by Warren’s way Warren cited precedent. “The clerks anything that can be said against him. critics and defenders alike. Alexander knew that was utterly foolish, because Bickel, arguably the Warren Court’s most nobody (and certainly not the Chief) had THE UNCONVENTIONAL SIDE OF trenchant contemporary critic, wrote in paid any attention to it,” Schwartz relays.40 “WARREN’S GREATNESS 1957: “The Court’s product has shown Former Warren clerk Gerald Gunther — Those impressed with Warren point to an increasing incidence of the sweeping who would later become a top scholar of the results of his Court’s decisions as proof dogmatic statement, of the formulation of constitutional law — relates that Warren that the United States was a more just results accompanied by little or no effort realized that Justice Frankfurter could get and equitable place in 1969 than it was to support them in reason, in sum, of opin- virtually any outcome he wanted on the in 1953, and they are not without justi- ions that do not opine and of per curiam basis of some alleged legal technicality. fication. But many of Warren’s defenders orders that quite frankly fail to build the This “turned the Chief into a great skeptic, concede, implicitly or explicitly, that bridge between the authorities they cite if not a cynic, about the alleged binding Warren’s judicial style was unconventional. and the results they decree.”35 Many of nature of jurisdictional rules.” According Warren disregarded many of the aspects of Warren’s admirers seem to concede the to Gunther, Warren learned from Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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Frankfurter that a judge could do whatever White thinks (and it is plausible to grant) the way that Warren’s style led to a change he liked, and that “it didn’t turn much on that most judicial decisions start from the in the relative weights assigned to different whether he had a legal basis for it.”41 conclusion and work toward the prem- aspects of judicial performance by observ- Warren and the Warren Court have ises. Warren was unique in that he wasn’t ers of the Supreme Court. As White puts been called “antihistorical” and “antidoc- particularly concerned with obscuring his it, “Warren’s elevation of practical politics trinal” for the way they disregarded history attachment to results: “Technical proficiency and morality to major components in the and precedent to achieve ethical aims. therefore seems to reassure us not so much Court’s decision making downgraded the David J. Garrow, another scholar sympa- about judicial motivation but about judges’ significance of technical reasoning in the thetic to the Warren Court, argues one willingness to track the conventional reason- process of reaching decisions.”52 Prior to of the most important lessons of Brown v. ing patterns and professional sources of their Warren, practical politics and morality Board of Education “is the clear and indeed time. Warren seemed singularly uninter- played some role in the decision-making of almost explicit manner in which Brown ested in carrying out this tracking.”47 Supreme Court justices, but Warren made signifies and symbolizes the post-1954 If Warren wasn’t guided by precedent, these concerns more central to the way Court’s repudiation of historical intent and history, or technical proficiency, what did judicial performance is evaluated. meaningful evidence of historical intent in guide his decision making? White’s answer: Another kind of evidence is the way its reading and application of the reach and Warren’s sense of moral truth. Warren felt that Warren’s example changed the terms meaning of the Fourteenth Amendment.”42 bound to follow the moral imperatives that and categories that people use to describe Garrow argues that the lesson of Bolling v. he found written in the Constitution. He and evaluate the activity of the justices. Sharp, Brown’s companion case, is that “the once characterized law as “float[ing] in a Richard Posner argues that “the test of traditions and niceties of doctrine do not sea of Ethics” and said that there is a “Law greatness for the substance of judicial deci- matter — or at the very most, matter rela- beyond the Law.”48 White sums up Warren’s sions, therefore, should be, as in the case of tively little — when and where the Court felt obligation to the text as follows: “The science, the contribution that the decisions becomes convinced that a fundamental, ethical imperatives that Warren read in the make to the development of legal rules and moral holding needs to be made.”43 Moral Constitution were so clear to him, and his principles rather than whether the decision concerns become central, while doctrinal duty to implement them so apparent, that is a ‘classic’ having the permanence and and historical concerns recede to the periph- matters of doctrinal interpretation were perfection of a work of art.”53 Warren ery of importance. According to Garrow, made simple and matters of institutional clearly qualifies as great on this standard, this approach is continued in “the Warren power became nearly irrelevant.”49 due to the influence he and his Court had Court’s two other landmark antihistorical In short, White concedes that Warren on so many areas of the law. But Warren’s rulings — Baker v. Carr and Griswold v. may have reasoned “poorly” according to example also redefined the categories Connecticut (and to their even better-known the prevailing standards of legal reason- people use to make sense of constitutional progeny, Reynolds v. Sims and Roe v. Wade).”44 ing in the 1950s. But why should those interpretation and the role of the justices. This language may sound extreme, but it standards have any special claim on us? The warring interpretive schools of living is not unique to Garrow. G. Edward White, White writes that “[b]ecause Warren’s constitutionalism and originalism grew another Warren acolyte, shares Garrow’s justifications for a result were often conclu- directly out of the Warren Court years, view and gives an elaborate defense of sory statements of what he perceived to as well as a general concern with judicial Warren’s “antidoctrinal”45 reasoning. From be ethical imperatives, his reasoning as a activism. Though this framing of the judi- the outset, White concedes that Warren jurist was regularly opaque. But opaque cial and interpretive options has come to did not follow the established conventions or unconventional reasoning is not the seem natural to many observers of consti- of legal reasoning of his time: “There is same as no reasoning. It merely invites tutional law, it was not always so. Prior no gainsaying Warren’s indifference to one to analyze Warren’s jurisprudence at a to the Warren Court, one could draw on the approved analytical reasoning of his different level.”50 The level at which White sources other than the constitutional text time. . . . In an age still dominated by would have us analyze Warren’s jurispru- and history without being thought a living process theory, in which judges are expected dence is the level of just results. The result constitutionalist or an activist. to engage in ‘reasoned elaboration,’ duly was what mattered, not the road by which Consider the judicial approach of some acknowledging their sources and demon- one got there. Warren made results-driven of the justices who sat with Warren. Justice strating their capacity at analytical reason- judging respectable (and controversial) in a Felix Frankfurter, for example, does not fit ing, Warren’s style of opinion writing was way that it had not been previously.51 easily into either camp. He was clearly not offensive; many called it inept.”46 White an originalist since, among other things, he argues that it was not inept, only unconven- JUDGING AFTER WARREN was willing to use the Due Process clause tional. The conventions of the time placed In this article I have argued that Warren of the Fourteenth Amendment to strike high value on skillfully navigating the changed the standards by which judicial down police procedures that “shock[] the twisted jungle of case law, citing authority greatness is measured. What would count conscience.”54 Justice John M. Harlan II, for every step in the reasoning, and gener- as evidence for this claim? One kind of too, was neither a living constitutionalist ally deferring to precedent and history. evidence, which I have tried to provide, is nor an originalist. Like Frankfurter, he was 4 Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. 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62 VOL. 101 NO. 1 generally inclined toward restraint, but that could provide external reference points responsible for the divide between living not on the basis of the text alone.55 Harlan for holding a judge accountable. Justice constitutionalism and originalism that believed that judges could use a broad William H. Rehnquist, who joined the structure the interpretive debate today. understanding of some guarantees of the Court just two years after Warren stepped Constitution to combat manifestly irra- down, spent much of his career develop- CONCLUSION tional legislation, but he was much more ing this critique.57 Justice Antonin Scalia Warren, of course, was not solely respon- committed to tradition and history than took it further.58 But it is worth remem- sible for actions of the Court that bears many of his brethren on the Court. Harlan bering that the interpretive options need his name, nor for those of the supporters was no doctrinaire originalist, but he found not appear in such sharp contrast. Prior and critics he inspires. However, it is plenty to disagree with when it came to to Warren, one did not have to choose generally agreed that the accomplish- some of the Warren Court’s most memora- between an unconstrained approach in ments of the Warren Court could not have ble contributions. Between 1962 and 1968 favor of moral rights and an approach that occurred without Warren. In response to (the heyday of the Warren Court) he wrote was wholly beholden to text and history. a question about whether Justice Black an average of 31.1 dissents per term, far Only in response to a particular confluence was the intellectual leader of the Warren more than any other justice on the Court.56 of political and legal factors has such a Court, Justice Potter Stewart responded After Warren’s tenure the possibilities choice appeared unavoidable. that “if Black was the intellectual leader, for judicial activity would appear differently. And herein lies the strange legacy of Warren was the leader leader.”60 Warren Warren’s contributions were judged by Chief Justice Earl Warren. He is remem- was the once-in-a-century justice who had many to be so right, so self-evidently true, bered primarily for extending rights to the courage, confidence, and conviction that their source or justification within the the weak, the disenfranchised, and the to instigate a genuine revolution within constitutional text seemed of merely second- oppressed, but even his admirers are not a branch of government. Warren did not ary interest. Warren had to be right, because entirely certain the Constitution autho- set the standard by which all justices are he had come to the right conclusions. rized him to do so. After Warren, the measured, but he did create a new genre Warren’s critics, on the other hand, justices were still expected to give reasons, of greatness. Call it “rights-protecting countered by seeking to define the duty but the reasoning took on a new character: egalitarianism.” Those who follow Warren of justices in a way that would emphasize Results-driven jurisprudence became both may revere or despise him, but none can Warren’s alleged activism. Frankfurter respectable and reprehensible in a way ignore him. After Earl Warren, the judicial and Harlan’s approaches were useful in that it had not been previously. Speaking function, constitutional interpretation, some respects, but their judicial philoso- for those who admire Warren, Schwartz and the evaluation of judicial performance phy didn’t seem tied to anything objec- says it best: “Perhaps the Brown opinion would never be the same. tive. Therefore, their theories of judicial did not articulate in as erudite a manner restraint did not serve the purpose of as it should have the juristic bases of its DANIEL FROST highlighting the unconstrained nature of decision. But the Warren opinion in that is assistant Warren’s style. Moving forward, theorists case is so plainly right in its conclusion professor of and judges who defined themselves against that segregation denies equality, that one Political Science the example and record of the Warren wonders whether learned labor in spelling at Clemson Court would justify their jurisprudence on out the obvious was really necessary.”59 The University. His the basis of the text, history, and, to some necessity of giving good legal and constitu- work focuses on extent, the traditions of constitutional law tional reasons seemed to decline when the U.S. constitutional and practice. Text and history seemed like results were manifestly just. The Warren law, the history of the U.S. Supreme firm, objective, and uncontroversial sources Court’s decisions and approach are largely Court, and political theory.

1 George R. Currie, A Judicial All-Star Nine, 1964 most observers, sympathetic and critical, associate the Warren Court. As I explain, justices prior to (and Wis. L. Rev. 3 (1964); James E. Hambleton, Warren with the general turn toward individual civil even during) the Warren Court did not define them- The All-Time All-Star All-Era Supreme Court, 69 rights, as well as a relatively “unconstrained” style of selves in these terms and felt free to use originalist A.B.A. J. 462 (1983). More recently, see Cass judging that occurred during Warren’s tenure. and non-originalist justifications for their decisions. Sunstein, Home Run Hitters of the Supreme Court, 5 Howard Gillman argues that something like The Warren Court made the choice between these Bloomberg View, (April 1, 2014) http:// modern originalism was the dominant interpretive interpretive approaches seem unavoidable. www.bloombergview.com/articles/2014-04-01/ approach in U.S. constitutional law until 1937. 6 William D. Bader & Roy M. Mersky, The First home-run-hitters-of-the-supreme-court. See Howard Gillman, The Collapse of Constitutional One Hundred Eight Justices 31–32 (2004). 2 347 U.S. 483 (1954). Originalism and the Rise of the Notion of a ‘Living 7 See William G. Ross, The Ratings Game: Factors that 3 See infra notes 6-9. Constitution’ in the Course of American State-Building, Influence Judicial Reputation, 79 Marq. Law Review 11 Studs. in Am. Political Dev. 191 (1997). 4 401, 403 (1996). For the purposes of this article I use “Warren Court” I generally agree with Gillman’s history, but it 8 to denote the decisions and style of judging which remains true that interpretive categories of “original- See also Felix Frankfurter, The Supreme Court in the are generally associated with Warren’s leadership on ism” and “living constitutionalism” become legally Mirror of Justices, 105 U. Pa. L. Rev. 781, 784 (1957). the Court. Warren does not bear all the responsi- salient in a new and powerful way with the rise of 9 Steven Choi & Mitu Gulati, A Tournament of Judges? bility for the actions of the “Warren Court,” but 92 Cal. L. Rev. 299 (2004). Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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10 See Henry J. Abraham, Justices, Presidents, 28 Christine L. Compston, Earl Warren: Justice 46 Id. at 39. and Senators 1–8 (2008). for All (2001). 47 Id., at 40. 11 29 See Charles F. Hobson, The Great Chief Justice: Horowitz, supra note 26, at 3. For a similar summary, 48 G. Edwin White, Earl Warren as Jurist, 67 Va. L. John Marshall and the Rule of Law (1996). see Anthony Lewis, Earl Warren, in The Warren Rev. 461, 472 (1981). 12 Court: A Critical Analysis 1 (Richard H. Sayler, For a summary of Marshall’s accomplishments, see 49 Id. at 462. Jean Edward Smith, John Marshall: Definer Barry B. Boyer, and Robert E. Gooding, Jr. eds., 1969). 50 . at 477. of a Nation 1–5 (1996). 30 Provizer & Vigil, supra note 24, at 201. Id 51 I hasten to add that much, probably most, of legal 13 Bader & Mersky, supra note 6, at 30, refer to Marshall, 31 Id. at 210. reasoning prior to Warren and the Warren Court Brandeis, and Holmes as “the three greatest justices.” 32 Id. at 3. was also results-driven. A certain degree of results- 14 The esteem accorded to the justices came suddenly 33 356 U.S. 86 (1958). driven reasoning is unavoidable when a justice but has remained strong for nearly three quarters of 34 Lewis, supra note 28, at 5. must persuade at least four other justices to join a century. See White, supra note 2. his or her opinion. The opinion that is eventually 35 Alexander M. Bickel & Harry H. Wellington 15 Albert P. Blaustein & Roy M. Mersky, Rating , handed down by the Court often only has the Supreme Court Justices, 58 A.B.A. J. 1183, 1183 Legislative Purpose and the Judicial Process: The Lincoln virtue of being what a sufficient number of justices (1972). The results were listed chronologically, so Mills Case, 71 Harv. L. Rev. 1, 3 (1957). are willing to sign on to. 36 Robert McCloskey, it is hard to tell exactly where Warren fell within Deeds Without Doctrines: Civil 52 White, supra note 45, at 44. this list of twelve. However, from comments that Rights in the 1960 Term of the Supreme Court, 56 Am. 53 the authors make it is clear that Warren came in Pol. Sci. Rev. 71, 88 (1962). Richard A. Posner, The Learned Hand Biography and the Question of Judicial Greatness, 104 Yale L.J. 511, behind Marshall, Holmes, and Brandeis. 37 Ed Cray, Chief Justice: A Biography of Earl 523 (1994) (reviewing Gerald Gunther, Learned 16 See Ross, supra note 6, at App. 1. Warren 492 (1997). Hand: The Man and the Judge (1994)). 17 38 Bernard Schwartz, Super Chief: Earl Warren Leaders of the Pack: Polls and Case Studies of 54 Rochin v. California, 342 U.S. 165 (1952). Great Supreme Court Justices ch. 1 (William D. and His Supreme Court: A Judicial Biography 55 Pederson & Norman W. Provizer eds., 2003). 68–69 (1983). See also Cray, supra note 37, at 310. In Poe v. Ulman, 367 U.S. 497 (1961), a precursor to Griswold v. Connecticut, Harlan voted to strike down a 18 39 Jeffrey Stout, Democracy and Tradition 274 Schwartz, supra note 38, at 31. contraceptives ban on the basis of a broad reading of (2004). 40 Id. at 68. the Due Process clause of the 14th Amendment. 19 Alexander M. Bickel, The Least Dangerous 41 Cray, supra note 37, at 310. 56 See Thomas M. Keck, The Most Activist Branch 111–198 (1962). 42 David J. Garrow, From Brown to Casey: The U.S. Supreme Court in History: The Road to 20 Michael J. Klarman, From Jim Crow to Supreme Court and the Burdens of History, in Race, Modern Judicial Conservatism 70 (2004). The Civil Rights: The Supreme Court and the Law, and Culture: Reflections on Brown v. second most dissenting justice was Stewart, with an Struggle for Racial Equality 298 (2004). See Board of Education 74 (Austin Sarat ed., 1997). average of 24.1. Black came in third with 21. generally id. at 292–312. 57 43 Id. at 78 (emphasis in original). See id. at 123–33. 21 For an excellent history of Warren’s involvement 58 44 Id. at 75. See Antonin Scalia, A Matter of Interpretation: in Brown and other desegregation cases, see Dennis Federal Courts and the Law (1997). J. Hutchinson, Unanimity and Desegregation: 45 G. Edward White, Earl Warren’s Influence on 59 Schwartz, note 21, at 438. Decisionmaking in the Supreme Court, 1948-1954, 68 the Warren Court, in The Warren Court in supra Geo. L.J. 1 (1979). Historical and Political Perspective 44 60 Schwartz, supra note 38, at 31. (Mark Tushnet ed., 1993). 22 Bernard Schwartz, The Judicial Ten: America’s Greatest Judges, 4 S. Ill. Univ. L.J. 406, 436 (1979). 23 See generally Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 39–172 (2008). 24 Bickel seems to have gotten it wrong when he wrote, “[T]he Warren Court’s noblest enterprise — school desegregation — and its most popular enterprise — reapportionment — not to speak of school-prayer cases and those concerning aid to Marty Bucella © 2017 parochial schools, are heading toward obsolescence, and in large measure abandonment.” Alexander M. Bickel, The Supreme Court and the Idea of Progress 173 (1978). Though Warren’s decisions would be narrowed and constrained in the coming decades, there never was an anti-Warren revolution on the Court. 25 Norman W. Provizer & Joseph D. Vigil, Earl Warren: Justice as Fairness, in Leaders of the Pack: Polls and Case Studies of Great Supreme Court Justices 200 (William D. Pederson & Norman W. Provizer eds., 2003). 26 Jim Newton, Justice for All: Earl Warren and the Nation He Made (2006). 27 Morton J. Horowitz, The Warren Court and the Pursuit of Justice (1998).