Vol. 9 No. 7 (July 1999) pp. 315-317.

THE CONTEXT OF JUDICIAL ACTIVISM: THE ENDURANCE OF THE WARREN COURT LEGACY IN A CONSERVATIVE AGE by Frederick P. Lewis. Lanham, Maryland: Rowman & Littlefield Publishers, Inc., 1999. 151 pp.

Reviewed by Mark A. Graber, Department of Government and Politics, University of Maryland.

 

"The Warren Court is dead," judicial pundits confidently proclaim with various degrees of enthusiasm. The justices that presently dominate the Supreme Court are not interested in using the power of judicial review to pursue liberal ends. Many declare their hostility to Warren Court principles at every opportunity. The lesson that must be drawn from the apparent demise of legal liberalism on the federal bench, leading constitutionalists announce, is that academic efforts to justify a broad, progressive judicial role serve no practical purpose. The Pope is more likely to be converted to atheism than the Rehnquist Court majority to Dworkinism.

Frederick P. Lewis boldly challenges this conventional wisdom. Had his book been written in Hebrew, the title might have been a paraphrase of a Jewish chant, "AM EARL WARREN CHAI: THE WARREN COURT LIVES." Rather than mourn or celebrate a passing era Lewis details how the main political and jurisprudential themes of the Warren Court have become relatively enduring features of the American constitutional landscape. The lesson that must be drawn from the continued survival of Warren Court doctrine, Lewis declares, is that ongoing legal debates over whether the main decisions handed down by that tribunal were right or wrong are moot and suffering from "diminished intellectual returns" (72). Scholars, The Context of Judicial Activism asserts, are "well advised to spend more energy examining judicial activism as a phenomenon and worry a bit less about its legitimacy" (70). "Thinking about" why "the Warren Court revolution . . . has survived and prevailed in many of its most fundamental doctrinal aspects," Lewis successfully demonstrates, "is a matter of importance and interest" (2).

The ConteXt of Judicial Activism serves as a welcomed reminder that Warren Court policymaking has "largely survived and become accepted as an integral part of modern America" (25). The major Warren Court decisions desegregating American life, incorporating the Bill of Rights, banning sectarian prayer in public schools, protecting the right of married people to use contraception, reapportioning state legislatures, and expanding free speech rights remain good law and are almost certainly likely to remain good law for the foreseeable future. With the exception of certain decisions on constitutional criminal process, few politically prominent politicians, justices or academic lawyers wish to bring back the good old constitutional doctrines of the early 1950s, doctrines which largely left protection of civil rights and civil liberties to state governments. Even during the allegedly conservative 1990s, Lewis points out, "many of the greatest accomplishments of [the Warren] Court remain broadly accepted and unchallenged" (42).

The success of the Warren Court seems particularly remarkable because this legacy endured at a time when numerous politicians successfully campaigned for public office on their opposition to Warren Court practice. Earl Warren continues to be the symbol of what many think wrong with the federal judiciary. Nevertheless, virtually all of the decisions that attract present conservative ire were handed down by the Burger or Rehnquist Courts. Conservatives oppose busing and affirmative action in the name of BROWN V. BOARD OF EDUCATION(1954). Americans of all persuasions employ the principle, "one person, one vote," when proposing various reapportionment schemes. Operation Rescue pickets abortion clinics, leaving doctors, drugstores and supermarkets free to dispense birth control.

Professor Lewis suggests several explanations for the success of the Warren Court. "Judicial activism," he observes, "is a form of creative constitutional development" that "has been a characteristic of the British and American constitutional systems for centuries" (89). The Context of Judicial Review persuasively details how numerous important elements of the present constitutional order were unknown to the framers and do not derive their legitimacy from any constitutional amendment (92). Warren Court activism may not have been what the framers of 1787 had in mind, but neither were mass political parties. The constitution of 1787 was more designed to prevent political parties than judicial activism, but no contemporary constitutional theorist thinks the former constitutionally suspect.

Lewis exaggerates when he claims that "the core of the real offense to the fundamentalist critics of judicial activism" is "the creative constitutional development, and not the fact that it is coming from an unelected judiciary" (94-95). Some liberals, traumatized by the American constitutional experience during the New Deal, did object more to the Warren Court per se than to the substantive policies articulated by that court. The justices during the 1960s received far less criticism for decisions such as HEART OF ATLANTA MOTEL, INC. V. UNITED STATES (1964) that sustained constitutionally innovative federal legislation than decisions declaring major state policies unconstitutional. Still, The ConteXt of Judicial Activism is right to note that creative constitutional development has occurred throughout American history, and that neither liberal nor conservative critics of the Warren Court have said much that would help Americans understand that phenomenon.

Lewis also maintains that contemporary judicial decisions reflect changing notions of American pluralism. Nineteenth century America, he writes, resembled a mosaic of repressive individual communities. The most fundamental right Americans had in this polity was to move to a community where members of their group did the repressing (117). This communal order broke down with modernization and urbanization. Americans of all sorts began sharing the same living space and a national economy demanded national standards of civil liberties (119). The Supreme Court served as the institution that mediated these changes, providing "the national perspective on civil liberty" (113) that the times demanded.

Following many scholars, Professor Lewis highlights the egalitarian strain in Warren Court decision making. The justices in his view, were more concerned with everyone enjoying the same standards of civil liberty than with the precise standard of liberty enjoyed, and more concerned with extending freedom to outgroups than with promoting individual right (108-09). Although The Context of Judicial Activism does not make the point explicitly, one might note that even when the Warren Court was nominally protecting an individual right, equality considerations often underlay the decision. One motivation for the judicial decision in GRISWOLD V. CONNECTICUT (1965) seems to have been the general recognition that birth control was available to the middle class.

Professor Lewis correctly notes that Warren Court activism was rooted in the social context of the times, but his claim that "most of such activism was unavoidable" seems another exaggeration. No doubt much racial change would have occurred had the Supreme Court denied certiorari in Brown v. Board of Education. Still, the precise shape that race policies and relations took in the United States was no doubt shaped by the distinctive role the Supreme Court played in the attack on Jim Crow. Much scholarship suggests that when political questions are resolved into judicial questions, something is changed in the translation. Perhaps this is mistaken. Still, Professor Lewis should be encouraged either to rethink or to develop further the claim that nothing of any consequence depended on the court initiating the attack on state sponsored segregation rather than some other institution. Normative analysis of judicial review may well depend on empirical analysis of any

differences between regimes whose judiciary play major roles in protecting civil rights and civil liberties and regimes that rely more on other institutions to protect fundamental freedoms.

Readers will no doubt find other places to criticize Professor Lewis's conclusions. His book at times cannot decide whether the primary audience is an undergraduate constitutional law course or constitutional law professors. Sometimes the work gets distracted criticizing scholarship not central to major themes. Still, Judicial Activism is a solid, important work of scholarship that should be taken seriously by all students of American constitutionalism. If nothing else, a good deal of celebrity constitutional law would benefit from starting from Professor Lewis’s astute point that judicial review "has been around a long time and, whatever its merits, it shows no sign of disappearing" (70).

 

CASES

BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954).

HEART OF ATLANTA MOTEL, INC. V. UNITED STATES, 379 U.S. 241 (1964).

GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965).

Copyright 1995