Bringing Politics Back In (reviewing Lucas A. Powe, Jr., The Warren Court and American Politics (2000))

BRINGING POLITICS BACK IN THE WARREN COURT AND AMERICAN POLITICS By Lucas A. Powe, Jr. Cambridge: Harvard University Press, 2000 I. INTRODUCTION In the Preface to The Warren Court and American Politics, Lucas A. Powe, Jr., the Ann..ne Green Regents Chair at the University of Texas Law School, notes that "everyone seems to turn into a partisan once the Warren Court is mentioned."1 Powe, too, as a former clerk to Justice Douglas, admits that he was "once a partisan, celebrating liberal victories and despairing retrenchment."2 But cheerleading, the "dominant feature of Warren Court literature,"3 is not his aim in this ambitious book. Rather, Powe wants to understand what "the Court did and was trying to do," the "import" of the Court's opinions, and the "forces working on the Court that produced them."4 The Warren Court and American Politics is a big, majestic book, with 501 pages of text, not including brief endnotes, eight pages of black and white photographs, and an eight page chronology listing important judicial and political events occurring during the Warren years, from the election of Eisenhower in 1952 to the moon landing of July 1969. It is divided into eighteen chapters and four parts, organized chronologically by Court term, plus a concluding chapter. The first part, covering the 1953-1956 terms, focuses on Brown v. Board of Education and the domestic security cases of those terms that created a serious congressional attack on the Court. Part II, labeled "Stalemate," discusses the 1957-1961 terms and continues the history of the congressional-Court battle. Its focus remains on civil rights and domestic security issues. Over half of the book is contained in Part III, "History's Warren Court," covering the 1962-1968 terms. Its nine chapters, organized substantively, cover civil rights, reapportionment, free speech and obscenity, church-state relations, criminal rights, and classifications based on wealth. Finally, Part IV, "The Era Ends," tells the sad tale of the Fortas fiasco and reflects on the contributions of the Warren Court to American society. Although the organization of the book is typical of legal treatises, Powe's goals and understandings are not. Powe's Warren Court is not viewed as most modern legal scholarship portrays it, primarily as the great protector of Carolene Products "discrete and insular minorities."5 Rather, Powe argues it can best be understood as a result-oriented Court less concerned with legal reasoning than with the outcome. Powe writes that "it is difficult to speak of an overriding jurisprudence apart from the results reached."6 But what were the right results? What drove the Court? For Powe, the answer is straightforward: "From the justices' points of view, the Court's prime role was to facilitate the policies ordained by the elected branches."7 In other words, the Warren Court was "a functioning part of the Kennedy-Johnson liberalism of the mid and late 1960s."8 And this, in turn, explains why it is so revered by liberals. As Powe puts it, "a prime reason that liberals were and remain captivated by the Warren Court is that it represents the purest strain of Kennedy-Johnson liberalism."9 That liberalism included, to be sure, the overturning of Jim Crow segregation. But it was deeper and more encompassing than just that. The Warren Court was a national institution, a coequal branch of the federal government, and it "demanded national liberal values be adopted in outlying areas of the United States."10 While "the dominant motif of the Warren Court is an assault on the South as a unique legal and cultural region,"11 its nationalizing agenda was aimed at illiberal practices and beliefs wherever they occurred. These ranged from malapportioned state legislatures to book and movie censorship to prayer in schools to repressive police practices. The Warren Court worked alongside the other branches to bring Kennedy-Johnson liberalism to America. …