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.