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Vanderbilt Law Review

Suzanna Sherry

First Page

459

Abstract

It is accepted wisdom among constitutional law scholars that the Supreme Court is now considerably more conservative than it was during the tenure of Chief Justice Earl Warren. In this Article, I hope to suggest that the conventional wisdom is at least partly wrong. In Part I, I suggest that many of the current Court's so-called conservative cases and doctrines are direct descendants of Warren Court cases and doctrines. Although my attribution of similarity is new, the description of the cases and doctrines themselves is entirely unoriginal. Indeed, the history of the two sets of cases-of the Warren Court and the current Court-could be drawn from almost any basic textbook in constitutional law. The interesting question, then, is why the obvious parallels have escaped most observers. In Part II, I explore why we cling to the myth that the current Court is much more conservative than its predecessor.

I begin with two definitional caveats. To canvas the entire scope of the Warren Court---or of the current Court, for that matter-would be a massive task. Instead, I will limit this Article to a few salient areas of law. The Warren Court is known primarily for its championship of individual liberty and racial equality. Even much of the vaunted "Due Process Revolution"-enlarging the rights of both criminal defendants and civil litigants-found its genesis in racial equality. The Equal Protection Clause was the centerpiece of the Court's equality jurisprudence. The paradigmatic protection of individual liberty is the Free Speech Clause of the First Amendment, which first received its most expansive interpretations at the hands of the Warren Court. Thus, I will focus on the jurisprudence of those two clauses.

There is also the question of timing. Earl Warren retired in 1969, but for purposes of examining the "liberal" jurisprudence of the Warren Court, Warren's actual tenure is not wholly relevant. After all, both Roe v. Wade and the cases extending heightened scrutiny to gender discrimination-key liberal holdings-were decided after Warren Burger became Chief Justice. And of the Justices still on the Court, the conservative Rehnquist was appointed in 1972 and the liberal Stevens in 1975, so things must still have been in flux at that time. Thus, although I will focus primarily on cases decided between 1954 and 1969, I will include a few cases up through 1976-trying always to pick cases that continued earlier trends, and examining individual Justices' votes to emphasize the continuity with Warren Court decisions.

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