The Warren Court's Missed Opportunities in Substantive Criminal Law (original) (raw)
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The Judicial Restraint of the Warren Court (and Why it Matters)
SSRN Electronic Journal, 2007
REBECCA E. ZIETLOW* "[W]here [Congress] keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere."' In politics and in academia, the Warren Court is virtually synonymous with the term 'judicial activism." The many "activist" rulings of the Warren Court expanding individual rights and the jurisdiction of federal courts are the paradigmatic example of courts protecting the rights of minorities. Yet this Article points out another side of the Warren Court's jurisprudence-its restraint towards congressional power, especially when Congress used that power to protect the rights of minorities in our society. It considers the role of a particular set of rights: rights of belongingthose rights that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community. In a series of landmark decisions articulating its deference to Congress, the Warren Court invited and encouraged popular constitutionalism, enabling members of Congress to use their own judgment in defining and protecting rights of belonging. The Article argues that the strongest contribution that the Warren Court made to expanding equality rights was not its judicial activism in protecting those rights, but its restraint in allowing Congress to protect those rights.
2019
challenging "whether the Warren Court's criminal procedure decisions were truly the bastion of countermajoritarian decision making they have been made out to be"); Eric J. Miller, The Warren Court's Regulatory Revolution in Criminal Procedure, 43 CONN. L. REV. 1, 3 (2010) (challenging the "standard story" that the Court was "motivated by an emphasis on political, social, and economic equality for racial minorities" until it became "[f]rightened. .. by the popular backlash against high crime rates"). 4.
A Subversive Strand of the Warren Court
2002
The choice between "de jure" and "de facto" standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense that the question is faced regardless of the particular right or norm at issue (although it is not really true that the choice between these methodologies would have no influence on the choice of rights or norms to apply). A de Jure approach limits the imposition of constitutional norms to cases in which the state has affirmatively acted to help create a particular state of affairs, whether through explicit legislation or by some other affirmative mode of exercising state power. A de facto approach focuses on a given empirical state of social affairs and, in its strongest form, imposes constitutional norms whenever a review of the social order discloses that constitutional rights or nouns are not extant, regardless of the source of ...
The Warren Court and Congress: Both Necessary - Neither Sufficient
When we hear the words ‘Warren Court’ and ‘Congress’ most people silently add the word versus – the Warren Court versus Congress. And not without cause. From the Court’s rulings in internal security cases in June 1957 through the last majority opinion delivered by Earl Warren in Powell v. McCormack in June, 1969 the Warren Court often was pitted against a Congress that chafed at judicial intervention and assertions of judicial authority. But in some of the Warren era’s most important rulings, we really ought to insert the words ‘together with’ – the Warren Court together with Congress. This was particularly true of civil rights: Voting rights did not come from the Marble Temple alone; desegregation of public accommodations required an Act of Congress together with court rulings; and inroads against segregated housing only happened when Congress acted together with the court. The words together with are carefully chosen: the Court was not collaborating with Congress. In some instances one institution built on the work of the other while in other cases one institution shaped, framed, influenced and constrained the other. Their medium of communication was constitutional and statutory interpretation and precedent – both legislative and judicial. This paper examines three very different ways in which the words ‘together with’ fit between Warren Court and Congress in an effort not only to learn more about an important chapter in American political history, but also to contribute to a broader theory of the cross-institutional role and function of precedent. Call these (1) The Strange Case of Judicial Precedent as Sword – and Shield; (2) The Case of the Congressional Exploitation of Judicial Precedent – and its limits; and (3) The Case of the Judicial Exploitation of Legislative Precedent.
Procedural Assault on the Warren Legacy: A Study in Repeal by Indirection, The
Hofstra L. Rev., 1976
A printed copy of Conkling's argument has been preserved in the Hopkins Railroad Collection of Stanford University, entitled San Mateo Case, Arguments and Decision. The classic refutation of the Conkling position is Graham, The "Conspiracy Theory" of the Fourteenth Amendment, 47 YALE L.J. 371 (1937). 5. 169 U.S. 466 (1898). 6. Id. at 516. Although the corporate bar's struggle for access to the lower federal courts was tentatively won in Smyth, the jurisdictional struggle continued in the cele. brated cases of Ex parte Young, 209 U.S. 123 (1908), and Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913), resulting in total victory for corporate access to the lower federal courts to enforce substantive due process. 7. Graham, supra note 4, at 372. 8. 198 U.S. 45 (1905) (statutory limit on maximum number of hours of employment invalidated as a violation of freedom of contract). 9. 261 U.S. 525 (1923) (striking down a federal minimum wage law for women). 10. A summary of the laws invalidated by the federal judiciary during the era of substantive due process is set forth in THE CONSTrrUTON OF THE UNITED STATES 1431-85 (Gov't Printing Office 1964). 11. Meyer v. Nebraska, 262 U.S. 390 (1923), for example, a classic substantive due process case, is the forerunner of much of the evolving law of the right to individual privacy.
The Warren Court and the Concept of a Right
1999
The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid-1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not just the most liberal Supreme Court in American history, but arguably the only liberal Supreme Court in American history. Is there any reason, beyond a nostalgia that is by no means universally shared, to continue discussing the Warren Court? It seems that nearly everyone now agrees that judicial activism is pernicious and judicial restraint desirable. And everyone seems to believe that this opinion, if true, requires one to discard the Warren Court's jurisprudence. I will argue that these conclusions are mistaken, for the hackneyed contrast between activism and restraint misses the true significance of the Warren Court, the real reason that its jurisprudence merits continued discussion. That significance lies not in the Warren Court's transformation of the judicial role, but in its transformation of the concept of a legal right. The problem with focusing on judicial role is this: "Judicial activism" and "judicial restraint" originated as obscure lawyers' terms for concepts that had a fairly precise meaning, or rather, a handful of fairly precise meanings. To Holmes's law partner and Brandeis's teacher James Bradley Thayer, who wrote the first major article on the subject, the doc-"
2021
On the final day of the 1982 Term, the United States Supreme Court issued its opinion in Michigan v. Long.' Although primarily a fourth amendment decision, 2 Long's true significance lies in its establishment of a new test for determining when a state decision rests on independent and adequate state grounds, thus precluding federal review. The Court held that when such a decision either appears to rest on or be "interwoven" with federal law, and when the independence or adequacy of a state ground is not clear from the opinion, the Court will presume that the federal grounds were primarily relied upon. 3 This new test undoubtedly will increase the number of prosecution appeals from state court criminal decisions that the Supreme Court will review. Consequently, it is important to ask why this Court, which has continually bemoaned its swollen docket, 4 would voluntarily seek to expand the number of cases available for its review. The most intriguing portion of the Long case was the dissent filed by Justice Stevens.? Repeating a theme he had sounded in previous opin