The Constitutional Conservatism of the Warren Court

27 Sep 2012 11:22pm Justin Driver 

Scholarly debate about the Warren Court casts a long shadow over modern constitutional law. The essential contours of this debate have now grown exceedingly familiar: where liberal law professors overwhelmingly heap praise upon the Warren Court, conservatives generally heap contempt. Although some liberals have begun contending that the Warren Court overstepped the bounds of judicial propriety, such concessions do not reconfigure the debate's fundamental terms. Conspicuously absent from scholarly discourse to date, however, is a sustained liberal argument contending that the Warren Court made substantial mistakes-not by going excessively far, but by going insufficiently far in its constitutional interpretations. This Article supplies that missing perspective by providing a historically contextualized critique of the Warren Court's jurisprudence, identifying significant opinions in which the Court issued conservative constitutional rulings even though plausible routes led to liberal outcomes. Examining the Warren Court's overlooked tradition of constitutional conservatism not only demythologizes that institution and brings sharper focus to the constitutional past; it may also help to inspire a progressive reenvisioning of the constitutional future.

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