Sunday, January 02, 2011

The Warren Court: A Legal Revolution

I am a coauthor of an updated version of the college American history textbook, currently titled "American Dreams & Reality: A Retelling of the American Story." Below I discuss the drama changes ushered in by the Supreme Court under Chief Justice Earl Warren.

During the 1960s, civil rights marchers sought to revolutionize American race relations as they assaulted the citadels of segregation. President Kennedy dramatically energized the office of the presidency, transforming it into the dynamic center of the federal government after what he saw as the long eight-year slumber of the Eisenhower years. Scientists, meanwhile, shattered humanity’s bondage to planet Earth through the space program. Yet, ironically, one of the most revolutionary forces in the decade was a collection of nine mostly elderly, wealthy white men: the United States Supreme Court as led by Chief Justice Earl Warren.

President Dwight D. Eisenhower appointed Warren, the Republican governor of California and the GOP’s nominee for vice president in 1948, as chief justice in 1953. Eisenhower saw Warren as a middle-of-the-road personality like himself. Warren was seen as a man who would preside over a cautious court. In John Gunther’s book, "Inside USA," the author characterized Warren as a man who “will never set the world on fire, or even make it smoke.” While some justices initially dismissed Warren as a politician rather than a genuine legal mind, the new chief justice’s mellow, humble personality allowed him to earn respect and warm regard from his colleagues. Warren proved talented in winning over justices to his legal viewpoints and in presenting to the world an image of a united Supreme Court in even the most controversial cases. The year after his appointment, Warren provided the leadership that led to the historic "Brown v. Board of Education" school desegregation decision.

Warren had missed the initial arguments in the case but was on hand for the second round of arguments. After that session, the justices discovered that a 5-4 majority favored overturning the "Plessy v. Ferguson" “separate but equal” decision. Warren, however, said that the authority of such an important decision would be undermined if the court remained almost evenly split. He insisted on a unanimous decision and gradually persuaded the remaining four justices that segregation could be justified only on the assumption that African Americans were intellectually inferior. Through a slow process, Warren won over the entire court. Warren himself delivered the court’s unanimous decision.

"Brown" was just the beginning of a long, remarkable and controversial string of decisions. Under Warren, a previously conservative court shifted sharply in a liberal direction. Eisenhower later said that appointing Warren as chief justice seat was "the biggest damned-fool mistake I ever made." In subsequent years, the court upheld (in the 1962 "Baker v. Carr" decision and the 1964 "Reynolds v. Sims" decision) the principle of “one man, one vote.” The case overturned the Texas practice of allowing several members of the state legislature to be elected “at large” in counties with two or more state House seats. In these “super districts,” lines were drawn to intentionally dilute the voting strength of African Americans. The court ruled that members of state legislatures had to be elected from districts with approximately the same number of voters, which inevitably increased urban and minority representation in states like Texas. The Supreme Court also weighed in on the side of the Civil Rights Movement in the 1967 "Loving v. Virginia" case, in which it overturned state laws banning interracial marriage.

The Warren Court outraged social conservatives with a pair of 1963 rulings regarding school prayer. In 1960, after discovering that her son William was compelled to participate in daily group prayers at his junior high school, outspoken atheist Madalyn Murray brought a lawsuit against the Baltimore school district. A Maryland district court and the state appellate court rejected her arguments that the school prayers violated the United States Constitution’s ban on government “establishment” of religion. Murray’s appeals eventually reached the Supreme Court. The court combined "Murray v. Curlet"t with the similar "Abington School District v. Schempp" case. Murray argued that the Constitution provided an “unalienable right to freedom from religion as well as freedom of religion.” The court, in an 8-1 opinion, ruled that mandated school prayers indeed violated the Constitution’s establishment clause.

Later known after a second marriage as Madalyn Murray O’Hair, she filed an unsuccessful suit to get the phrase “In God We Trust” removed from American currency. Moving to Texas, O’Hair founded American Atheists and became the country’s most famous non-believer and, according to a 1964 issue of "Time Magazine," “the most hated woman in America.”

To social conservatives it appeared that the Warren Court had declared war on Christian values while to civil libertarians, the rulings of the highest court brought the country closer to the realization of the promise of the U.S. Constitution’s First Amendment guarantees of free speech. In a series of rulings from 1957 to 1987, a sometime divided court chipped away at state anti-pornography laws and greatly expanded the permissible sexual content of books, magazine, and movies. In the 1957 "Roth v. United States" case, a 6-3 majority overturned the obscenity conviction of Samuel Roth, who sold a publication called “American Aphrodite” which included nude photos of women.

In the majority opinion, the Court ruled that “sex and obscenity are not synonymous” and that only material which appeals to “prurient interests” could be considered a violation of federal anti-pornography laws. In its 1966 "Memoirs v. Massachusetts" case, the justices overturned lower court rulings that banning the 18th-century book "Memoirs of a Woman of Pleasure" (also known as "Fanny Hill") based on its alleged obscenity. The majority deemed that a “book cannot be proscribed unless it is found to be utterly without redeeming social value.” In the following years, the court routinely dismissed attempts to ban books, magazines, photos and films as obscene.

Sexual freedoms also expanded under the Warren Court. In the1965 case "Estelle v. Griswold," the Supreme Court ruled unconstitutional a Connecticut law that outlawed the use of contraceptives. By a 7-2 vote, the court ruled that the Connecticut statute violated the right of privacy indirectly provided by the Constitution through the Ninth and the 14th amendments and the penumbras of other rights provided under the national charter. The court’s reasoning would later provide the basis for the "Roe v. Wade" decision that legalized abortion in the first two trimesters of pregnancy. Meanwhile, several states had repealed laws deeming publications providing information on contraception as obscene. Meanwhile, in 1960 the federal Food and Drug Administration approved the marketing of the birth control pill, an event many feminists hailed as a moment of liberation. With the pill, many argued, adults could decide when to have children and how many, and women could be freed to have an active sex life and pursue a career.

The Warrant Court also outraged conservatives by greatly expanding the rights of criminal defendants with its 1963 "Gideon v. Wainwright" and 1966 "Miranda v. Arizona" decisions. In "Gideon," the court held that under the Sixth Amendment to the Constitution, which guarantees the right of those accused of a crime to have “the assistance of counsel,” impoverished criminal defendants have to be provided lawyers by the court if they cannot hire one on their own. In the "Miranda" decision, the Supreme Court ruled that any person interrogated while in police custody had to be informed of their rights, including the right to not speak without a lawyer present.

“In case after case,” legal scholar Lawrence M. Friedman wrote, “the Supreme Court [under Warren] took the side of the prisoner, requiring strict adherence to the principles of fair search, arrest and trial – principles which, it sometimes seemed, the judges created themselves. These were dramatic cases. On the one side, the state; on the other, some broken figure of a man, shuffling into court, a drunk, a gambler, a dope addict, a four-time loser, a petty thief, a creature at the bottom of the ladder. The Warren Court sided with this underdog (and his lawyers) often enough, and forcefully enough, to draw cries of pain from the temples of law and order.”


Michael Phillips has authored the following:

White Metropolis: Race, Ethnicity and Religion in Dallas, Texas, 1841-2001 (Austin:  University of Texas Press, 2006)

(with Patrick L. Cox) The House Will Come to Order: How the Texas Speaker Became a Power in State and National Politics. (Austin: University of Texas Press, 2010)

“Why Is Big Tex Still a White Cowboy? Race, Gender, and the ‘Other Texans’” in Walter Buenger and Arnoldo de León, eds., Beyond Texas Through Time: Breaking Away From Past Interpretations (College Station: Texas A&M Press, 2011)

“The Current is Stronger’: Images of Racial Oppression and Resistance in North Texas Black Art During the 1920s and 1930s ”  in Bruce A. Glasrud and Cary D. Wintz, eds., The Harlem Renaissance in the West: The New Negroes’ Western Experience (New York: Routledge, Taylor and Francis Group, 2011)

“Dallas, 1989-2011,” in Richardson Dilworth, ed. Cities in American Political History (Washington, D.C.: CQ Press, 2011)

(With John Anthony Moretta, Keith J. Volonto, Austin Allen, Doug Cantrell and Norwood Andrews), Keith J. Volonto and Michael Phillips. eds., The American Challenge: A New History of the United States, Volume I.   (Wheaton, Il.: Abigail Press, 2012).

(With John Anthony Moretta and Keith J. Volanto), Keith J. Volonto and Michael Phillips, eds., The American Challenge: A New History of the United States, Volume II. (Wheaton, Il.: Abigail Press, 2012).

(With John Anthony Moretta and Carl J. Luna), Imperial Presidents: The Rise of Executive Power from Roosevelt to Obama  (Wheaton, Il.: Abigail Press, 2013). 

“Texan by Color: The Racialization of the Lone Star State,” in David Cullen and Kyle Wilkison, eds., The Radical Origins of the Texas Right (College Station: University of Texas Press, 2013).

He is currently collaborating, with longtime journalist Betsy Friauf, on a history of African American culture, politics and black intellectuals in the Lone Star State called God Carved in Night: Black Intellectuals in Texas and the World They Made.

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