Warren Court - Vision

Vision

Professor John Hart Ely in his book Democracy and Distrust famously characterized the Warren Court as a "Carolene Products Court." This referred to the famous Footnote Four in United States v. Carolene Products in which the Supreme Court had suggested that heightened judicial scrutiny might be appropriate in three types of cases: those where a law was challenged as a deprivation of a specifically enumerated right (such as a challenge to a law because it denies "freedom of speech," a phrase specifically included in the Bill of Rights); those where a challenged law made it more difficult to achieve change through normal political processes; and those where a law impinged on the rights of "discrete and insular minorities." The Warren Court's doctrine may be seen as proceeding aggressively in these general areas: its aggressive reading of the first eight amendments in the Bill of Rights (as "incorporated" against the states by the Fourteenth Amendment); its commitment to unblocking the channels of political change ("one-man, one-vote"), and its vigorous protection of the rights of racial minority groups. The Warren Court, while in many cases taking a broad view of individual rights, generally declined to read the Due Process Clause of the Fourteenth Amendment broadly, outside of the incorporation context (see Ferguson v. Skrupa, but see also Griswold v. Connecticut). The Warren Court's decisions were also strongly nationalist in thrust, as the Court read Congress's power under the Commerce Clause quite broadly and often expressed an unwillingness to allow constitutional rights to vary from state to state (as was explicitly manifested in Cooper v. Aaron).

Professor Rebecca Zietlow argues that the Warren Court brought an expansion in the "rights of belonging," which she characterizes as "rights that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community." Zietlow notes that both critics and supporters of the Warren Court attribute to it this shift, whether as a matter of imposing its countermajoritarian will or as protecting the rights of minorities. Zietlow also challenges the notion of the Warren Court as "activist," noting that even at its height the Warren Court only invalidated 17 acts of Congress between 1962 and 1969, as compared to the more "conservative" Rehnquist Court which struck down 33 acts of Congress between 1995 and 2003.