What Was Wrong with the Warren Court

The Warren Court, we are told by its ill-informed critics, assumed powers belonging rightfully to other agencies of government, to the states, for example, or to the Congress—political powers, whereas the Constitution limits the Supreme Court to the exercise of “the judicial powers of the United States.” It is said that a Supreme Court that respects these limits is one that confines itself to judging the political decisions of these other agencies by the great and, we are to believe, the obvious principles set down in the Constitution, and that it most emphatically is not one that manufactures principles to suit its own political ends. Hence, the President’s reported intention to fill the vacancy caused by the resignation of Abe Fortas with a law man, a strict constructionist, a Judge Haynsworth or Carswell, in any case, we are assured, a non-political judge.

The distinction of course is not that clear; something in addition to an ability to read the law is required to read the Constitution in the course of exercising the judicial power. John Marshall had a vision of one great nation, and in particular, one great commercial republic extending from “the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific,” and it was this vision, and only this vision, and not the plain or obvious meaning of the constitutional language, that allowed him to see that the power to charter a national bank was “necessary and proper,” and therefore among the constitutional powers of Congress. Jefferson had a different vision, and it was in the light of it, and only in the light of it, and not because of any plain and obvious meaning of the constitutional language, that he concluded that the chartering of a national bank was unnecessary and improper and, in fact, destructive to the “pillars of our whole system of jurisprudence”—in short, unconstitutional.

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Walter Berns

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The Warren Court, we are told by its ill-informed critics, assumed powers belonging rightfully to other agencies of government, to the states, for example, or to the Congress—political powers, whereas the Constitution limits the Supreme Court to the exercise of “the judicial powers of the United States.” It is said that a Supreme Court that respects these limits is one that confines itself to judging the political decisions of these other agencies by the great and, we are to believe, the obvious principles set down in the Constitution, and that it most emphatically is not one that manufactures principles to suit its own political ends. Hence, the President’s reported intention to fill the vacancy caused by the resignation of Abe Fortas with a law man, a strict constructionist, a Judge Haynsworth or Carswell, in any case, we are assured, a non-political judge.

The distinction of course is not that clear; something in addition to an ability to read the law is required to read the Constitution in the course of exercising the judicial power. John Marshall had a vision of one great nation, and in particular, one great commercial republic extending from “the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific,” and it was this vision, and only this vision, and not the plain or obvious meaning of the constitutional language, that allowed him to see that the power to charter a national bank was “necessary and proper,” and therefore among the constitutional powers of Congress. Jefferson had a different vision, and it was in the light of it, and only in the light of it, and not because of any plain and obvious meaning of the constitutional language, that he concluded that the chartering of a national bank was unnecessary and improper and, in fact, destructive to the “pillars of our whole system of jurisprudence”—in short, unconstitutional.