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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 1: Chief Justice Earl Warren led the Supreme Court from nineteen

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Speaker 1: fifty three until nineteen sixty nine. The Warren Court was

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Speaker 1: the Supreme Court of landmark decisions like Brown v. Board

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Speaker 1: of Education, Getton v. Wainwright, and Miranda the Arizona, just

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Speaker 1: to name a few. Echoes of the underpinnings of those

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Speaker 1: decisions can be heard in Warren's eulogy for President John F. Kennedy.

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Speaker 1: We currently love justice and mercy. If we fervently want

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Speaker 1: to make this nation better for those who are to

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Speaker 1: follow us, we can at least abjure the hatred that

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Speaker 1: consumes people, the false accusations that divide us, and the

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Speaker 1: bitterness that begets violence. Joiny Mere. Professors Jeffrey Stone and

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Speaker 1: David Strouss of the University of Chicago Law School there

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Speaker 1: the office of the new book, Democracy and Equity, The

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Speaker 1: Enduring Constitutional Vision of the Warrant Court. David explained the

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Speaker 1: significance of the Court in law and in history. I

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Speaker 1: think it is significant in two ways. One is that

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Speaker 1: it tackled a real problem that's been at the heart

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Speaker 1: of American life from the beginning. That's the problem of

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Speaker 1: race discrimination and racial subordination of African Americans, and the

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Speaker 1: Warrancourt tackled that problem when the other branches of government

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Speaker 1: were not willing to. And however much progress it made,

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Speaker 1: it made progress, and that is a permanent part of

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Speaker 1: its legacy. And no other coordinary history tackled that problem

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Speaker 1: and made progress on the way the Warrant Court did.

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Speaker 1: That's one thing, I'd say. The other is really just

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Speaker 1: a kind of more general version of that, which is

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Speaker 1: the warrant Courts saw as its mission to look out

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Speaker 1: for the people who are not getting a fair shake

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Speaker 1: in society. And it started with African Americans and the

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Speaker 1: Jim Crows South, but the Warrant Courts view was a

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Speaker 1: more universal one and extended to for example, criminal defendants,

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Speaker 1: political dissidents, religious minorities, and eventually, near the end of

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Speaker 1: its time, a little bit poor people. And it thought

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Speaker 1: that's what the Supreme Court should be doing. It should

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Speaker 1: be sticking up for the people who are not getting

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Speaker 1: a fair shake elsewhere. Jeff, do you want to add

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Speaker 1: to that? I guess I would add that war in

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Speaker 1: court also gave over time a sense of why we

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Speaker 1: need judicial review. Why we need courts to enforce the constitution,

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Speaker 1: And that was something that Framers themselves understood. It was

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Speaker 1: basically because we love democracy, but we know democracy is flawed,

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Speaker 1: and we know sometimes it can be flawed in serious ways.

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Speaker 1: Two of the ways in which is most obvious that

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Speaker 1: democracy will not work the way in which one might

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Speaker 1: hope it does, is first in its treatment of people

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Speaker 1: who are seen as the other, whether they be African Americans,

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Speaker 1: or women or gays, or any group at any moment

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Speaker 1: in time is seen as an outsider, that majorities will

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Speaker 1: tend not to give them a fair shake, and you

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Speaker 1: need courts with life tenure to step in in those

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Speaker 1: circumstances and ensure that the government in fact acts properly.

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Speaker 1: And the other has to do with democracy part of

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Speaker 1: it in the sense that one of the other temptations

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Speaker 1: that majorities will have is to manipulate the political process

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Speaker 1: in order to retain their power, and they will pass

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Speaker 1: laws about poll taxes and literacy tests and gerrymandering and

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Speaker 1: so on that are designed to undermine the basic principles

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Speaker 1: of democracy in order to ensure that they remain in power.

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Speaker 1: And they're too one needs courts with judges with life

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Speaker 1: tenure to be able to step in and say no,

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Speaker 1: we have a deeper commitment than that, and there are

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Speaker 1: sometimes when majorities can't do what they want. Those two factors,

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Speaker 1: the protection of those who are vulnerable and the protection

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Speaker 1: of democracy in the political sense, were two of the

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Speaker 1: central features of the Warrant Court, and I think they

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Speaker 1: were completely right, and those decisions have the tests of time.

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Speaker 1: We now have a Chief Justice who thinks the court

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Speaker 1: should remain above the political fray who says justices should

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Speaker 1: just called balls and strikes. Jeff, how does that contrast

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Speaker 1: with Chief Justice or a Warren's view? Well, I think

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Speaker 1: it doesn't mean anything, to be perfectly honest, it's utterly hypocritical.

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Speaker 1: The reality is that the major cases the Supreme Court has,

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Speaker 1: the ones that are most important, most controversial, aren't about

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Speaker 1: balls and strikes. They were about complex, difficult, challenging issues.

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Speaker 1: So the notion of calling balls and strikes really has

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Speaker 1: very little meaning. Ian we're talking about a case like

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Speaker 1: Brown v. Board of Education or a case like Citizens United,

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Speaker 1: there is no balls and strikes there. Those are very

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Speaker 1: hard questions that require serious judgment, and beyond that, courts

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Speaker 1: and justices do need a principal approach to the exercise

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Speaker 1: of their very large power that you're given under the Constitution.

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Speaker 1: And to pretend that all you're doing is calling balls

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Speaker 1: and strikes is simply to purport to hide the reality

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Speaker 1: of the judgments that you're making. David, the Warren Court

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Speaker 1: has been criticized as being too activists and changing the

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Speaker 1: law rather than following it, imposing its own vision on society.

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Speaker 1: How do you end through those criticisms. I'd answer them

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Speaker 1: in two ways. First of all, the Warrant Court was

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Speaker 1: in its bones deeply democratic. And here's what I mean

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Speaker 1: by that. Some of the most important decisions of the

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Speaker 1: Warrant Court were decisions that actually expanded democracy and made

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Speaker 1: it healthier, like the one person won vote decisions. And

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Speaker 1: we quote in the book from an interview or a

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Speaker 1: warrant gave late in his career where he said, you know,

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Speaker 1: if we had been able to decide the one person

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Speaker 1: won both decisions earlier, Brown against Board of Education would

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Speaker 1: have been unnecessary because the democratic process would have solved

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Speaker 1: the problem. Now, I think that's a little bit naive,

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Speaker 1: but it reflected the attitude that pervaded the Warrant Court,

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Speaker 1: which is our primary commitment is the democracy, and we

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Speaker 1: are only going to step in where we think there

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Speaker 1: is some malfunctioning democracy, and then we'll just try to

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Speaker 1: fix the malfunction. The second thing I'd said is if

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Speaker 1: you look at these critics of the Warrant Court, including

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Speaker 1: their successors on some later Supreme courts, and you look

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Speaker 1: at the decisions they've actually overruled, you would be hard

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Speaker 1: pressed to find any warrant Court decisions that later courts overruled.

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Speaker 1: With one exception. The exception is not Brown, which of

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Speaker 1: course has become sacrosanct. We didn't overrule that. They didn't

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Speaker 1: know over rule Miranda, one of the then most notorious

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Speaker 1: criminal justice decisions. They didn't overrule the school prayer decisions.

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Speaker 1: What they overruled was a series of Warrant Court decisions

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Speaker 1: that really paved the way for Congress to tackle some

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Speaker 1: of the nation's big problems. The Warrant Court was very

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Speaker 1: committed to the idea that the big problems in the country, race, discrimination,

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Speaker 1: the state of the economy, the extent to which the

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Speaker 1: economy should be regulated, those are for Congress, and we

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Speaker 1: the Supreme Court, are going to get out of the way,

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Speaker 1: and if you look at the changes that later courts

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Speaker 1: have made, that's where they may change is by doing

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Speaker 1: things like striking down portions of the Affordable Care Act,

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Speaker 1: striking down portions of the Voting Rights Act. It was

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Speaker 1: really the democratic side of the Warran Court that's come

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Speaker 1: under attack by later courts. And I think by democratic

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Speaker 1: David meets democratic with the small d not democo at

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Speaker 1: it because the political party. Yes, absolutely, I hope, Jeff.

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Speaker 1: Can you describe how the Warren Court evolved, and particularly

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Speaker 1: how the Chief Justice evolved? Well, I think Earl Warren

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Speaker 1: played a critical role in the evolution of the Warren Court.

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Speaker 1: You know, one of the most as David noted, one

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Speaker 1: of the most parts, the most important decision to warre

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Speaker 1: On Court made was in a Brown versus Board of Education,

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Speaker 1: And in the Supreme Court first considered that case three

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Speaker 1: the justices were very much divided about what the right

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Speaker 1: outcome was and there was a reasonably good probability that

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Speaker 1: they decided the case then that they would have decided

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Speaker 1: that separate but equal was constitutional and racial segregation was constitutional.

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Speaker 1: But Chief Justice Vincent died and Earl Warren was appointed

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Speaker 1: by President Eisenhower to replace him, and Warren was the

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Speaker 1: one who then led the discussion inside the court that

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Speaker 1: wound up producing a unanimous vision in brown view board

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Speaker 1: of education. And I think that Warren himself learned from

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Speaker 1: his own experiences in life. I mean, during the Japanese

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Speaker 1: internment during World War Two, Warren, as at Trinity General

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Speaker 1: of the State of California, supported that, and later in

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Speaker 1: his life he came to regret that. And I think

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Speaker 1: he became aware of the fact that it's possible to

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Speaker 1: make mistakes and it's important to think hard about things.

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Speaker 1: And I think he brought that to the court in

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Speaker 1: a very specific way. And the court did evolve over time.

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Speaker 1: It evolved in part because the justice his own views

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Speaker 1: changed over time as they worked with one another and

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Speaker 1: thought these issues too. Partly it changed because of the

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Speaker 1: makeup of the court, which gradually changed. So by the

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Speaker 1: end of the Warrant Court there were justices had been

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Speaker 1: appointed like Thurgood Marshall and um Arthur Goldberg, a Fortist,

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Speaker 1: who were more liberal than many of the justices who

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Speaker 1: are on the court in the beginning. So a number

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Speaker 1: of factors came into play for the evolution of the

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Speaker 1: Warrant Court. Part of it was Warren's leadership. Part of

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Speaker 1: it was the fact that the justice has generally worked

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Speaker 1: together very well to figure these things out. And there

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Speaker 1: it is also the case that over the course of

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Speaker 1: the tenure of the War in Court, that they were

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Speaker 1: appointments by later presidents, including Lyndon Johnson for example, that

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Speaker 1: we were more liberal than some of the justices is

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Speaker 1: originally on the court. You picked twelve cases important decisions,

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Speaker 1: of monumental decisions perhaps of the War in court. Besides

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Speaker 1: Brownie Board of Education, which we've talked about. What case

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Speaker 1: would you choose as the next most significant. It's a

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Speaker 1: very interesting question because there were several candidates for that.

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Speaker 1: I think I would probably say the one person, one

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Speaker 1: boat decision. And here's here's why that was significant. At

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Speaker 1: the time that that case was decided, you had a

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Speaker 1: situation in many states in the United States where rural

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Speaker 1: areas had overwhelming power in the state legislatures. And the

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Speaker 1: reason they had overwhelming power was that the district lines

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Speaker 1: had been drawn at a time when these states were

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Speaker 1: predominantly rural and the cities were small or barely existed

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Speaker 1: at all. And and over the course of the first

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Speaker 1: half of the twentieth century, the country became a lot

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Speaker 1: more urban, but the district lines weren't redrawn. So a

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Speaker 1: district that had one representative would still have one in

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Speaker 1: nineteen sixty. And that one district might be, you know,

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Speaker 1: the city of Memphis, or it might be some county

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Speaker 1: in rural county in Tennessee that was rapidly depopulating, and

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Speaker 1: that pattern was very common, and the result was that

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Speaker 1: rural legislatures, rural legislators exerted disproportionate power in their in

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Speaker 1: their legislatures, and and the disproportion was unbelievable. Sometimes you

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Speaker 1: would have a district with tens of thousands the number

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Speaker 1: of people with the same number of representatives as another

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Speaker 1: a smaller district, and the Warring Court said, you can't

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Speaker 1: do that. One person, one vote. Districts of the same

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Speaker 1: population should have the same representation in the state legislature.

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Speaker 1: And the reason I guess I wanted to highlight that

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Speaker 1: is there's a concern on the national scene today that

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Speaker 1: our country is similarly skewed. The National Legislature Congress, which

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Speaker 1: just this piece is embedded in the constitution. There's nothing

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Speaker 1: you can do about it. Except amend the constitution. There's

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Speaker 1: a similar skew where power that once was fairly apportioned

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Speaker 1: is now disproportionately disadvantaging urban areas and advantaging rural areas.

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Speaker 1: And the Warrancourt saw that's not healthy. That's not a

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Speaker 1: healthy thing for a country committed to democratic ideals to do,

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Speaker 1: and it did something about it. At the time it

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Speaker 1: did it, it was quite quite revolutionary and sparked a

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Speaker 1: real backlash. Um that died out pretty quickly because the

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Speaker 1: underlying principle was so obviously appealing. But I guess, of

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Speaker 1: decisions if you have to take besides the race decisions

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Speaker 1: like found against support of education, loving against Virginia who

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Speaker 1: said there's a constitutional right to marry a person at

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Speaker 1: a different race, Apart from the race decisions, which I

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Speaker 1: think are clearly the most important things to Warrancourt did.

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Speaker 1: It's kind of visionary commitment to what it means to

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Speaker 1: be a government by the people for the people of

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Speaker 1: the people. I think I would pick I would pick

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Speaker 1: that as as its most important achievement. Jeffrey, your turn.

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Speaker 1: I guess the change in the criminal justice system brought

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Speaker 1: about by the Warrant Court Um, the system we had

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Speaker 1: before the Warrant Court UM was one in which criminal

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Speaker 1: defendants who could not afford to hire a lawyer themselves

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Speaker 1: simply had no legal representation UM. If police officers engaged

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Speaker 1: in unconstitutional searches that could use the evidence in court

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Speaker 1: against the individual whose rights were violated UM, and individuals

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Speaker 1: who were interrogated UM could be put in isolation, could

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Speaker 1: be subjected to various degrees of physical um UH maybe

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Speaker 1: torture even in the worst cases, and their statements, excepted

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Speaker 1: in the worst cases, could be used against them, even

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Speaker 1: though there are provisions of the constitution that give you

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Speaker 1: right to counsel, that give you a right not to

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Speaker 1: incriminate yourself. And what the Warrant Court did was to

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Speaker 1: give was to breathe life into those guarantees. Gideon be Waynwright.

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Speaker 1: It held a criminal defendant who could not afford legal

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Speaker 1: counsel UM does not have to represent himself, but can

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Speaker 1: has a constitutional right to have an appointed counsel to

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Speaker 1: assist him and UM. In Miranda, the court held that

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Speaker 1: if you're being interrogated by the police, you have a

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Speaker 1: right to be warned of your right to remain silence,

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Speaker 1: and if you can't afford right a lawyer, you have

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Speaker 1: a right to have one appointed UM. And in MAP

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Speaker 1: the Ohio, the Court said that evidence obtained in an

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Speaker 1: unconstitutional search that violent supports Amendment UM cannot be used

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Speaker 1: UM in a criminal proceeding against the individual whose rights

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Speaker 1: were violated. Those were fundamental transformations of the criminal justice

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Speaker 1: process that made the justice process UM more legitimate, more

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Speaker 1: fair UM. And even though there was lots of criticism

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Speaker 1: of those decisions at the time on the ground that, oh,

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Speaker 1: criminals are gonna go free, and this is gonna lead

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Speaker 1: to a huge increase in in unlawful behavior and police

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Speaker 1: officers who are going to be put in a position

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Speaker 1: where they can't be effective. Over time that largely disappeared,

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Speaker 1: and for the most part, the society, the police, and

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Speaker 1: the courts have come to understand that these were all

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Speaker 1: important innovations that protected fundamental Constitution rights that previously had

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Speaker 1: been ignored. Now the way the Supreme Court justices are

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Speaker 1: chosen nowadays, you know, down partisan lines, Jeff, do you

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Speaker 1: think that we will ever see a type of war

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Speaker 1: incourt again. One of the things that made the Warrancourt

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Speaker 1: interesting is that the justices on the Warrancourt did not

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Speaker 1: in their ideological views did not correlate with any particular

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Speaker 1: party or Warrant was appointed by Dwight Eisenhower, Republican. William

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Speaker 1: Brennan was appointed by Eisenhower, a Republican, And at the

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Speaker 1: same time they were justices who were appointed by Democratic

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Speaker 1: presidents like Tom Clark and Felix Frankfurter, who were much

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Speaker 1: more conservative, and so the court was not one that

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Speaker 1: was identified in any credible way as partisan. They weren't

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Speaker 1: Republican justices and Democratics are this is whose views correlated

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Speaker 1: with the views of the parties. Today that's not the case.

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Speaker 1: Today we have nine justices, five appointed by Republican presidents,

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Speaker 1: all of whom are very conservative and consistently vote in

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Speaker 1: the ways that correlate with the Republican Party's values, and

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Speaker 1: four who are appointed by Democratic presidents who tend to

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Speaker 1: be more liberal in that respect, and that really undermines

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Speaker 1: I think an important part of the integrity of the

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Speaker 1: Court and the idea of the Court is to have

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Speaker 1: individuals who are doing their best in good faith to

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Speaker 1: give objective, fair minded meaning through these ambiguous, considual provisions,

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Speaker 1: not colored by the partisan political views right now that

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Speaker 1: core understanding of the Court has been undermined, and I

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Speaker 1: do think it's a challenge to see whether we can

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Speaker 1: get past this. It's not obvious to me we can.

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Speaker 1: And finally, David, is the Warrant Court the last great court?

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Speaker 1: I think it is the last court that had a

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Speaker 1: clear vision for America and and the right kind of

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Speaker 1: vision for America. And I think the Court since then.

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Speaker 1: You know, they're some decisions they've had that I think,

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Speaker 1: I write, some decisions I have they're not right, But

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Speaker 1: I don't think any of them has had a coherent

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Speaker 1: idea of what it is that the Supreme Court should

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Speaker 1: be doing in American life, and certainly not the idea

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Speaker 1: that the Warrant Court had that the Supreme Court's business

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Speaker 1: is to look out for people who aren't getting a

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Speaker 1: fair shake elsewhere in the in in our democracy. Thanks

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Speaker 1: to both of you. That's Jeffrey Stone and David Strauss

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Speaker 1: of the University of Chicago Law School, And that's it

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Speaker 1: for the decsition of Bloomberg Law. I'm June Brassel. Thanks

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Speaker 1: so much for listening, and remember to tune in to

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Speaker 1: The Bloomberg Law Show weeknights. At ten DM easterns right

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Speaker 1: here on the Bloomberg Radio