NCJ Number
11415
Date Published
1970
Length
247 pages
Annotation
EVALUATION OF THE SUPREME COURT UNDER EARL WARREN AS AN INSTITUTION WHICH BECAME A POLITICAL BODY THAT MADE NATIONAL POLICY.
Abstract
IN THESE FIVE ESSAYS BASED ON THE COOLEY LECTURES HE DELIVERED AT THE UNIVERSITY OF MICHIGAN LAW SCHOOL IN THE FALL OF 1969, THE AUTHOR EXAMINES THE SIGNIFICANCE OF THE WARREN COURT IN THE CONTEXT OF AMERICAN CONSTITUTIONAL HISTORY AND THE COURT'S RELATIONSHIP TO THE OTHER BRANCHES OF GOVERNMENT. HE ARGUES THAT THE WARREN COURT HAS CONTRIBUTED MUCH TO THE CENTRALIZATION OF POWER AND AUTHORITY IN THE NATIONAL GOVERNMENT OVER THE LOCAL STATE GOVERNMENTS BUT THAT ITS DECISIONS HAVE HAD TO BE IMPLEMENTED MORE BY ACTUAL FORCE THAN BY MORAL SUASION. THUS THE COURT HAS TRANSGRESSED BRANDEIS'S DICTUM THAT A JUDGE 'MAY ADVISE - HE MAY PERSUADE - BUT HE MAY NOT COMMAND OR COERCE. 'FOR THIS REASON AMONG OTHERS, THE SUPREME COURT HAS BECOME A PARTICULARLY VULNERABLE POLITICAL TARGET. THE WARREN COURT, WRITES KURLAND, CREATED NO NEW MAJOR DOCTRINES, RATHER, ALL ITS SIGNIFICANT JUDICIAL LANDMARKS HAVE BEEN PART OF ITS ATTEMPT TO ENFORCE PRINCIPLES ALREADY INHERENT IN THE CONSTITUTION. THE JUDGES REALIZE THAT THEIR ROLE IS NOT TO LEGISLATE BUT TO INTERPRET, AND YET PROPER INTERPRETATION OF THE LAW IS CREATIVE. THE TURMOIL SURROUNDING THE WARREN COURT DERIVES PARTICULARLY FROM ITS BAN ON SCHOOL SEGREGATION, ITS REAPPORTIONMENT OF STATE LEGISLATURES, ITS BAN ON PUBLIC SCHOOL PRAYER AND BIBLE READINGS, AND ITS ENFORCEMENT OF RULES OF CRIMINAL PROCEDURE. THE JUDGMENTS ON THESE ISSUES COLLECTIVELY MANIFEST A SHIFT IN ULTIMATE POWER FROM THE STATES TO THE JUDICIAL BRANCH OF THE NATIONAL GOVERNMENT. BUT THEY HAVE ALSO CREATED A CREDIBILITY GAP BETWEEN THE COURT'S PRETENSIONS AND ITS ACTIONS, RESULTING IN A NOTICEABLE THREAT TO THE PUBLIC'S CONFIDENCE IN THE COURT. (AUTHOR ABSTRACT)