NOTES

Tushnet – The Politics of Constitutional Law

 Mark Tushnet (1945-) – leading scholar of constitutional law and legal
history and William Nelson Cromwell Professor of Law at Harvard Law
School
o Judicial review should be strongly limited and the Constitution
should be returned “to the people”.
 Lucas A. Powe Jr. (1943-) – author of The Warren Court and American
Politics
 Earl Warren (1891-1974) was the 14th Chief Justice of the United
States (1953-1969) and earlier as the 30th Governor of California
(1943-1953).
o Warren Court – period in US Supreme Court history when
Warren served as Chief Justice
 Led a liberal majority that expanded civil rights, civil
liberties, judicial power and federal power
 Brown v. Board of Education, US landmark case, racial
segregation in public schools was unconstitutional
 Incorporated the Bill of Rights
 Gideon v. Wainwright, US landmark case, criminal
defendant’s right to an attorney in felony cases
 Gideon committed larceny in Florida in 1961 and was
too poor to afford a counsel, was then convicted
after pleading innocence by himself
 Wainwright was Secretary of the Florida Department
of Corrections
 Fortas, representing Gideon argued that even
Clarence Darrow, the greatest criminal lawyer in the
US needed an attorney when he was charged with
jury tampering, how much more for a man without
any legal education
 Miranda v. Arizona, US landmark case, Miranda rights,
required police officers to give a warning to criminal
suspects
o Warren Commission – investigated the assassination of J.F.
Kennedy
 US Marine Oswald, acting entirely alone, killed Kennedy
during a motorcade
 TWO MAJOR THEMES OF PROFESSOR POWE’S ACCOUNT OF THE
WARREN COURT
 o 1 - Periodization that divides the Warren Court into three
segments
 First period – from Warren’s 1953 appointment and the
initial decision in Brown v. Board of Education (1954)
through the 1956 term, the Court moved in a liberal
direction
 Second period – stalemate, Brown and the Court’s
national security decisions provoked strong reactions in
national politics
 Arkansas governor Orval Faubus attempted to defy
Brown and provoked the Little Rock school crisis
o Prevented the Little Rock Nine, a group of nine
African American students, from entering Little
Rock Central High School in 1957
 Congress proposed to restrict the Court’s jurisdiction
o Because Justice Felix Frankfurter was
traumatized by what he saw in Congress,
Warren was unable to assemble a liberal
majority
o But Frankfurter might have turned
conservative because of age rather than
mental trauma - Tushnet
 Third period – march (of liberalism) resumed because
of liberal appointments by President JFK and President
Lyndon Johnson.
o 2 - Importance of race and the South in the Warren Court’s work
 At its core, an attack on the values associated with
the 1950s South
 “The geography of constitutional violations is the South by
an overwhelming margin.”
 Countermajoritarian thrust of judicial review exercised by the Warren
Court
 Two questions of quantifiers in Political Science (scientific scholars)
o To academic lawyers: When you operate in normative mode, you
reached decision X because the law required it; In explanatory
mode, because that’s what the majority thought the law required
 Legal model – justices do what they do because they
think the law requires it
o To interpreters: You say that justices reached decision X because
of ideology but you infer it from their decisions, that’s circular,
there must be a model determining extra-legal factors
 Relation between politics and the Supreme Court: Supreme Court
affects American politics and vice versa
 General form of how the Supreme Court affects American politics:
Court makes a decision -> Congress discusses -> Congress introduces
bills in response to it -> Congress incorporates the Court’s decisions in
political campaigns
 THREE EXAMPLES OF THE SUPREME COURT AFFECTING POLITICS
o 1- Red Monday, June 17, 1957, Court hands down four
decisions restricting the ability of governments to investigate
activities of members of the Communist party -> Congress
denounced the Court for “going too far” -> Congress responds
with Jencks Act which the accepted the core of the Court’s
holding -> Congress came close to passing legislation that
restrict judicial review on domestic security
o 2 – Nomination of Abe Fortas to succeed Earl Warren, During
the nomination hearings, Senator Thurmond referred to the
1957 Court decision that confessions made with unreasonable
delay cannot be admitted as evidence where Mallory who
admitted rape was let loose on a technicality -> “Abe Fortas Film
Festival”, compilation of clips from sexually explicit films
protected by the Court was shown by a witness
o 3 – Court’s protection against self-incrimination through
confession -> legislation was introduced to require that courts
admit into evidence all voluntary confessions -> Nixon, during
presidential campaign, said that the Court weakened the peace
forces against criminal forces
 Reasons have two meanings:
o Reasons in a justificatory sense – decisions based from the law
o Reasons in a causal sense – causal factors
 Brown v. Board of Education – extra-legal factors outside Warren
Court’s asserted reasons (e.g. legal, personal, psychological, social,
political constraints)
 TWO WAYS POLITICS CAN AFFECT SUPREME COURT DECISION-
MAKING
o 1 – Justices as politicians seeking to implement the policies that
they prefer
o 2 – Justices have political preferences, liberal or conservative
 Justices as strategic actors
o Derailing convictions of civil rights demonstrators saying that
Congress is in the process of passing civil rights bill
 o “Peace offerings” to Congress, deciding that invoking right
against self-incrimination can still fire suspected communists
 CONCLUSION: Liberals during the Warren Court era acted the way
they did due to abundantly varied reasons to advance their
progressive advocacies