All the Supreme Court Really Needs to Know It Learned from the Warren Court

Abstract

It is accepted wisdom among constitutional law scholars that the Supreme Court is now considerably more conservative than it was during the tenure of Chief Justice Earl Warren. In this Article, I hope to suggest that the conventional wisdom is at least partly wrong. In Part I, I suggest that many of the current Court's so-called conservative cases and doctrines are direct descendants of Warren Court cases and doctrines. Although my attribution of similarity is new, the description of the cases and doctrines themselves is entirely unoriginal. Indeed, the history of the two sets of cases-of the Warren Court and the current Court-could be drawn from almost any basic textbook in constitutional law. The interesting question, then, is why the obvious parallels have escaped most observers. In Part II, I explore why we cling to the myth that the current Court is much more conservative than its predecessor. I begin with two definitional caveats. To canvas the entire scope of the Warren Court--or of the current Court, for that matter--would be a massive task. Instead, I will limit this Article to a few salient areas of law. The Warren Court is known primarily for its championship of individual liberty and racial equality. Even much of the vaunted "Due Process Revolution"--enlarging the rights of both criminal defendants and civil litigants--found its genesis in racial equality.1 The Equal Protection Clause was the centerpiece of the Court's equality jurisprudence. The paradigmatic protection of individual liberty is the Free Speech Clause of the First Amendment, which first received its most expansive interpretations at the hands of the Warren Court. Thus, I will focus on the jurisprudence of those two clauses.