Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 2

Former Chief Justice Earl Warren

1953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969.

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.

1989—The Texas supreme court rules (in Edgewood Independent School District v. Kirby) that the state constitutional provision that requires the legislature to “establish and make suitable provision for the support and maintenance of an efficient system of free public schools” forbids the existing system of financing public education—which relies significantly on local district financing—and instead requires that the “funds available for education be distributed equitably and evenly.” The court’s gauzy standard will create (in the words of one analyst) a “quagmire of endless litigation.”

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