an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Still, other conservatives object that Liu's writings echo many of the themes of the Warren Court era. That is the period in which the Supreme Court read the Constitution to recognize a right to an abortion, raise the wall separating church and state, uphold the constitutionality of affirmative action and expand the protections provided to criminal defendants.
Earl Warren gets a bum rap from conservatives and so does the Warren Court. It's the Burger Court when most of these things happened. That's the Court conservatives really shouldn't like, and it was a Court dominated by what were then considered to be conservatives.
Earl Warren left the Supreme Court in June 1969. The right to abortion is first recognized in Roe v. Wade in 1973 by the Burger Court. The decision in Roe v. Wade is 7-2, with a majority consisting of Burger, Blackmun, and Powell (appointed by Nixon) and Stewart (appointed by Eisenhower) joined by liberal Democrats Brennan (also appointed by Eisenhower!), Marshall and Douglas. William Rehnquist (appointed by Nixon) and Byron White (appointed by Kennedy) are the only dissenters. It's important to remember that at the time Roe v. Wade is a bipartisan decision that actually unites the left and the right wings of the Court. It only becomes a conservative flashpoint later in the 1970s.
The first affirmative action case decided by the Supreme Court does not actually uphold affirmative action but strikes it down. It is Bakke v. Regents of the University of California, decided in 1978, at which point Earl Warren has been off the Court for nine years and dead for four years. Bakke does have a opinion that offers colleges and universities a way of justifying affirmative action programs, but it is written by a Nixon appointee, Lewis Powell.
In fact, the opinion about race that modern conservatives really do like, and always use to attack affirmative action is Brown v. Board of Education. That opinion was written by Earl Warren. (So, really, why isn't he a conservative hero?)
There are no affirmative action decisions during the Warren Court era. The theory of disparate impact in racial employment discrimination cases is recognized in Griggs v. Duke Power, a unanimous opinion written in 1971 by Warren Burger.
Earl Warren's court doesn't legitimate the use of busing as a remedy for public school segregation. That comes in Swann v. Charlotte-Mecklenburg Board of Education, decided in 1971 by a unanimous court and written by Warren Burger.
The Warren Court does strike down state organized school prayer and Bible reading in public schools, but the Establishment Clause decision that announces the general test that requires separation of church and state, and the one most detested by modern conservatives, is Lemon v. Kurtzman, decided in 1971 and written by--you guessed it--Warren Burger.
Tom's mistake is so common that he can hardly be blamed for it. It permeates journalists' and politicians' discussions of the history of the Supreme Court. To them "the Warren Court" equals all the things conservatives don't like--but most of these things happened during the Burger Court. Miranda v. Arizona and Mapp v. Ohio (application of the exclusionary rule to the states) are the big exceptions. But the Burger Court does not overrule Miranda or Mapp. It hems them in a bit but, far more importantly, also legitimates and normalizes them so that they are still with us today.
So what I want to know is: why do people keep blaming Earl Warren and the Warren Court for what Warren Burger and the Burger Court did? And why does Earl Warren get no conservative love for writing Brown, which conservatives use to bash affirmative action? Is there some sort of collective amnesia about the 1970s? Is there some unspoken rule that no matter what happens, it's always Earl Warren's fault?