The Law: The Legacy of the Warren Court

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Embroiled in Controversy. The three decisions exemplified the court's insistence that the states observe strictly the Constitution's guarantees of fair procedure. They also typified what University of Chicago Law Professor Harry Kalven Jr. calls the Warren court's "appetite for action" and its penchant for "taking on tough social questions where the pressures were very high." That penchant has, of course, kept Warren and his associates embroiled in constant controversy. The court has been accused of everything from coddling criminals and handcuffing the police to approving hard-core pornography and banishing God from the public schools.

No matter what direction the court takes under Chief Justice Burger, nothing is likely to erase the dramatic record written between 1953 and 1969. Not since the days of John Marshall, whose term as Chief Justice ran more than twice as long as Warren's (1801-35), have the Justices broken more new ground in the law. Serving as they did during a period of the greatest social upheaval in the U.S. since the Civil War and the Depression, the Justices refused to label many issues "moot" or "unripe," or to invoke any of the other legal techniques that would have enabled them to avoid controversy.

The result was what New York University Law Professor Norman Dorsen calls "a fundamental reorientation of the court's role." The Warren court, says Dorsen, "moved dramatically from deference to the prerogatives of the other two branches of the Federal Government and of the states to aggressive protection of the rights of the individual." Leon Friedman, co-editor of a forthcoming history entitled The Justices of the U.S. Supreme Court, 1789-1969, describes the change in another way: "The magic thing that the court has done is to have initiated a new moral sense in the country, a direction that the legislative and executive branches of government had failed to take. The Supreme Court used to be the anchor of the ship of state. Now it functions as the rudder."

Hearts and Minds. Earl Warren was recently asked what he considered his most crucial decisions. Each of the cases that he singled out represented one of the three broad fields in which his court wrought the greatest change: legislative apportionment, civil rights, and the rights of criminal defendants. The three cases:

1) Baker v. Carr (1962), which established that federal courts may intervene to protect the rights of a voter if state legislators do not act to correct malapportionment in voting districts. Proclaiming that for one man's vote to carry more weight than another's is a denial of equal protection of the law, the court ruled in subsequent cases that voting districts of unequal population were illegal for Congress (Wesberry v. Sanders, 1964), and for legislative bodies in the states (Reynolds v. Sims, 1964), and in local government (Avery v. Midland County, 1968) as well.

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