Wednesday, June 27, 2012

What Would Earl Warren Do?

The spirit of the Lord shall rest on him, the spirit of wisdom and understanding, the spirit of counsel and might, the spirit of knowledge and the fear of the Lord. 3His delight shall be in the fear of the Lord. He shall not judge by what his eyes see, or decide by what his ears hear; 4but with righteousness he shall judge the poor, and decide with equity for the meek of the earth.
Isaiah 11:2-4a

It has been almost forty years since Earl Warren died. In my earliest memory, I thought his name was "Chief Justice Earl Warren." I don’t remember whether or not I was surprised to discover that he was not a Native American. Later, I remember the bumper stickers that said, “Impeach Earl Warren.” They were rare on Cape Cod, and more of a curiosity than anything else.

Earl Warren was a Republican, appointed Chief Justice by President Eisenhower after serving three terms as Governor of California. In the second election he was unopposed in the general election, having won the nomination of the Republican, Democratic and Progressive parties. Before serving as Governor, he was the Attorney General, and before that he was a district attorney, known for his skill and toughness.

Sadly, as Attorney General, Warren was the driving force behind the compulsory internment of Japanese citizens during the Second World War. He was convinced that Americans of Japanese ancestry could not be trusted to be loyal to the United States and that the internment was an act of self defense by the government. In his memoirs, Warren wrote of his deep regret regarding "the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens...Whenever I thought of the innocent little children who were torn from home, school friends, and congenial surroundings, I was conscience-stricken.”

As a young person, I believed deeply in the goodness of the Supreme Court. They were the keepers of the flame of liberty. They were the ones who would keep us on course. And I believed that when a person was appointed to the court, he (or later, she) would feel the gravity of that sacred office and rise above partisanship. In those days I had a very idealized view of history, and I had no trouble believing that decisions like “Dred Scott,” or “Plessy v. Ferguson” were aberrations, and that “Brown v. Board of Education” was and would always be the norm.

I have been reflecting on the debt we owe to “The Warren Court.” Without their ruling on segregation, it is hard to imagine the Civil Right Act. And it’s hard to imagine the subsequent Civil Rights gains for women and more recently for gays and lesbians. Our expanding view of equality is a legacy of the Warren Court. Earl Warren and his colleagues were in the right place at the right time.

One suspects that the outcome would have been very different if the Warren Court had ruled on “Citizens United,” and on the related case in Montana.

And it is interesting to wonder how the Roberts Court would have decided on “Brown.” In one sense that’s not really possible even to imagine, since the Roberts Court would be very different without that decision. Justice Thomas certainly would not be on the Supreme Court without Earl Warren’s leadership on “Brown.” And we probably would not have any women, either.

If the Warren Court were considering the Affordable Care Act, I think the Chief Justice would have to recuse himself. One of Earl Warren’s unsuccessful initiatives as Governor of California was universal health care.

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