The Law: The Legacy of the Warren Court

In the high, marbled central chamber of the Supreme Court, Earl Warren sat last week for the last time as the 14th Chief Justice of the United States. It was an occasion of ceremony and speechmaking. Richard Nixon was there to watch Warren Earl Burger, the man he had named as Warren’s successor, take his oath of office. But the President put in an appearance for another reason: to offer symbolic support to an institution that he himself had attacked so harshly during last year’s election campaign. Emphasizing the court’s importance as an instrument of “continuity with change,” Nixon praised Warren for having personified “fairness, integrity and dignity” during his 16 years as Chief Justice. In his valedictory reply, delivered with an occasional quaver, Warren said of the court: “We serve only the public interest as we see it, guided only by the Constitution and our own consciences.”

Decision Days. Until the very last, the court that Warren led demonstrated its overriding concern with the rights of the individual—even though many critics complained that in some instances it had already gone too far. Just minutes before Burger’s swearing-in, it handed down three decisions that further protect the rights of criminal defendants: > In a pair of cases from Alabama and North Carolina, the court ruled that a man who gets a criminal conviction set aside but is convicted a second time on the same charge, may not be given a longer sentence without any justification. Bad conduct after the first trial may be sufficient reason for a harsher sentence, the court said, but a man may not be punished merely for exercising his right of appeal. By a 7-to-l majority, the court ruled that unless the trial record adequately explains the reason for the longer term, the defendant has been deprived of due process.

> In a Maryland case, the court declared by a 6-to-2 vote that the Fifth Amendment guarantee against double jeopardy applies to the states. In so ruling, the court upheld John Dalmer Benton, who had been convicted of burglary and acquitted of a larceny charge at one trial. Benton had sought a new trial on the burglary charge, but instead was retried—and convicted—on both charges. > In a California decision, the I. most important of the three, the court reversed the conviction of a numismatist named Ted Chimel, who was sentenced to prison in 1966 for stealing rare coins. When police arrested Chimel at his home in Santa Ana, Calif., they examined the premises without a search warrant and found some of the stolen coins. Such searches are common. Many police departments, seeking to avoid the necessity of justifying a search warrant before a judge, wait to arrest a suspect at his home, then claim that the search is “incident to a valid arrest” and therefore legal. A 6-to-2 majority of the Justices disagreed. Police, they said, may search an arrested man’s person and, to prevent him from destroying evidence, “the area within his reach.” But if broader searches were permitted without a court warrant, they concluded, the Fourth Amendment privilege against unreasonable search would “approach the evaporation point.”

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.

2) Brown v. Board of Education (1954), which outlawed racial segregation in the public schools. Separate schools for Negroes were “inherently unequal,” ruled the court, because the system generates feelings of inferiority in the black children “that may affect their hearts and minds in a way unlikely ever to be undone.” Brown helped to prepare public opinion for a long series of civil rights bills and later court rulings that enforced laws against discrimination in voting, public accommodations and housing.

3) Gideon v. Wainwright (1963), which declared that a man accused of a felony has a right to free counsel if he cannot afford a lawyer. Gideon was not the first of the court’s landmark decisions in criminal law. Mapp v. Ohio (1961) had announced the important principle that evidence seized in an illegal search may not be introduced at a man’s trial. But Gideon was the first sign of the court’s concern for protecting accused criminals who may not be able to defend themselves. It was followed by Escobedo v. Illinois (1964), which held that a suspect may not be prevented from seeing his lawyer during a police interrogation. The most controversial decision of all was Miranda v. Arizona (1966), which called on the police to warn a suspect of his rights to remain silent and to have a lawyer before being questioned. Otherwise, said the court, any confession taken from the suspect may not be introduced at his trial.

Though there is no evidence that Miranda occasioned the release of large numbers of criminals, the decision did turn against the court a large group of Americans who are concerned about crime rates. A poll published by the Gallup organization last month disclosed that a majority in the nation not only opposes the Miranda decision but also the 1963 ruling that barred prayers and Bible reading in public schools, and a 1965 decision declaring that compulsory registration of Communist Party members was unconstitutional.

Sphere of Iron. Appointed by President Eisenhower in 1953 after three terms as Governor of California, Earl Warren joined a court that was dominated by two more penetrating thinkers than he, Hugo Black and Felix Frankfurter. In his initial years, says Columbia Government Professor Alan Westin, the new Chief Justice was “a large, powerful sphere of iron drawn between two magnetic potes.” Initially, he leaned toward Frankfurter, the ex-Harvard professor who argued brilliantly for a more restrained role for the court. But eventually Warren, more a man of action than reflection, found Black’s judicial activism preferable.

Warren made an imprint on the court largely because of the strong moral direction that he imparted to it. A man of stern humanitarian ideals, he loomed on the bench as a kind of Old Testament lawgiver, who approached issues with a disarming simplicity. “You’d see this paterfamilias insisting on the justice of the black man’s cause,” noted Michael Meltsner, a young lawyer for the N.A.A.C.P. Legal Defense Fund, who has argued before the Warren court. “Almost every question was directed toward justice, not technicalities.”

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.

In a few of the criminal cases, one or two votes could possibly change the balance. Miranda, for example, was decided by a 5-to-4 margin. It may be that Burger and Justices of similar temperament will in the future give the police the benefit of the doubt in resolving close cases based on Miranda. But like other Justices, Burger will be deterred by the doctrine of stare decisis (respect for precedent) from abandoning rules that have been law for three years now. Even so, under Burger’s leadership, the court is more likely to return to the role of anchoring the ship of state than to try steering it into new waters.