Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Was the Warren Court Unusual in American History?

By Jack M. Balkin

Following up on Mark Graber's most recent post on the Supreme Court, consider why we might expect that the Supreme Court will not in fact produce principled results significantly superior to those produced by the national political process. One reason, famously suggested by Yale political scientist Robert Dahl, is that the U.S. Supreme Court tends, over time, to cooperate with the views of the dominant national political coalition. It does this by ratifying and legitimating most of the results of the national political process, by policing state and local governments so that they stay roughly in line with the views of national political elites, and (as Mark himself has pointed out) by acting as a political backstop to resolve controversies that national politicians would rather not have to take responsibility for.

The Supreme Court does tend to slow down rapid change when there is a shift in political regimes (and accompanying constitutional values), but eventually it goes along because new Justices appointed by the dominant national coalition replace older ones.

From this perspective, the Supreme Court is likely to be a conservative institution, conservative not necessarily in the sense of politically conservative but in the sense of maintaining constitutional values over extended periods of time and not straying too far from the center of political power in the country.

This also explains why during the height of the Warren Court period from 1962 to 1969, the Supreme Court made so many liberal decisions. The dominant forces in the national political process were also quite liberal during these years, and Lyndon Johnson, running as a liberal, won a landslide victory in 1964. The Warren Court struck down comparatively few Congressional laws during this period: indeed, it went out of its way to uphold Congress's important civil rights acts in 1964 and 1965. The Warren Court mostly exercised judicial review over state governments, particularly in the South, reforming the criminal justice system, secularizing the public schools, outlawing malapportionment in state legislatures, and protecting black civil rights. After the 1968 election, four Nixon appointees began to shift the Court to the right (on some issues but not others), reflecting changes occurring in national politics.

In this respect the Warren Court is not an outlier. It was a relatively faithful reflection of its times-- the high water mark of the liberal political consensus in America, a consensus that was shattered with the 1968 election.

The historical memory of the Warren Court as a particularly activist court at odds with the nation's values is largely a myth. This myth is a form of winner's history: it reflects the eventual success of the New Right (as well as regional majorities in the South) in changing understandings of American politics and the American Constitution. Attacks on the federal judiciary by conservative social movements, combined with a series of cultural, social and racial issues, helped conservatives win political power in the decades that followed. This, in turn, helped produce a federal judiciary that was more conservative on many issues but that also, like the Warren Court itself, reflected the politics of its own time.

Full post as published by Balkinization on May 31, 2008 (boomark / email).