Wednesday, December 19, 2012

The Enduring Image of the Warren Court

Mark Tushnet

Although it's pretty clear that the influence of the US Supreme Court on other constitutional courts has diminished, both absolutely and compared to that of the high courts of Canada, Germany, and South Africa, my conversations with lawyers and judges in Pakistan made it clear to me that there "the United States Supreme Court" simply is the Warren Court. I tried to be diplomatic in suggesting that the Warren Court ended quite a while ago, but that thought had absolutely no purchase in the conversations. "Yes, but Brown," was pretty much the uniform response. And maybe, in some sense, that's correct -- or maybe, might become correct again. To adapt, tritely, a widely used metaphor, people of my now-nearing-retirement generation saw the arc of the moral universe bending briefly in the right direction and then for a long time in the wrong direction, but (on this view) MLK Jr. was correct in telling us that we were not seeing that arc in its full length.

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