Guide The Rehnquist Court: A Retrospective

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  1. Bateman on Schwartz, 'The Warren Court: A Retrospective'
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New York: Oxford University Press, Reviewed by Thomas M.

The "Warren Court" has been called a continuing constitutional convention, the greatest Supreme Court since the one presided over by John Marshall, and the bright light of justice, fairness, and impassioned activism in a climate of stubborn political resistance and institutional paralysis. Alternatively, it has been labeled the usurper of the Constitution; a cabal of bleeding hearts intoxicated with the belief that the world can be changed with the stroke of a pen; and the final, exhausted thrashings of a reformist legal liberalism rapidly losing its intellectual foundations.

This book grapples with these various reputations and in so doing helps us all see clearly again what the passage of time and the accretion of received wisdom has obscured. This book is a compilation of the proceedings of a conference commemorating the Warren Court, its members, its jurisprudence, and its wider impact on the United States and the international community.

Earl Warren is something of an icon for many Americans of a reformist liberal political cast, and some of the contributions to this book are fawning, even gushing. He is variously called the "Super Chief" p. The accolades extend to the Court as a whole. But this is more than a "love-fest" p.

The twenty-five essays in this collection vary as much in length from four to forty-four pages as they do in style and depth.

Bateman on Schwartz, 'The Warren Court: A Retrospective'

Some of the pieces are personal reminiscences authored by a fellow justice William Brennan and former clerks. Other essays are more academic reviews of the decision making of the Warren Court in particular areas such as race, criminal law, takings, freedom of speech, and religious freedom.

Others examine the Court more broadly, for example from the perspective of legal theory. Still others are notable as much for their authorship as for their particular subject matter. Prominent professors of law, jurists active and retired, and others associated with the law are included in the list of contributors. Given this diversity, perhaps the best way to proceed is to identify a number of recurrent themes. Throughout, certain decisions receive sustained attention.

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In racial equality it is, unquestionably and unsurprisingly, Brown v. Board of Education that is probably most responsible for the esteem in which the Warren Court is held. In apportionment and the enunciation of the principle of strict voter equality it is Baker v.

In criminal law, Mapp v. Ohio and Miranda v. Arizona stand out. In the emergent constitutional right to privacy, it is Griswold v. In free speech, it is New York Times v.

Rehnquist Court - Wikipedia

The decisions are cited again and again and subjected to different kinds of analysis from essay to essay. The student of any of these cases can fairly glean a good sense of the arguments for and against each one by working through many of the essays.

The first theme is the that of decline. Several contributors lament the passing of an era of seemingly boundless extension of rights and of judicial courage in the face of intransigent majorities in the political halls as well as in the country as a whole. Anthony Lewis compares the Warren Court to the Rehnquist Court: one acts like a "second constitutional convention" and other like a salon de refus p.

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David Halberstam in his essay sees a descent from the high-mindedness of the Warren Court to a more prosaic meanness of spirit in the Rehnquist Court. The second theme informing many essays is what can be called the political default theory of judicial review, for which the Warren Court became the touchstone.

Taking account of the institutional rigidities and political incentives inherent in a strong system of checks and balances, and the implacable prejudices against blacks and criminals in the political culture, progressive reform could not be expected from the executive and legislative branches of government. If the Court did not act, no one would. The Court merely stepped into a political breach, goes the theory See the Schwartz essay on Warren, pp. It boldly went where others feared to tread, several argue, much to the betterment of the American polity. In a twist on the political default theory, Richard Neely argues that the Supreme Court is the only central institution able to set uniform legal rules of product liability for the country as a whole, the effect of which would be to put a damper on the costly awarding of liability claims against firms from out of state.

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Skickas inom vardagar. A judge-made revolution? In Bernard Schwartzs latest work, based on a conference at the University of Tulsa College of Law, we get the first retrospective on the Warren Court--a detailed analysis of the Courts accomplishments, including original pieces by well-known judges, professors, lawyers, popular writers such as Anthony Lewis, David Halberstam, David J. Garrow, and a rare personal remembrance by Justice William J. Brennan, Jr. The Warren Court: A Retrospective begins with an examination of the Courts decisions in a variety of different fields, such as equal protection, freedom of speech, freedom of the press, and criminal law.

The work continues with The Justices, an intimate look at the principal protagonists in the Courts operation. Then, in A Broader Perspective, the book looks at the Court from an historical perspective, demonstrating its impact on the legal profession and jurisprudence, its international impact, and its legacy.