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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Was the Warren Court an "Emergency Court" for the Problem of Race?
Coming to terms with the Warren Court continues to be central to constitutional doctrine today, as well as to debates over the proper role of the Court in American democracy. Defenders of the Warren Court look to its decisions as a model for how the Court ought to address issues ranging from the scope of national powers, to individual rights, to protection of minority interests under the Equal Protection clause. These defenders also see the Warren Court as offering a general vision for the role the Court ought to play; they ask where are the Justices today like Warren, or Brennan, or Douglas, or Marshall, and why are Democratic Presidents not appointing them? Critics of the Warren Court, in turn, view many of that Court's decisions as inappropriate or illegitimate: distortions of the Constitution and the proper role of the Court that led the Court to take over decisions that ought instead to be resolved by democratically-elected bodies.
In a provocative new article in the 50th anniversary issue of the Supreme Court Review, my colleague, Burt Neuborne, argues that both of these views are, in essence, wrong. Neuborne argues, instead, that the Warren Court should be understood as a more historically contingent moment in American law and life. The Warren Court is best seen, in his view, as an "emergency Court" that was responding to the unique problem of race in American life in an era that began during the years of American apartheid and continued through the initial dismantling of the structures associated with segregation. Neuborne argues that many of the doctrines of the Warren Court cannot be understood (or justified?) outside this context -- but that in context, those doctrines were indeed appropriate. Even lines of doctrine that make no direct reference to the problem of race, or that came to the Court outside a specific racial context, should be understood as responses to the urgency of various problems tied to race. One intriguing and surprising example is the willingness of the Court to create exceptions to normal standing rules in the context of Establishment Clause claims, in the famous case of Flast v. Cohen. Neuborne argues that the expansive and exceptional standing rules in Flast were created to enable challenges to the private, religiously-based, all-white school academies that emerged in the wake of the Brown decision. Other scholars have argued that certain particular bodies of Warren Court doctrine should be understood in exactly this way; thus, Harry Kalven argued long ago (in The Negro and the First Amendment) that many of the Warren Court's First Amendment decisions were always informed by the underlying pathologies of racial relations at the time, while Dan Kahan and Tracey Meares have argued that the Warren Court's revolution in criminal procedure should be understood as a response to the political exclusion of African-Americans at the time in many places from the ordinary democratic processes of voting and elections. But Neuborne's piece argues that the jurisprudence of the Warren Court as a whole is pervasively informed by the "emergency" nature of the problem of race during that era.
Since 9/11, we are used to debates about "emergency powers," but these debates focuses exclusively on the President and Congress in contexts involving war or similar threats to national security. In suggesting that we should see the Court as exercising something like "emergency powers" during the Warren Court era, Neuborne intentionally raises a host of provocative questions that the more conventional forms of debate regarding the Warren Court. For example, Neuborne argues that perhaps some Warren Court doctrines were legitimate, appropriate, and justified at the time, given the urgency of the problem of race then, but that those doctrines should not be extended today or would not be justified today in more "normal" times of American democracy. Thus, critics of the Warren Court are wrong to take issue with those decisions, in the context in which they were issued, but defenders of the Warren Court are wrong to view every failure of, say the Roberts Court, to extend those decisions as wrong-headed and illegitimate. One very recent Court decision is a perfect test of these thoughts: the Court's 5-4 decision in Arizona Christian School Tuition v. Winn , in which the Court refused to extend or apply Flast: was this an inappropriate refusal to follow the logic of Flast or an appropriate recognition of the reasons Flast ought to be limited to its specific context?
Without going on at greater length, I simply wanted to call Neuborne's article to the attention of readers of this blog, and to give some flavor of the kinds of issues it raises. For anyone interested in the Court as an institution, as well as many specific doctrinal debates today, Neuborne's article generates many rich, intriguing questions. Posted
by Rick Pildes [link]
To not apply Flast is effectively to repeal the Establishment Clause. It is to hold that the standing requirement is a more important provision of the Constitution than is the Establishment Clause. Yet the standing requirement is not explicitly in the Constitution; only the words "case" and "controversy" are, and those two words do not inherently preclude taxpayer standing at all.
The concept of the Warren Court as an emergency court rings true. The anti-colonial movement in Africa and Asia was a dominant theme in the post-war era, and the racism which had supported colonialism was no more apparent than in US segregation. Furthermore, the Communist ideal of classless equality put the US at an ideological disadvantage in the Cold War due to segregation. Finally, the desegregation of the Army and the contributions of blacks to the war effort made them less willing to accept and the US political leadership less willing to support Southern segregation. There was a political emergency impairing the participation of the US in world policy which could not be solved from within the polity due to the exclusion of blacks from political power and the many structural, doctrinal and ideological barriers that Southerners had erected to establish and maintain Jim Crow.
A similar case could be made for Baker v. Carr as an emergency response. As the opinion shows, the political process was constipated, intentionally, as a means of maintaining the conservative power. It was Warren's greatness that he saw that the Court was the only institution which could respond to this emergency and did not shy away.
"To not apply Flast is effectively to repeal the Establishment Clause."
Other constitutional provisions don't have similar looser standing rules, so are they repealed?
Also, given the number of cases decided on EC w/o the looser taxpayer standing applied, where does that take you? "Weaker" is not the same thing as "repealed."
The Warren Court's breadth, anyway, very well might be deemed an "emergency court," but various basic results (such as mostly finishing the job of incorporation of provisions to the states) are not. They set forth permanent rules that might be weaker now, but even weak drinks at a bar will do better than the alternative.
Joe, you're right that some Establishment Clause violations have victims more specific than taxpayers; I was thinking only of the cases that do not. The Establishment Clause may be unique in having many violations without victims more specific than taxpayers, but I might be wrong about that.
In any case, my point about the excessive importance that the Court gives to standing stands even if we change "repeal" to "weaken." Standing is very much a political doctrine, used to protect the powers that be when they violate the law.
Wow, I thought the impact of race on the Warren Court decisions was one of those obvious things that everyone understood.
Regardless, I don't think this fact should affect the way the Court today treats those precedents, even putting aside the importance of stare decisis. First, the condition of blacks in that era, while extreme, raised a problem that will always exist in democratic systems, namely, treatment of minorities of any kind. Second, the reasoning of the Court, including its understanding of counter-majoritarian protections, needs to stand on its own.
Thanx to prof Pildes for the sketch and its background. Much might be said about the trends to which the "Warren" bench imparted a certain impetus. I doubt very much the "emergency" has evanesced before the onslaught of moderation. Anyone who managed to remain a student 1963-1972 well might view more recent trends as retrenchment. Still, the Burt Neuborne chronicle remains an important portal to some, only some, of the institutional responses in the early part of an era which, from my view, persists, only having morphed into more variegated regions in newspeak. I see VRA not as the bulwark but as the ongoing target in efforts to rollback ethnic disparity, without mention of the new environmental and commercial techniques developed to ensure avoidance, exclusivism, and deductive excuses survive to serve the same identical purposes as existed in the early 1950s.
I'm not aware of meaningful constitutional challenges currently of Brown v. Board of Education. Even originalists seem to accept the decision. But it took a lot of time and effort as described in Burt Newborne's article to reach this point. While there are no current direct challenges to Brown, there is resentment of many of conservative ilk, starting with day one, of Barack Obama, America's first African American President. Demographics may make it difficult to challenge Brown at this stage, but not Obama.
The Brown decision came down as I was finishing law school. My conlaw course in the fall of 1952 focused primarily on the commerce clause. So it was exciting, following Brown, as I started to practice law, living through the Warren Court which recognized individual rights of the weak. The road to social justice can advance two steps, back one, etc, with some progress, sometimes at a snail pace.
Newborne's article serves as a valuable outline of that road after Brown. Newborne is quite polite in not mentioning Nixon's Southern Strategy that continues in some form today. But let's not forget the actions that led to Brown through the efforts of Thurgood Marshall and other lawyers, black and white, often at great personal safety risks.
It will be interesting to see what develops during the 2012 presidential campaign regarding race. While I am confident that Brown won't be challenged, resentments of a racial nature will surely surface. We are not yet, as Newborne points out, a post-racial society.