Fifty-nine years ago, California Governor Earl Warren left behind his highest elected office to join what had at times been the most malign institution in American history. The first Supreme Court decision to strike down a federal law was Marbury v. Madison, an arcane opinion that is now the first decision every law student reads in their introduction to constitutional law. The second was Dred Scott v. Sanford, the paean to slavery that declared black people “beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”
The nation would eventually ratify three entire constitutional amendments to eradicate the taint of Dred Scott, and the Supreme Court spent the next thirty years denuding these amendments of any real meaning — an effort that culminated in the Court’s infamous endorsement of racial segregation in Plessy v. Ferguson. Having thus bled the Constitution dry of racial justice, the same Supreme Court then took to infusing its veins with the dark ichor of laissez faire social Darwinism. With the Court’s 1905 decision in Lochner v. New York, the Fourteenth Amendment enacted in order to eradicate American apartheid instead became a tool empowering the wealthy to better exploit their workers.
President Franklin Delano Roosevelt eventually ended the Court’s obsession with protecting the rich and powerful, but he remained deeply ambivalent about subjects like race. Roosevelt’s justices included some great supporters of civil rights, but they also included Justice James Byrnes, who later became a staunch supporter of separate but equal as governor of South Carolina. Roosevelt’s first appointment to the Supreme Court, Alabama Senator Hugo Black, surprised most of the nation when he proved to be relatively progressive on issues of race — Black once belonged to the Ku Klux Klan. The Roosevelt Supreme Court proved better than nearly all of its predecessors, as it largely fulfilled its creator’s hopes that it would keep its fingers out of economic policy. But it nonetheless approved some of America’s most egregious violations of civil liberties, including the Japanese-American concentration camps upheld in Korematsu v. United States.
So when Chief Justice Earl Warren donned his black robes for the first time, he took charge of an institution that simply faded into the background during its best moments — and did far, far worse much of the time. This is part of why Warren’s first great opinion in Brown v. Board of Education was such a lightning bolt. It did not simply affect radical change to the American social contract — the Court had been in that business for decades — but it also demonstrated that such change could be a force of good.
Brown might be remembered very differently today were it not for Earl Warren. The year before Warren became Chief, his future colleagues met under then-Chief Justice Fred Vinson shortly after the case was argued for the first time. Only four of them voted to end school segregation, none of whom were Vinson. After a fatal heart attack took Vinson off the bench, Warren became the fifth certain vote to integrate public schools. His colleagues eventually agreed to join his opinion unanimously.
In the years that followed, Warren’s Court would usher in modern free speech doctrine, effectively setting aside decades of cases that had ignored the First Amendment. It would abolish laws banning birth control. It would reverse decades of neglect that led some voters to have 41 times as much say in the makeup of their state legislatures as others in the same state. And it ended racial marriage discrimination in the most appropriately named Court decision in American history: Loving v. Virginia.
The Warren Court remains a celebrated judicial era, but it also presents a serious challenge for progressives eager to recreate it. We who are fortunate enough to live after Earl Warren’s tenure as Chief Justice are spoiled. We know what it is like to have a Supreme Court that is a force of good in the world. We treasure the parts of the Constitution Warren revived after generations of prior justices allowed them to atrophy or worse. And Warren’s example enables us to look upon the current Court’s frequent decisions to place ideology before the Constitution as a shameful outlier. Yet the truth is that, for most of American history, the Supreme Court bore far more resemblance to the Roberts Court than it did to the Warren era.
Nevertheless, the fact remains that Warren’s Court made the words “equal protection of the laws” truly mean something for the first time in American history. Warren’s Court breathed life into the Bill of Rights; it ushered in the guarantee of one person, one vote; and it chiseled cracks into the face of American apartheid that would eventually cause it to crumble into dust. President Dwight Eisenhower, who wanted a more conservative Court, would later say that appointing Earl Warren was “the biggest damned-fool mistake I ever made.”
The whole nation should be deeply grateful that he made it.