The Least Dangerous Branch? · Episode 9 of 13 · 38 min
The Warren Court: Judicial Activism From the Other Direction
The Warren Court dismantled Jim Crow, rewrote criminal procedure and found a right to privacy, drawing 'Impeach Earl Warren' billboards and a lasting conservative charge that judges were inventing law. The episode steelmans that critique and introduces Alexander Bickel's 'counter-majoritarian difficulty,' the tension of unelected judges overruling elected majorities. The neutral-umpire ideal fails symmetrically.
Who's who
- Earl WarrenChief Justice 1953-1969 and former California governor
- Dwight D. Eisenhower+12 more episodesPresident who appointed Warren and William Brennan
- William J. Brennan Jr.+1 more episodeLiberal strategist and coalition-builder on the Court
- Hugo Black+2 more episodesDissented in Griswold against unwritten rights
- William O. DouglasWrote Griswold's 'penumbras' theory of privacy
- Thurgood Marshall+4 more episodesNAACP lawyer who argued Brown; later first Black justice
- Alexander BickelYale professor who named the counter-majoritarian difficulty
- Robert Bork+1 more episodeLater originalist opposed to Warren-era method
Timeline
- 1954Brown v. Board of Education decided 9-0.
- 1963Gideon v. Wainwright establishes the right to appointed counsel.
- 1964Reynolds v. Sims establishes 'one person, one vote.'
- 1965Griswold v. Connecticut finds a constitutional right to privacy.
- 1966Miranda v. Arizona requires police warnings, 5-4.
- 1969Warren retires and Nixon appoints Warren Burger.
Still debated
Scholars ask whether Brown was activist at all, and whether the counter-majoritarian difficulty proves too much, since courts protect minorities precisely because they are insulated from majorities. Whether originalism is truly more constrained is also contested.
← PreviousCourt-Packing and the Switch in Time: Why the Court Has Nine JusticesNext →How the Supreme Court's Seats Were Won
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