Vol. 15 No.6 (June 2005), pp.577-580
THE SUPREME COURT UNDER EARL WARREN, 1953-1969, by Michal R. Belknap. Columbia: University of South Carolina Press, 2005. 432pp. Cloth. $49.95. ISBN: 1-57003-563-6.
Reviewed by Richard L. Pacelle, Jr., Department of Political Science, Georgia Southern University. Email email@example.com .
The legacy of the Warren Court has been well-chronicled with dozens of studies bookended by Bernard Schwartz’s (1983) classic SUPER CHIEF and Lucas Powe’s (2000) soon to be classic THE WARREN COURT AND AMERICAN POLITICS. In addition, we have biographies of many of Warren’s colleagues, and more are certain to follow as scholars mine the papers of the justices. Now, Michal Belknap has authored another volume to add to the shelf. It is fair to ask if we need another book about the Warren Court. On the narrowest ground, the book was necessary. The University of South Carolina Press has a series on the stewardships of the various Chief Justices, and this is the seventh volume in that series. On the broader level, the author bears the burden of answering what this book adds to justify its publication. Belknap bases his analysis on more original sources than Schwartz had available, but it is less ambitious in scope than Powe’s study.
Belknap provides, as the good luck adage for a bride recommends, something old, something new, something borrowed, and something blue (the discussion of the obscenity decisions, perhaps). Much of what Belknap writes is well-known, although there are interesting side details that enhance the review: Earl Warren comes to the Court from the political realm and has to shepherd a group of strong-willed justices, some brilliant, others much less so. He grows into the office, but his true success comes after the retirement of Felix Frankfurter. Belknap argues (as others have) that his exodus really created what we think of as “the Warren Court.” The substitution of Arthur Goldberg for Frankfurter would have made a difference, just because of the tenuous balance on the Court, but the vacuum of Frankfurter’s leadership (both negative and positive) ushered in the activist Warren Court.
In addition to further insights into the dynamics of the Warren Court and the battles over legal perspective, the new material includes the argument that the decisions of the Warren Court were much more in the mainstream politically than we have come to believe. This seems at odds with the vitriolic opposition that the Court faced over its decisions, and the author concedes that it all but evaporated as the Warren Court evolved. Belknap also examines the Court’s work on taxation cases, abstention doctrine, and second generation ERIE cases, topics seldom considered in deference to the dominant civil liberties and civil rights agenda.
The book is a forceful reminder that, while many pay homage to the attitudinal model and others at least concede that attitudes are the most [*578] important determinant of Supreme Court decision making, the votes of the justices alone are not enough to understand the complexities of decisions. Belknap reveals important constitutional and philosophical divisions between justices whose final votes appear in the official opinion to be the same. This is particularly important to underline because many of these justices were willing to read their sincere preferences into the law and bend the provisions of the Constitution to do so. Even on a Court that most would concede was dominated by the attitudinal model, there were important gradations in reasoning and opinions. The significance is magnified by the fact that these justices were in the process of implementing a revolution, particularly in the creation of a constitutional right to privacy, rights of association, the protection of art, and finding libel law in the First Amendment.
Belknap writes more openly of bargaining among the justices and threats to pull votes and write concurring or dissenting opinions than most previous studies of the Warren Court. Perhaps most interesting is the number of times justices would pass before casting a vote and the number of cases that were held over for re-argument. One gets a real sense of the type of group dynamics that Walter Murphy (1964) wrote about a generation ago and Maltzman, Spriggs, and Wahlbeck (2000) have recently revisited. The strategic model of decision making gets support from the early and very late tentativeness of the Warren Court and its retreat in the face of Congressional opposition on some issues.
In the first edition of THE END OF LIBERALISM, Theodore Lowi (1969) conceptualizes the justices as modern theorists, hammering out their visions of the Constitution and the good republic. Belknap provides a rich discussion of the conferences and the evolution of opinions that support Lowi’s view. We are also reminded that many of the new chief’s colleagues had come to the bench just after the judicial activism of the 1930s had exposed the Supreme Court to political reprisal, coloring their views of judicial power.
The book is not without a few problems. Due to its organization, it is redundant in places. The book is organized topically for the most part. But for cases that cross issue boundaries (and a number do) and for those chapters that are organized temporally, the discussion of some cases, the surrounding environment, and intra-Court dynamics have to be repeated. There is a substantive cost to this, as well: the occasional loss of the broader context. For instance, Belknap tells us that Hugo Black had migrated from the left of the Court to perhaps right of center in a couple of issue areas. But we never get a full appreciation why: is it that the Court moved and he basically stayed still; did he get more conservative as he aged; or did the cases get more difficult? There is also the failure to address a major criticism that Black and William O. Douglas had for their brethren regarding the Court’s inconsistency between the colors black and red. While the Court fashioned wholly new doctrine to create a constitutional right to freedom of association to protect African Americans, it was unwilling to do so, until much later, for those alleged to be Communist sympathizers. In addition, [*579] although Belknap does a good job of placing the advances in association and libel law in the broader context of attempts of the Warren Court to protect civil rights, he fails to add the monumental criminal procedure landmarks to that list. The American Civil Liberties Union felt that incorporation of large parts of the Bill of Rights to the states in the 1960s was its primary contribution to the civil rights movement (Walker 1990). But these concerns should not distract from a strong study that has added some new perspectives on the Warren Court.
Ultimately, Belknap argues that the Warren revolution was strictly a legal one. He concedes that the reapportionment decisions did not help the intended beneficiaries, BROWN and its progeny did not create equality, police have flaunted MAPP and MIRANDA, and that many other decisions galvanized conservatives. Still the Warren Court legitimated activism, created a new rights consciousness, transformed American legal culture, and created a precedent for using courts for social reform. Whether the Burger Court was more liberal than the Warren Court (Maltz 2000) and the Rehnquist Court is the most activist tribunal in history (Keck 2004) are debatable propositions, but they demonstrate that the genie the Warren Court released cannot be put back in the bottle. In the end, it is clear that Professor Belknap has met the burden and the answer to the question posed at the beginning is clearly yes.
Keck, Thomas. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATIVISM. Chicago: University of Chicago Press.
Lowi, Theodore. 1969. THE END OF LIBERALISM. New York: W.W. Norton.
Maltz, Earl. 2000. THE CHIEF JUSTICESHIP OF WARREN BURGER, 1969-1986. Columbia: University of South Carolina Press.
Maltzman, Forrest; James Spriggs, and Paul Wahlbeck. 2000. CREATING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. New York: Cambridge University Press.
Murphy, Walter. 1964. ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press.
Powe, Lucas 2000. THE WARREN COURT AND AMERICAN POLITICS. Cambridge: Bellknap Press.
Schwartz, Bernard. 1983. SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT—A JUDICIAL BIOGRAPHY. New York: New York University Press.
Walker, Samuel. 1990. IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU. New York: Oxford University Press.
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).
ERIE v. TOMPKINS RAILROAD, 304 US 64 (1938).
MAPP v. OHIO, 367 US 643 (1961). [*580]
MIRANDA v. ARIZONA, 384 US 436 (1965).
© Copyright 2005 by the author, Richard L. Pacelle, Jr.