The Democratic Party's Court

[Paul Finkelman]

I am sorry I missed the "late WC".  But I wonder if LBJ really cared 
about the issues in Terry.

srbagenstos at wulaw.wustl.edu wrote:

>I did say the late WC.  As to them, what about the redistricting cases, and the cases upholding civil rights statutes (or reading them expansively, like Jones v. Mayer)?  Totally in line with LBJ's program.  Liberals of that era were just divided on crime.  Folks like RFK had the kind of view you might associate today with Bill Stuntz, that crime fighting was liberal, and that crim-pro restraints were for that reason suspect.  That competed with another set of liberal ideas, which emphasized race and police professionalization.  Warren's opinion in terry, which stands right in the middle of those tensions, could have been written by any Great Society Democrat.  (I use Great Society as a shorthand for LBJ's domestic policies generally.)  I just don't think this is a very controversial proposition -- or I didn't.  
>
>I don't really have anything at stake in the argument about whether the late Warren Court was a Great Society Court -- though I think it was.  I do have a bigger beef with just writing off BRW and JFK's views as "illiberal."  Those views have a very respectable pedigree in American liberalism.  They are views that were held by a lot of people who called themselves (and were called by others) liberal at the time.  I don't think we can say that the Democrats on the late Warren Court didn't reflect the liberal Democratic views of their time by showing that they don't reflect the (assertedly) liberal Democratic views of our time.  But that's taking me off-topic for this list, so I should probably stop.
>
>-----Original Message-----
>
>From:  Paul Finkelman <paul-finkelman at utulsa.edu>
>Subj:  Re: The Democratic Party's Court
>Date:  Tue Jun 20, 2006 5:02 pm
>Size:  3K
>To:  Samuel Bagenstos <srbagenstos at wulaw.wustl.edu>
>cc:  Eugene Volokh <VOLOKH at law.ucla.edu>, CONLAWPROF at lists.ucla.edu
>
>Well, the first 11 years of the warren court (1953-1964) took place 
>before there was a "great society program" -- only the last 5 years 
>(64-69) were great society years.  The Great Society was mostly about 
>social welfare and I have a hard time thinking of cases (except maybe 
>Goldberg v. Kelly) that were social welfare cases.  Warren ran cross 
>listed ONLY because he was so popular that he could win both primaries; 
>he was the Rep. Vice Presidential nominee in 1948; how much more of a 
>Republican can you get?  If White was a JFK liberal,  that just shows 
>how 'Unliberal"  JFK was on many issues.  On speech, press, rights of 
>the accused it is hard to see White as a liberal.  Warren, who had been 
>a DA and a state AG knew what happened in the back rooms of police 
>departments, had some respect for the rights of accused.  Same for Black 
>with his police court background.  People with a DOJ background (White, 
>Clark) did not either care what happened the back room or did not 
>understand the issues.
>
>Maybe we should not worry about "liberal" and "conservative" here or 
>party affiliation.  Back to theories of law, rights, coherent 
>jurisprudence, rather than labels.
>
>Samuel Bagenstos wrote:
>
>  
>
>>This is a pretty strange debate to have, isn't it?  It's hard to read
>>the opinions of the late Warren Court and conclude that it was anything
>>other than basically a "Great Society" Court.  See Scot Powe's great
>>book for more.  I don't know what turns on this, anyway, but Brennan was
>>a Democrat, and Warren had at times run on the line of both parties in
>>the California cross-listing system.  I think you have to add Brennan to
>>your list of "consistent democratic liberals," even if he was more
>>tactical than Black and Douglas.  And Warren wouldn't at all be out of
>>place.  Even White's views represented a certain kind of Kennedy
>>liberalism (compare his opinions to RFK's presidential platform).  But
>>again, I'm not sure what the implications of this discussion really
>>are.
>>
>>====================================
>>Samuel R. Bagenstos
>>Professor of Law
>>Washington University School of Law
>>One Brookings Drive
>>St. Louis, MO  63130
>>314-935-9097
>>Personal Web Page: 
>>http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
>>Disability Law Blog:  http://disabilitylaw.blogspot.com/
>>
>> 
>>
>>    
>>
>>>>>Paul Finkelman <paul-finkelman at utulsa.edu> 6/20/2006 12:52 PM >>>
>>>>>       
>>>>>
>>>>>          
>>>>>
>>It is odd to consider the Warren Court the "liberal wing" of the Democ.
>>
>>Party when three of the Dems on it, Frankfurter, Clark, and White, were
>>
>>far more conservative than most some of the Republican nominees. (Clark
>>
>>and White the dems both dissent in Miranda, for example, written by the
>>
>>Republican Warren; they join three Republicans to form the majoirty in
>>
>>Barenblatt); They are part of a six person majority in Roth.  Clark 
>>writes the only dissent in Yates and Watkins.  Black was liberal in
>>some 
>>areas, quite conservative in others (consider his dissent in Griswold).
>>
>>The only consistent democratic liberals on the Court were Douglas (and
>>
>>even he was not all that great in the Jap. Internment cases, but that
>>is 
>>before the "Warren Court) and later Goldberg, Marshall, and then
>>Fortas.  
>>
>>By the way, in my earlier post I forgot the mention the 5th republican
>>
>>on the court, the easily forgettable Charles Whittaker.
>>
>>In race cases the republicans and dems on the Warren court are almost 
>>always unanimious in other areas party and ideology do not appear to be
>>
>>    
>>
>
>--- message truncated ---
>
>
>  
>

-- 
Paul Finkelman
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Starting July 1:

Paul Finkelman
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