At the Fifth Circuit Judicial Conference in Austin, Texas, on Friday, Justice Brett Kavanaugh heaped an unsettling amount of praise on the Warren Court. No video or full transcript of his comments is publicly available, but the Associated Press reported that in response to a question about how judges can help increase confidence in the judiciary, Kavanaugh praised a wide range of prominent decisions decided by the earlier Court. “The Warren court was no picnic for the justices. . . . They were unpopular basically from start to finish from ’53 to ’69,” he was quoted as saying. “What the court kept doing is playing itself, sticking to its principles. And you know, look, a lot of those decisions [were] unpopular, and a lot of them are landmarks now that we accept as parts of the fabric of America, and the fabric of American constitutional law.”
Sure, the Warren Court issued numerous decisions that ended up having lasting influence in a variety of areas. But sticking to principles? That Court earned notoriety for regularly engaging in judicial legislation, with majorities of justices regularly employing specious reasoning to reach decisions that read as if they followed policy preferences more than rigorous legal analysis. In Engel v. Vitale (1962), the Court took liberties with the Establishment Clause in order to invalidate voluntary and non-denominational school prayer. The capstone of the Warren Court’s revolution in criminal procedure, Miranda v. Arizona (1966), had no compunction about requiring police warnings to be read to criminal suspects despite the lack of grounding in the Constitution for its holding. It was enough that the outcome was desirable. The same was true of the Court’s ahistorical, atextual analysis of the Fourteenth Amendment to justify heavy-handed judicial intervention in legislative redistricting. And while there were separate concurrences agreeing on other grounds with the Court’s conclusion in Griswold v. Connecticut (1965) about the right to marital privacy, the majority opinion invoked “penumbras, formed by emanations from” the guarantees in the Bill of Rights—a phrase so transparent in its desperation to find a supporting pretext that it has been rightly ridiculed for generations.
The Warren Court’s influence was indelible, but it also was an unmistakable part of the process described decades later by a dissenting Justice Antonin Scalia: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” The Burger Court, which immediately followed the Warren Court, would in short order take the activist trend forward, with decisions that included the Establishment Clause–distorting Lemon test, invalidation of every existing death penalty statute in the nation, and, of course, Roe v. Wade.
None of this is to overlook that the Warren Court in 1954 marked one of the highest points in the Supreme Court’s history with its invalidation of school segregation in Brown v. Board of Education—a decision Justice Kavanaugh referenced in his comments at the judicial conference. Unfortunately, even that decision famously invoked changing and disputed trends in psychology and social science when it could have more directly abrogated the “separate but equal” holding of Plessy v. Ferguson with originalist analysis.
Further activism based on ever-fluid conceptions of law would in later years undermine Brown with judicial tolerance of a different strain of racial discrimination in university admissions, a trend Kavanaugh helped undo last year. And to his credit, he criticized the “freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition” prior to his nomination to the Court and later cast a critical vote to overturn Roe. He also formed an essential part of the modern Court’s renewed protectiveness of religious freedom and rejection of groundless attempts to turn the Establishment Clause against religious expression.
It would be one thing if Justice Kavanaugh focused on a decision like Brown, which is worth celebrating. But why the sweeping praise for a wide range of decisions handed down by the undisciplined Warren Court?