Why another book on the Warren Court? Is it possible to say anything about the Warren Court that has not already been said at
least three times? Have scholars working with recently opened JusticesÆ papers discovered new information of major importance
about the Warren Court? Are new interpretations, theoretical justifications, and fresh insights possible? Such questions nagged at
me as I began to read Bernard SchwartzÆs THE WARREN COURT: A RETROSPECTIVE.
The volume is based on papers that were presented in 1994 at a conference at the University of Tulsa College of Law. Professor
Schwartz gathered an impressive array of lawyers, judges, legal scholars, and journalists for the conference and for this
volumeùmany of their names are well-known to readers of the LAW AND POLITICS BOOK REVIEW. Retired Justice
William J. Brennan, Jr., for example, contributed a chapter, as did Yale Kamisar, Norman Dorsen, Richard A. Epstein, Philip B.
Kurland, Ronald D. Rotunda, West VirginiaÆs Richard Neely, James Simon, David Halberstam, and Anthony Lewis. The sole
Political Scientist among the contributors is Pulitzer Prize winner, David Garrow. Bernard Schwartz is perhaps best known as the
author of the important judicial biography of Earl Warren, SUPER CHIEF, and INSIDE THE WARREN COURT, both of which
were published in 1983. An extremely prolific scholar, Schwartz has written or edited at least thirty-one books (three in 1996); at
least five of those concern some aspect of the Warren Court.
The volume begins with three introductory essays. James B. OÆHara provides an overview of the volume. Justice Brennan offers
"A Personal Remembrance" in which he recalls his early days on the Court, including his introduction to the other Justices in a
darkened room where they were all watching the World Series. In "Earl Warren and His America," David Halberstam describes
America in 1953 as a time when the American dream seemed to have become reality for many ordinary people, although not for
African Americans.
The remainder of the volume is organized into three sections. First "The Constitutional Corpus," which includes seven essays,
examines the substantive contributions of the Warren Court in several key areas of constitutional law. The second section, "The
Justices," includes essays on Brennan, Douglas, Black, Frankfurter, Harlan, and Warren. Finally, in "A Broader Perspective," eight
essays address the Warren CourtÆs impact on the political and legal system.
As I tackled the first section, which treats the caselaw, my initial doubt about what new light might be shed on the Warren CourtÆs
decisions persisted. I found that the chapters on race, freedom of speech and the press, the religious clauses, and criminal justice
covered familiar ground. Indeed, virtually all of the cases are well-known to those of us who teach Civil Liberties to
undergraduates. Although the material itself is so familiar as to be uncontroversial and unremarkable, several of the chapters
provide reviews of the cases in key areas that can serve as useful overviews. The best of these essays remind the reader how
important the decisions of the Warren Court were and that it is impossible to understand the Warren Court without reference to its
successors. For example, Yale KamisarÆs "The Warren Court and Criminal Justice," provides an in-depth treatment of the cases
concerning the rights of the accused. He goes further, however, to underscore the importance not only of MAPP v OHIO and
MIRANDA v ARIZONA themselves but also the changes crafted by the Burger and Rehnquist Courts. Unfortunately, not all of
the essays are as strong as KamisarÆs. For example, Nadine Strossen, who examines some of the decisions of the Warren Court
in the area of freedom of speech, takes the opportunity not only to address the current debate regarding the permissibility of
regulations on hate speech but also to articulate her position as an opponent of such regulations. Strossen not only fails to consider
how very different was the era of the Civil Rights Movement from the 1990s but her advocacy seriously detracts from her
analysis.
Interesting (although by no means does it originate with this volume) questions that several of the contributors to the first section
raise are whether there were flaws in the reasoning of the Warren CourtÆs most important decisions that left them open to
criticism, limited their impact, and made it easier for the Burger and Rehnquist Court to undercut them. I was disappointed that
although such arguments are advanced a number of times throughout the volume, they are not supported or developed in any
systematic fashion.
The section that examines the individual Justices of the Warren Court also covers familiar ground. Bernard Schwartz, for example,
focuses on Hugo BlackÆs views on the First Amendment and incorporation, his disagreements with Frankfurter, and his opposition
to the CourtÆs protection of rights not based on explicit provisions in the text of the Constitution. In one of the least useful essays in
the volume, Philip B. Kurland, takes the opportunity to laud Felix Frankfurter and contends that the Justice has received less
appreciation and respect than he deserves because his judicial restraint condoned results that adherents of the "The Liberal Creed"
found distasteful (page 228-9). Kurland laments that most of FrankfurterÆs colleagues were concerned with reaching the right
results while the Justice correctly adhered to the doctrine that "the ends justified the means was pernicious." (page 229)
By far the strongest contribution to the second section of the volume is Bernard SchwartzÆs essay on Earl Warren. Schwartz
advances at least two major arguments about the former Chief Justice. First, WarrenÆs approach to law was ethical rather than
analytical. He saw his job as seeing that the right side prevailed in a given case. Second, drawing on a variety of sources, including
his own previous work on Warren and Tom C. ClarkÆs papers, Schwartz contends that the Chief Justice played a crucial role in
several of the CourtÆs key decisions, including BROWN v BOARD OF EDUCATION, BAKER v CARR, MAPP v OHIO, and
MIRANDA v ARIZONA. Thus, it was, indeed, WarrenÆs Court, not BlackÆs or BrennanÆs as some scholars have argued.
The other essays in the second section are also noteworthy. While they cannot avoid covering that well-traveled ground, they
nevertheless offer different angles and refreshing insights on the Justices of the Warren Court. Norman Dorsen, who served as
law clerk to John Marshall Harlan, explains his JusticeÆs decision making in terms of a commitment to federalism, "proceduralism"
(which includes issues of when judicial power should be exercised) and an overarching determination to keep things in balance.
HarlanÆs overarching concern for maintaining the smooth functioning of institutions, according to Dorsen, rendered consistent his
votes against the incorporation of the Bill of Rights and reapportionment, on the one hand, with his support for desegregation, on
the other. Richard S. Arnold, law clerk to Justice Brennan in 1960-1961, contributed a very brief essay but one that provides some
useful insight into the JusticeÆs decision making. Without rehashing the familiar aspects of the argument about original intent as a
method of interpreting the Constitution, Arnold discusses several of BrennanÆs opinions in order to demonstrate that, although the
Justice departed from the simplistic version of original intent so popular among conservatives in recent years, he cares about
history and used it with respect and prudence: "He respects the letter of the law, but he knows that it is the spirit of the law that
gives it life, and he delights in appealing to history to discover this spirit." (page 209) James F. Simon made use of Justice
BrennanÆs papers in his essay on William O. Douglas. Tyrone Brown, who served as law clerk to Earl Warren in 1967-1968,
provides an excellent conclusion to the section with a moving personal reminiscence in which he describes his own interaction with
the Chief Justice as well as WarrenÆs unceasing pursuit of fairness.
While the quality of the essays in the first two sections of the book are somewhat uneven, this becomes a more serious and more
apparent problem in the third and final section. For example, George E. Bushnell, Jr., President of the American Bar Association,
1994-95, begins the section with "The Warren Court and the Legal Profession." He argues that the accomplishments of the
Warren Court led to the prevailing view the "our justice system [is]a black box into which any social problem can be placed and,
by the mere act of placing, be resolved." (page 285) Although he offers a couple of examples that he asserts, demonstrate that the
legal system has become the first rather than the last resort, Bushnell fails to provide support for his argument or to treat the issue
in a systematic way.
In contrast, Kermit L. Hall does a superb job of summarizing the scholarship on the Warren Court as well as placing the Warren
Court in historical perspective. He refutes the arguments of the critics who argue that the Court engaged in faulty constitutional
reasoning and usurped legislative authority as well as other commentators who minimize the contributions of the Warren Court.
For Hall, the decisions of the Warren Court were transformative, yet they were very much in the stream of history. They
represent an acceptance and extension of the New Deal and were grounded in the "institutional legacy" of the Court itself (page
301). Moreover, the Court was operating within the structure of its own constitutional purposes. Hall concludes that under Earl
Warren, the Court reaffirmed that it was appropriate for it to help shape public policy while it also broke historically from the
pretense that "judges merely judge," through precedent and close reading of the Constitution (page 308).
As noted above, the third section of the volume includes eight essays. A consideration of state constitutional law and
postmodernism in American legal thought appear to be superfluous. Kermit HallÆs contribution and Anthony LewisÆ concluding
tribute would have sufficed nicely.
To return to my initial questions, THE WARREN COURT: A RETROSPECTIVE largely confirmed my doubts about whether
another book on the Warren Court would provide new information, new interpretations, or new theories. The treatments of the
caselaw are familiar and widely available in the casebooks. The Justices of the Warren Court have been examined thoroughly in
judicial biographies and in the law review literature. Likewise, the impact of the Warren Court on the legal and political system has
been considered extensively. The contributors who made use of the JusticesÆ papers did so only minimally and with less than major
results. Still, the volumeùat least selected chapters--is worth reading. The strongest essays offer thoughtful and rigorous analyses
of the CourtÆs decision making and useful insights into the approaches to legal analysis that the Justices adopted. If the volume
fails to add much that is new to what we know about Warren Court, its best chapters, nevertheless, capture what is important and
what we should know, and present that material in a clear and effective manner.
