What Would the Warren Court Do?

More Thoughts on the "Conservative Warren Court"

To what extent does the present Court track or deviate from the substantive legal ideology of the Warren Court? That is a harder question to answer than one might think, in part because the two Courts are of two different eras. The conservativism of today’s Court is in significant ways compatible or overlapping with the liberalism of the mid-century Court.

I have a new draft paper that explores this set of questions. The piece (“What is the Business of the Warren Court?”) is in dialogue with a characteristically astute essay by Professor Pamela Karlan that in turn reacts to my Foreword for the Harvard Law Review. Following Karlan, the new paper focuses on issues of race, democracy, and judicial strategy (as opposed to, say, religion).

Here is the abstract:

Today's Supreme Court is conservative whereas the Warren Court was liberal. Yet the substantive principles underlying these two Courts are more compatible than one might think. Conservativism and liberalism are dynamic terms whose meaning changes over time, and the two Courts faced different questions during their respective eras. Abstract principles of racial justice and pro-majoritarian democracy cannot sharply differentiate these Courts, and both Courts also made extensive use of the impassive virtues. Central examples include affirmative action and majority-minority districting. Partly for these reasons, the Warren Court is fading from our collective memory, with the present Court taking its place. The present essay continues a conversation in print with Professor Pamela Karlan and complements my Foreword for the Harvard Law Review, entitled "To a Conservative Warren Court.”

This is an in-progress draft, so comments are especially welcome.