Morton J. Horwitz.
The Warren Court and the Pursuit of Justice.
A Critical Issue Series. New York: Hill and Wang, 1998. xii + 132 pp.
Appendix, bibliography, index. $18.00 (cloth), ISBN 0-8090-9664-1 .
R. B. Bernstein , New York Law School.
the Faded Banner
When Chief Justice Earl Warren stepped down from the United
States Supreme Court in the fall of 1969, the vast majority of today's
American undergraduates and law students had not yet been born. Since
Warren's death, we have had
two Chief Justices, each in different ways hostile to his legacy and his
juridical methodology, and we have had dozens of historical and polemical
attacks on him as a judge and an interpreter of the Constitution. Warren's
three admiring biographers--G. Edward White, the late Bernard Schwartz,
and Ed Cray --have
tried to stem the tide of denigration, but for the most part only Brown
v. Board of Education is still generally hailed as an admirable
landmark in American constitutional history--and not even Brown has been
immune to doctrinal and jurisprudential criticism. Perhaps, as Arthur M.
Schlesinger Jr., wrote in the first volume of his The Age of Roosevelt,
twenty years is long enough to allow the passions first of idolatry and
then of detraction to die down and a more constructive, nuanced
interpretation to emerge. By all appearances, The Warren Court and the
Pursuit of Justice aspires to present such an interpretation.
The book under review has significance in two differing
ways. First, it presents itself as a concise, accessible history and
interpretation of the Warren Court and its legacies--something greatly
desired in resources for the rising generation of law students and college
undergraduates already mentioned. Second, it is the latest book by Morton
J. Horwitz, the Charles Warren Professor of History and Law at the Harvard
Law School, probably the most renowned American legal historian of our
time. Reviewers of The Warren Court and the Pursuit of Justice will
be tempted to assess it by reference to both contexts. It is necessary,
however, to disentangle them. Therefore, this review focuses only on the
first context; I leave it to others to assess this study in the context of
Horwitz's evolving scholarship.
Warren Court and the Pursuit of Justice
is the latest installment in Hill and Wang's admirable "Critical Issue"
series. Each volume in this series is about 150 pages in length (having no
footnotes or endnotes but presenting terse bibliographies or bibliographic
essays). Each book either opens a major historical problem to fresh
or defines and
explores a historical issue previously overlooked by historians.
Warren Court and the Pursuit of Justice,
Horwitz carves out a daunting task: he proposes to assess the legacy of
the most controversial Supreme Court of the twentieth century--perhaps of
all American history--in just 115 pages of text. Inevitably he has faced
the need to be selective. Still, this book is more a series of ruminations
on the Warren Court, on the challenges it confronted and the challenges it
met, and the history it made than a comprehensive distillation of the
Horwitz begins by establishing his cast of characters--introducing the
Justices who composed the
He devotes his second chapter to the two cases that made up Brown v.
Board of Education (1954 and 1955); Horwitz argues that the Brown
cases were "the themes of the Warren Court." Chapter Three considers the
Warren Court's continuing engagement with the civil rights movement and
the different kinds of cases that that movement spawned, including issues
of First Amendment rights of free speech and press, civil disobedience and
mass protest, and the Fourteenth Amendment's guarantee of equal protection
of the laws. Chapter Four focuses on the Court's struggles with issues
posed by McCarthyism and federal and state government campaigns against
Communism. Chapter Five traces how the Warren Court wrestled with the task
of reconciling constitutional law with evolving democratic theory in such
issues as criminal procedure, reapportionment, and the "state['s] positive
duty to provide its citizens with the conditions for individual
self-development" (p. 89). Chapter Six, which focuses on "democratic
culture," explores such thorny and contested areas as the law of
obscenity, symbolic speech, and the right to privacy. Chapter Seven
concludes the book.
Chapter One, "Constituting the
emphasizes Horwitz's protagonists--the Warren Court Justices devoted to
"the pursuit of justice"--over his antagonists--the conservative members
of the Court. Earl Warren, Hugo L. Black, William O. Douglas, William J.
Brennan, Jr., Arthur J. Goldberg, Abe Fortas, and Thurgood Marshall each
receive lovingly detailed capsule biographies (pp. 5-12), whereas Horwitz
disposes of Felix Frankfurter, John Marshall Harlan the younger, Potter
Stewart, and Byron White in one brisk paragraph (pp. 13-14). This
disproportion in biographical attention is notable in light of the book's
appendix, which outlines the changes in personnel among the Justices
between 1953 and 1969. We realize that the Justices whom Horwitz hails as
the Warren Court dominated the Court for only two terms (1967-1968 and
important, Horwitz's approach denies the reader the chance to see how the
Court and its internal arguments over the major issues of the Warren era
evolved over time. The reader gets no opportunity to understand the
give-and-take that necessarily resulted as Justices joined or left the
Court, except as Horwitz mentions in passing such changes and interactions
in his discussions of specific subjects. Moreover, Horwitz makes the
interesting point that each of his protagonists can be understood as a
social, educational, or political outsider, and a majority of outsiders on
the Court may well explain the Warren Court's refusal to accept the
settled condition of American life. However, the leading dissenter from
the Warren Court's pursuit of justice, Felix Frankfurter, was--and saw
himself as being--as much a social, religious, and ethnic outsider as any
member of the Warren Court's majority. (Though Horwitz perhaps sees
Frankfurter as an insider due to his distinguished career as a law
professor and New Dealer before he joined the Court in 1939, he nowhere
explains his reasons.)
Horwitz's account of Brown, though a useful synthesis of much of
the leading scholarship by such historians as Mark Tushnet and Richard
Kluger, poses problems for the lay reader because we lose sight of the
Court for pages at a time. Thus, his discussions of Brown and (in
Chapter Three) of the civil rights movement feel as if they have been
transplanted from a different book. To be sure, even the most activist
Court is the prisoner of its docket, and it is as important to know how
cases reached the Justices as how the Justices dealt with them. Even so,
given the constraints of compression and series format that shaped the
writing of this book, Horwitz's account of Brown and later cases
generated by the civil rights movement seems unfocused and diffuse.
most significant and astonishing omission from Horwitz's account of the
Warren Court is any discussion of the Warren Court's church-state
decisions. Such Establishment Clause cases as Engel v. Vitale
(1962) and Abington Township v. Schempp (1963), which respectively
struck down required school prayer and Bible reading in public schools,
sparked vehement criticism of the Warren Court from citizens, politicians,
and some legal scholars. Moreover, the Court's decision in Sherbert v.
Verner (1963) is the root of all modern decisions construing the Free
Exercise Clause. Perhaps Horwitz omitted this sphere of constitutional law
because it was not truly original with the Warren Court, having its roots
in earlier decisions of the Hughes, Stone, and Vinson Courts. The same
could be said, however, of the areas of civil rights, equal protection,
and criminal procedure, which Horwitz does stress. Further, early in his
study (pp. 3-4), Horwitz himself concedes the risks of artificial
final test of this book, however, is whether Horwitz has succeeded in his
stated goal of showing that the
"managed to leave a lasting legacy of progressive interpretations of the
Constitution, interpretations that even when subsequently overturned,
continue to inspire future generations of judges, lawyers, and students
(p. xii)." For decades, the Warren Court has endured vehement criticism
from conservative and right-wing politicians and legal scholars. Such
scholars as Raoul Berger, Earl M. Maltz, Christopher Wolfe, and the late
Philip Kurland and Alexander M. Bickel all have assailed the Warren Court
for its judicial activism, in particular its supposed eagerness to set
aside precedent and its alleged propensity to make law rather than to
Horwitz offers a spirited, ardent defense of the Warren Court as a
defender of democracy and revitalizing force for democratic values. He
addresses this defense to a generation that has no direct experience of
the history that Court made and that regards the
decisions as one with Marbury v. Madison (1803). No longer is the
Supreme Court the epicenter of American reform; no longer does it define
the leading edge of progress in American life; no longer are the Justices
engaged in the quest for justice that Horwitz identifies and celebrates as
the central theme guiding the Warren Court. Indeed, when we recall his
intended audience, Horwitz's book takes on coherence it otherwise lacks.
Horwitz seeks not only to retell what a cynic might dub the bedtime
stories of American legal liberalism
--he seeks to raise its faded banner anew. (This emphasis explains,
among other things, the many passages of this book in which the Court
disappears from view. In those pages, Horwitz establishes the contexts of
a series of battles for justice, bringing the Court back in so that it can
strike the appropriate blow for justice in the given issue or
Unfortunately, Horwitz's vision of the
Warren Court as a band of judicial
worthies engaged in the pursuit of justice and the spreading of democracy
throughout American life is too superficial and monochromatic. By
presenting a version of the Warren Court's history skewed in favor of the
pursuers of justice and slighting those whom he classifies outside that
camp, Horwitz tells a less interesting, enlightening, and persuasive story
than he could have presented. One reason why (at least for this battered
adherent of legal liberalism) the Warren Court's achievements still have
value and relevance is that the Court's leading decisions both emerged
from and derived their legitimacy from a judicial process that exemplified
open, robust disagreement and debate.
That process of judicial decision-making does not emerge from this book,
and that omission saps the legitimacy and persuasiveness of the great
cases that compose the Warren Court's legacy and of Horwitz's account of
Furthermore, disputes growing out of the relationships between substantive
goals and procedural means persist in scholarly, political, and popular
controversies over the role of the Supreme Court in American government.
If anything, these controversies--over judicial activism versus judicial
restraint, for example--have intensified the problematic nature of the
Warren Court's place in the history of American constitutionalism. Again,
unfortunately, these questions receive only fleeting treatment in
The Warren Court
and the Pursuit of Justice
(p. 112). At bottom, Horwitz's failure to engage with and to recount the
Warren Court's intellectual and jurisprudential processes and the
controversies surrounding them are the Achilles' heels of this book.
grateful to Danielle J. Lewis, Greg Mark, I. Scott Messinger, Andrew
Siegel, and Howard Venable for their advice and support.
Edward White, Earl Warren: A Public Life (New York: Oxford
University Press, 1982); Bernard Schwartz, Super Chief: Earl Warren and
His Supreme Court (New York: New York University Press, 1983); Ed
Cray, Chief Justice: A Biography of Earl Warren (New York: Simon &
since the appearance of The Transformation of American Law, 1780-1860
(Cambridge, Mass.: Harvard University Press, 1977), and its winning of the
1978 Bancroft Prize in American History, Morton J. Horwitz has been the
legal historian best known to mainstream historians outside legal
academia. Horwitz's 1977 volume, and its sequel, The Transformation of
American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York:
Oxford University Press, 1992), have been widely and respectfully cited.
Indeed, Transformation is probably the best-known work of American
legal history of its time. To be sure, many scholars have criticized
Horwitz's findings and interpretations from a variety of perspectives.
Nonetheless, Horwitz's work continues to be influential and inspiring to
many legal historians.
Horwitz is now writing the volume in the Oliver Wendell
Holmes, Jr., Devise History of the Supreme Court of the United States
devoted to the Warren Court. It is not clear whether The Warren Court
and the Pursuit of Justice is a preview or a byproduct of this larger
project. We can say, however, that Horwitz is moving in his work from his
previous focus on private law to a new emphasis on public, particularly
constitutional, law. Ironically, following Horwitz's lead in The
Transformation of American Law, 1780-1860, mainstream historians have
taken more and more account of private law, and of jurisprudence as built
on and dealing with private law. Horwitz, by contrast, is now heading back
to public and constitutional law and to jurisprudence as engaged with
those spheres of law.
Betty Wood, The Origins of American Slavery (New York: Hill and
Richard White, The Organic Machine (New York: Hill and Wang, 1995).
Laura Kalman, The Strange Career of Legal Liberalism (New Haven:
Yale University Press, 1996).
be sure, the Justices of the Warren Court carried out this process within
the boundaries of the American jurisprudential version of center/liberal
political and cultural discourse. To us, a generation later, these bounds
may seem constricted, but they were broad enough for vehement conflict
within that perceived consensus.
Library of Congress
Call Number: KF8742.H67 1998
* United States. Supreme Court -- History.
* Law and politics.
* Warren, Earl 1891-1974.
Citation: R. B. Bernstein . "Review of Morton J. Horwitz,
The Warren Court and the Pursuit of Justice," H-Law, H-Net Reviews,
October, 1998. URL:
“Horowitz’s small book
summarizes well what has become the standard view of the Warren Court’s
historical legacy…The problem is that [Horowitz] underestimate[s] the
Court’s long-term connection with liberalism reaching back to the 1930’s
and 1940’s, thereby obscuring the degree to which the Warren Court
represented in the 1950’s and 1960’s a consummation of the national
liberal consensus. Horowitz thus recognizes the Warren Court’s
fundamental contribution to American liberalism, but does so
Tony Allan Freyer, review
of The Warren Court and the Pursuit of Justice, by Morton J.
Horowitz, Reviews in American History 27 (March 1999): 133-139.