The Common Law Genius of the Warren Court

Abstract The Warren Court's most important decisions--on school segregation, reapportionment, free speech, and criminal procedure--are firmly entrenched in the law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a common law court. The decisions in Brown v. Board of Education, (1) Gideon v. Wainwright, (2) Miranda v. Arizona, (3) and even in the reapportionment cases all can be justified as common law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the common law, such as Cardozo's decision in MacPherson v. Buick Motor Co. (4) In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a common law system: that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before. TABLE OF CONTENTS I. THE COMMON LAW APPROACH A. Common Law Innovation in Action: MacPherson v. Buick Motor Co B. The Premises of the Common Law II. THE WARREN COURT A. Brown v. Board of Education 1. What Justifies Brown? 2. Brown and the Common Law Approach B. Gideon v. Wainwright C. Miranda v. Arizona D. The Reapportionment Cases CONCLUSION It is hard to overstate the significance of the Warren Court to American legal culture. The Warren Court's decisions--most notably, but not exclusively, Brown v. Board of Education, (5) which declared public school segregation unconstitutional--changed the way people thought about courts in general and the Supreme Court in particular. In the first half of the twentieth century, courts were, if anything, perceived as hostile to efforts to bring about equality and social justice; (6) after the Warren Court, the courts came to be seen by many as the natural place for people to turn to achieve these objectives. (7) The influence of the Warren Court has, moreover, spread beyond the United States. The image of courts as the institution with a special responsibility for the disadvantaged has taken root elsewhere in the world, and the paradigm is the Warren Court. (8) Despite this record of success, though, the notion still lingers that the Warren Court was essentially lawless. Morally visionary, yes, at least on racial segregation; (9) politically astute, perhaps, in sensing the direction in which the nation was moving at the time; (10) but utterly deficient as a matter of legal craft. This view is held across the spectrum, even by people who are broadly in agreement with the Warren Court's objectives. Mainstream legal scholars during the Warren Court years--including many who were politically inclined to approve of the outcomes of the Warren Court decisions--relentlessly attacked the Warren Court in these terms. Alexander Bickel, probably the most widely respected constitutional scholar of his time, accused "the Supreme Court headed ... by Earl Warren" of having engaged in an "assault upon the legal order." (11) Philip Kurland's Foreword to the Supreme Court issue of the Harvard Law Review in 1964 was overtly contemptuous of the Justices' performance as lawyers; (12) Kurland later derided Brown v. Board of Education as "the self-licensing of the Court to recreate the equal protection clause in its own image . …