The Law: The Legacy of the Warren Court

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Not Good Enough. Under intensifying attack in recent years, the Warren court continued, nevertheless, to enlarge, clarify and insist upon its previous rulings. To hasten school desegregation in one Alabama county this year, the court found it necessary to uphold a racial quota requiring each school to have at least one black for every five white teachers and staff members. The court also proclaimed during the recent session that approximate equality in voting districts was not good enough, and that the states must strive to achieve absolute equality in the population of each district.

To some legal scholars, the most notable characteristic of the Warren court —and one that may distinguish it from Burger's—was its decision to decide. Perhaps no case better illustrates the difference than that of barred Congressman Adam Clayton Powell, in which the War, ren court reversed a decision by Burger's former court. As a member of the U.S. Court of Appeals for the District of Columbia, Burger had written in the Powell case: "Courts encounter some problems for which they can supply no solution." Later he remarked: "What if we ordered the House to seat Powell and the House refused? Could we have sent an army up to Capitol Hill to enforce the order?" To Warren, that was beside the point. "Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch," he said in the Powell case. "The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding constitutional responsibility."

This was the essence of Warren's activist philosophy. In a speech several weeks ago, he said: "I have heard a great many people say to me, 'Well, I agree with your opinions on these civil rights, all right, but don't you think you are going too fast?' Of course, the answer to that is, 'We haven't anything to say about how fast we go.' We go with the cases that come to us; and when they come to us with a question of human liberties involved in them, we either hear them and decide them, or we let them go and sweep them under the rug, only to leave them for future generations."

Balance of Votes. While Burger has expressed his dissatisfaction over the court's doctrines on criminal procedure, he is not expected to try to dismantle much of the court's work in this or in any other field. Even if the Justice appointed to the seat vacated by Abe Fortas proves critical of the Warren court's decisions, there will still not be enough votes to alter the court's direction significantly. In Brown and Gideon, the court spoke with a unanimous voice. Just one Justice dissented from the ruling that ordered an end to prayers and Bible reading in the public schools and the one that upheld the one-man, one-vote formula in Reynolds.

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