Your Daily Provocation

From Daniel McCarthy:

“As a guideline, originalism clearly has merits: it leaves most politics to the political branches, even if it might not succeed in leaving all politics to them; and it may encourage, at least up to the point, a degree of modesty on the part of the judge—relative, that is, to theories that loudly assert the scope that judges actually have in rendering opinions. In some ways, originalism and the broader backlash against the activism of the pre-Rehnquist court may have disguised just how bad the alternatives could be: the Supreme Court has been less adventurous in the last 30 years, and conservatives who remember how adventurous it was earlier in the 20th century may be frustrated that the danger they perceive isn’t felt as strongly by someone like me.

But I remain skeptical. Jurisprudence is an area where I find very little conservative self-examination as searching as that on display in various schools of economics and foreign policy. Indeed, traditionalists and libertarians who reject conservative-movement talking points on economics or foreign policy sometimes sound like just like Rush Limbaugh or Bill Kristol when it comes to the courts. This consensus may exist for a good reason—because it’s formed around a correct doctrine—but it may just mean that the best minds of the right have yet to turn sufficient attention to this area.”

McCarthy doesn’t add the more cynical supposition that criticism of originalism on the right is a sure way off the greased (federalist) career path that the last thirty years has carved out. But the buried argument in this paragraph is worth excavating: the success of the counterrevolution has blinded those who came after to how adventurous – and wrong – the original Warren-court’s premises about judicial and national power and competency turned out to be. A version of this argument is now the CW, at least in some circles.  And so I wonder…how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?

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5 Responses

  1. Orin Kerr says:

    Dave asks, “how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?”

    I don’t think most practicing lawyers today know enough about the Warren Court to have an opinion on it. But I suspect that the percentage of law professors who would want to live in such a world would be quite high.

  2. AF says:

    The Warren Court existed during a particular historical time and many of its “premises about judicial and national power and competency” were correct at that time. It is for this reason that most of the leading Warren Court precedents are highly popular, if not universally acclaimed. While it may be true that the Warren Court’s approach is no longer appropriate, it is highly anachronistic to call it “wrong.” It is particularly odd to do so if you want to simultaneously maintain that the Court’s landmark decisions such as Brown, Gideon, and Miranda were correctly decided.

  3. Dave Hoffman says:


    Well, I at least feel would feel quite good about jettisoning Miranda & most of the Court’s constitutional criminal law adventures. (See generally Stuntz.) The point of the post, though, was that whatever one can say about the merits of the precedents at the moment they were written, not many lawyers would want a court today that nationalized (constitutionalized) more areas of political life.

  4. Dave Hoffman says:

    Yes, though it’s also the case that bernie sanders would win an election of obama v. sanders walking away.

  5. Joe says:

    How different is the Supreme Court today? I share AF’s sentiments generally and note that at the time there was broad support — such as JFK supporting the religious rulings — of what they did politically. Of course, there was a strong minority in opposition. Ditto during Marshall’s day.

    Anyway, I repeat my question. What great reduction of “nationalized” areas of “political life” is now off limits by this Court, even putting aside a certain ruling in 2000? The health care ruling, for instance — a major piece of legislation was barely upheld with one part of it struck down 7-2 (the Medicaid argument deemed specious even by some credits of mandate beforehand). Affirmative action, the death penalty, etc. still seen as issues the USSC can “nationalize.”

    As to “jettisoning,” go at it — should we jettison Gideon? The application of the BOR (as a whole) to the states? I guess the exclusionary rule case, written by one of the more conservative members & a former prosecutor (Tom Clark / Mapp) is an easy target, though Holmes thought it obviously appropriate when applied to the federal government. Brown?

    Anyway, AF is correct — the Warren Court was a perfect storm, including a moderate Republican leading the way. And, did anyone see that HBO drama on the Muhammad Ali case? Christopher Plummer as John Harlan … pretty good!