We just marked the 50th anniversary of the end of the Warren Court, and that naturally led my co-author and colleague, David Strauss, and me to the judgment that this is an appropriate time to reflect on the contributions and legacy of the Warren Court. Beyond that, though, for more than half-a century the Warren Court has been demonized by political conservatives with accusations of rampant and irresponsible judicial activism, and claims that the justices of the Warren Court abused their authority in order to impose their political values on the nation in the guise of constitutional interpretation. Our view is that those criticisms are unfounded and dangerous to our understanding of the core responsibilities of the Supreme Court in our democratic system. It was time to set the record straight.
The title of our book is Democracy and Equality: The Enduring Constitutional Vision of the Warren Court. That is the title for a reason. The central responsibility of the Supreme Court in our governmental system is to provide a check on majoritarian abuse. The whole point of having rights guaranteed in our Constitution — whether it is freedom of speech, freedom of the press, freedom of religion, freedom from unreasonable searches and seizures, right to the assistance of counsel in criminal cases, or the right to equal protection of the laws, to cite just a few examples — is because the Framers embraced, but also distrusted, democracy.
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