ROBERT SIEGEL, Host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
MICHELE NORRIS, Host:
And I'm Michele Norris.
Forty years ago this month, the chief justice of the Supreme Court, Earl Warren, announced his retirement. And it turned out, he wouldn't leave the court for another year. Republicans filibustered President Johnson's choice to replace Warren; he remained until the new Republican president, Richard Nixon, appointed a new chief justice.
As part of our occasional series Echoes of 1968, NPR legal affairs correspondent Nina Totenberg examines the Warren legacy.
NINA TOTENBERG: Earl Warren arrived at the Supreme Court in the fall of 1953, just three weeks after his predecessor, Fred Vinson, died. Incredibly, he was a recess appointee, meaning his appointment by President Eisenhower was on an interim basis until Senate confirmation six months later. But that didn't stop Warren from immediately grabbing the leadership reins on a court that had been paralyzed over the question of school segregation.
Just eight months after his arrival, Warren delivered an unexpected, unanimous opinion for the court declaring that racially segregated schools were inherently unequal and unconstitutional. It was the beginning of a 20th century revolution in America. A revolution marked by turbulence and resistance for many years.
Here, for example, is Alabama Governor George Wallace giving his inaugural speech in 1963.
(SOUNDBITE OF POLITICAL SPEECH)
SIEGEL: I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, and segregation forever.
TOTENBERG: Warren, however, was undeterred. He was no stranger to politics, having been elected district attorney, state attorney general, and three times governor of California, not to mention the fact that he'd been the GOP candidate for vice president in 1948.
Over a 16-year period, Warren and like-minded justices, several of them former senators and cabinet officers including Southerners, would transform American society in ways unimagined before. Though Warren would be a lightning rod for controversy back then, now, most of what he and his fellow justices did is widely accepted, indeed, even cherished by most Americans, including conservatives.
Pepperdine law professor Douglas Kmiec is a noted conservative legal scholar.
P: Whatever made Earl Warren so controversial in his day, that the John Birch Society would post billboards along country roads urging his impeachment, is today incomprehensible to my students and, frankly, to me.
TOTENBERG: In addition to the court's landmark school desegregation ruling, the Warren Court established the one person, one vote principle, ending rural domination of Congress and state legislatures. It ruled unconstitutional spoken prayer and Bible reading in public schools. Under Warren, whose own father had been murdered, the court revolutionized the criminal law, declaring that key parts of the Bill of Rights limit not just the actions of the federal government, but state governments as well.
The court ruled that a person accused of a felony is entitled to a state-paid lawyer if he can't afford one on his own. It ruled that illegally seized evidence can't be used at trial. And it required that suspects be informed of their legal rights. The warning came to be known by the name of the defendant in the court case, Ernesto Miranda.
(SOUNDBITE OF TV SHOW "LAW & ORDER")
U: Mr. Koblin, you're under arrest for the murder of Marcus Tate. You have the right to remain silent. Anything you do, say, can and will be used against...
TOTENBERG: Though routine even on TV today, the Miranda decision was hugely controversial in its day. And in 1968, after Warren announced his retirement, presidential candidate Richard Nixon made attacking the Warren Court a staple of his stump speech.
(SOUNDBITE OF POLITICAL SPEECH)
NORRIS: Some of our courts in their decisions have gone too far in weakening the peace forces against the criminal forces in this country.
TOTENBERG: Three decades later, Miranda was so widely accepted that then Chief Justice William Rehnquist, a Nixon appointee and once a Miranda critic, wrote the court's decision upholding Miranda as thoroughly workable and firmly established in the fabric of American society.
Scholars of all ideological stripes agree many of the Warren Court's so-called liberal decisions were aimed at the south. Former Solicitor General Walter Dellinger says a lot of criminal law decisions, for instance, were in fact about race.
NORRIS: The Warren Court's liberalism was mainly directed at a completely lawless system in 13 states where African-Americans were excluded from participating not only in government, but in juries and prosecution and being judges.
TOTENBERG: In all spheres of life, the court pushed for racial equality, from desegregating drinking fountains to striking down laws banning interracial marriage. If the Warren Court provided the impetus for racial change, scholars agree, it was Congress that delivered the coup de grace by passing the 1965 Voting Rights Act.
Dennis Hutchinson, editor of the Supreme Court Review at the University of Chicago, notes that the Voting Rights Act gave African-Americans real political power in place of disenfranchisement.
P: Suddenly, blacks are getting elected to public office in the south and becoming sheriffs that that course of Jim Crow justice really begins to change.
TOTENBERG: The Warren Court, too, gets points from conservatives, like federal appeals court judge Michael McConnell, for writing clear opinions with rules that most people can understand, rules like one person, one vote.
J: They were attentive to expressing their holdings in clear and understandable ways that real people are able to comply with.
TOTENBERG: Conservative and liberal scholars also agree that the Warren Court today gets a liberal label that in fact is probably more suitable for the court that followed under the Nixon-appointed Chief Justice Warren Burger.
It was the Burger Court that declared abortion a constitutional right. It was the Burger Court that for several years called a halt to the death penalty as unconstitutional. It was the Burger Court that upheld massive busing and approved affirmative action programs. And it was the Burger Court that took up the call to end discrimination against women.
Again, Pepperdine's Douglas Kmiec.
P: And, in fact, a lot of what gets complained about in terms of judicial activism was not at the hand or the pen of Earl Warren.
TOTENBERG: Former Solicitor General Dellinger served as a Supreme Court law clerk in 1968, and he says, in hindsight, it's not surprising that the court that followed, with four Nixon appointees, was in many ways more liberal.
NORRIS: Because a lot of what the Warren Court accomplished were changes in the society itself that simply couldn't be undone by judicial resolution.
TOTENBERG: The legacy of the Warren Court, nonetheless, is to some degree, as Judge McConnell puts it...
J: A bit of a Rorschach test, because for some it's an almost imaginary romantic past when there was this noble Supreme Court that was doing justice with little regard to expediency and thus, you know, bringing about social change and reform. You know, for others, it's an almost imaginary or at least highly exaggerated vision of a court that was doing politics instead of law and thus distorting what a court is really all supposed to be about.
TOTENBERG: And if every action has a reaction, today's Supreme Court, with two new Bush appointees and a distinctly conservative cast, is something of a reaction to the Warren Court. The modern conservative legal movement was born on campus as a reaction to the Warren era. Several of the court's current members were bred in the cauldron of that movement.
Today's court conservatives are expanding states' rights and corporate rights. They want to accommodate more public religious expression and less separation of church and state. Duly enacted laws are still being overturned, but now it's federal laws, not as many state laws. Supreme Court review editor Dennis Hutchinson.
P: So, in a sense, the Warren Court paved the way for Bush versus Gore. And what I mean by that is once you get in the habit of saying, you know, there's no issue that is incapable of judicial resolution - one man, one vote, and so on - suddenly you can decide a presidential election.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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