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  Anyone interested in pursuing Warren Court jurisprudence in this area further should read the opinions in Fortner Enterprises, Inc. v. United States Steel Corp. (1969), written during the last term of Warren’s tenure. The plaintiff, a real estate developer, claimed that the steel company and a wholly owned subsidiary that provided financing for the steel company’s customers had engaged in a conspiracy to restrain trade in the sale of prefabricated houses. The complaint alleged that in order to obtain favorable credit terms, the defendants had forced his company to pay an unfair price for prefabricated houses. Whether such an agreement could qualify as an unlawful “tying arrangement” without proof that the defendants had monopoly power in the credit market was the subject of debate between the four dissenting justices (Harlan, Abe Fortas, Byron White, and Potter Stewart), who saw nothing wrong with the arrangement, and a majority that included Justice Douglas, who thought the answer would depend on the evidence developed at a trial. After the plaintiff had prevailed at trial and the judgment awarding damages had been affirmed by the court of appeals, the case returned to our Court. I wrote the opinion explaining our unanimous decision to reverse. That opinion not only endorsed the views expressed by the four dissenters eight years earlier but also, I believe, represented an improvement in this area of the law.

  Earl Warren is entitled to high marks for his opinions interpreting the Constitution. Indeed, at least three of them represented giant strides forward on the road to the formation of a more perfect union: Brown v. Board of Education (1954), invalidating racial segregation in public schools; Reynolds v. Sims (1964), applying the “one person, one vote” rule to the election of state legislatures; and Miranda v. Arizona (1966), requiring state and local law enforcement officers to safeguard the voluntariness of confessions by prefacing their custodial interrogations of suspects with warnings comparable to those that the FBI and the British police used. Each of those opinions was a principled application of constitutional law that correctly rejected earlier precedent.

  The Court heard three separate arguments in the Brown case. The first took place in December of 1952, when Fred Vinson was still the chief justice. After that argument, the justices were divided. There may well have been only four who were prepared to find the segregated schools unconstitutional and extend a remedy to the plaintiffs. Others, including Justice Frankfurter, were committed to dismantling segregation only gradually. Apparently Chief Justice Vinson, Justice Reed, and possibly Justice Jackson would have voted to reject the challenge to segregation. Rather than overcome these internal differences and decide the case—as it usually does after argument—the Court delayed. It ordered the parties to address several questions about the history of the drafting and ratification of the Fourteenth Amendment in a second argument in the next term. In my view, this was a mistake. The equal protection clause of the Fourteenth Amendment states a clear principle: states may not “deny to any person… the equal protection of the laws.” The circumstances of its ratification cannot transform that command of equality into a license for discrimination.

  Because Vinson died before the second argument was held, Earl Warren’s first contact with the case occurred nearly a year after his colleagues had begun their deliberations. Over the next several months, he lobbied his new colleagues to coalesce around a single compromise position. Then, in May of 1954, he announced his unanimous opinion for the Court. On the merits, it was dead right. Warren summarily rejected as an adequate basis for decision the historical analyses that had been the principal subject of the rebriefing and reargument. Relying on a principled and correct interpretation of the equal protection clause, the Court unanimously held that state laws providing segregated public education were unconstitutional. The fact that supporters of the Fourteenth Amendment may not have intended to put an end to segregated grammar school education—or may not have realized that the amendment would do so—does not provide an acceptable reason for limiting the scope of the fundamental principle of equality embodied in the equal protection clause. The Court categorically rejected the “separate but equal” doctrine that had, as we have already seen, been silently accepted in DeCuir in 1878 and endorsed expressly in Plessy v. Ferguson, which in 1896 upheld a state law segregating Louisiana railcars.

  Unlike most admirers of the opinion, I have never been convinced that the benefits of its unanimity outweighed what I regarded as two flaws in the Court’s disposition of the cases. Instead of promptly remanding the cases to the district courts to begin the task of fashioning appropriate relief, the Court restored the cases to its argument calendar and ordered the parties to debate the proper remedy. And a year later, after considering those further arguments, the Court directed the defendants to admit the plaintiffs to public schools on a racially nondiscriminatory basis “with all deliberate speed.” That belated and somewhat tentative command may have done more to encourage resistance to the clear message contained in Earl Warren’s original opinion than would have a possible dissenting opinion joined by only one or two justices.

  Even when a dissenting opinion makes convincing arguments on the losing party’s behalf, responses by the majority may not only clarify and strengthen the Court’s reasoning, but also demonstrate to the public that the dissenter’s views were carefully considered before they were rejected. Moreover, as Thurgood Marshall persuasively argued, experience in Kansas and Delaware indicated that immediate desegregation was feasible. A straightforward injunction ordering the defendants to admit the plaintiffs to specific schools—like the order that the Delaware state court had entered in one of the Brown cases before it reached the Supreme Court—would undoubtedly have presented the trial courts with problems to be resolved on remand. But it would have lent no support to the massive resistance that developed in some states and might have pretermitted the long delays and shortfalls in desegregation that followed the Court’s remedial decision. But though there may have been flaws in the remedial decision, and possibly in the Court’s opinion as well, the decision represented one of the greatest achievements in the history of the Court.

  The “one person, one vote” cases decided in the wake of Reynolds v. Sims had a profound impact on the political process throughout the country. While Chief Justice Warren is appropriately praised for that opinion, he is entitled to credit also for his earlier decision to assign the majority opinion in Baker v. Carr (1962) to Justice William Brennan. That opinion—like his later opinion in New York Times v. Sullivan (1964)—established Brennan’s stature as an exceptional justice. In Baker, the plaintiffs had challenged the constitutionality of a Tennessee districting scheme that did not allocate representation in proportion to population; the statute gave much greater weight to votes in rural areas than to those in urban areas. Relying heavily on the Court’s earlier rejection in Colegrove v. Green (1946) of a similar challenge to a 1901 Illinois statute that gave equal representation to congressional districts that varied in size from 112,000 to 900,000, the federal district court had dismissed the complaint. Justice Frankfurter’s opinion in Colegrove included this famous admonition:

  Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.

  Justice Brennan’s opinion in Baker v. Carr effectively held that weighing some citizens’ votes more heavily than others was a sufficiently serious violation of the equal protection clause to require judges to enter the political thicket. When one considers the extreme disparities in district sizes that cases like Colegrove had revealed, that conclusion was unquestionably correct. Unfortunately, however, some of the Court’s later cases attempting to establish an unattainable goal of complete numerical equality have produced an even more serious threat to the political process than weighing some votes more heavily than others. As the chief justice himself observed in Reynolds: “Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may
be little more than an open invitation to partisan gerrymandering.”

  In his dissenting opinion in Reynolds, Justice Harlan correctly explained that an exclusive focus on the size of electoral districts would almost certainly preclude reliance on other neutral factors and thereby produce the “indiscriminate districting” that is the breeding ground for partisan gerrymandering.

  The “open invitation to partisan gerrymandering” extended in Reynolds was accepted by New Jersey in its reapportionment of the state’s fourteen congressional districts in response to the 1980 census. All of the districts defined by the state legislature were approximately the same size—the smallest had a population of 523,798 and the largest was 527,472. The record made it quite clear that population changes during the period between the date the census was taken and the date of the election would produce greater numerical inequalities than the plan itself. In its opinion in Karcher v. Daggett (1983), the Court nevertheless held that the plan violated the principle of population equality because the state had failed to explain why it had not adopted a plan that included even lesser deviations.

  I wrote a separate opinion explaining why the plan was unconstitutional for reasons unrelated to the number of voters in each district. As a glance at the map attached to the opinion demonstrates, it was an obvious gerrymander. Under our precedents condemning plans that minimize the voting strength of racial or political elements of the voting population, it violated the equal protection clause. I remain especially proud of that opinion despite the fact that none of my colleagues joined it. It relied heavily on an earlier opinion by another lonely justice—Justice Charles Whitaker, an associate justice from 1957 to 1962—who had concluded that a racial gerrymander violated the equal protection clause two years before the Court entered the political thicket in Baker v. Carr.

  In 1960, the Court unanimously held in Gomillion v. Lightfoot that the Alabama statute changing the boundaries of the city of Tuskegee “from a square to an uncouth twenty-eight-sided figure” violated the Constitution because all but a few of the African Americans who resided within the original square were outside the new city limits. No doubt recognizing the tension between that decision and Justice Frankfurter’s earlier warnings about entering political thickets, the chief assigned the opinion to Frankfurter. Frankfurter tried to avoid that thicket by relying on the Fifteenth Amendment’s prohibition against abridging the right to vote on account of race. But as Justice Whitaker pointed out, one person’s right to vote is not abridged by a redistricting that places his residence in a different district because that person still retains his right to cast one vote, albeit within a newly assigned district. Such redistricting does, however, violate the equal protection clause if it is targeted against a racial group. In my judgment, it is equally clear that an uncouth twenty-eight-sided figure that excludes all but a few Republicans from a district in which they previously voted does so as well.

  In 1966, Earl Warren wrote the opinion for the Court in Miranda v. Arizona, mandating that police provide adequate warnings to suspects in custody in order to protect both the citizen’s privilege against self-incrimination and the citizen’s right to counsel during custodial interrogation. Earl Warren’s own extensive experience as a prosecutor must have influenced his decision in that case. Having overseen an office that obtained convictions while affording fair process to the accused, he was no doubt convinced that other professionals could do so as well. In explaining why something like the now-famous Miranda warnings were a necessary safeguard for American citizens, he relied heavily in his opinion on criticisms of the so-called third degree in the 1931 Report of the National Commission on Law Observance and Enforcement, presumably sharing the opinions of the New York prosecutor quoted in the report as saying, “It is a short cut and makes the police lazy and unenterprising,” and another who said, “If you use your fists you are not so likely to use your wits.”

  Miranda may well have been the most controversial opinion that Warren wrote during his tenure as Chief Justice. Four members of the Court—Justices Clark, Harlan, Stewart, and White—dissented because they believed that voluntary confessions should be admissible even if not preceded by warnings. A campaign to overrule the decision immediately followed. In response to that campaign Congress enacted a statute (18 U.S. Code Section 3501) that in essence provided that the admissibility of statements made during custodial interrogation should depend only on whether they were made voluntarily.

  Several years later, in affirming the conviction of a bank robber named Dickerson, a federal court of appeals held that his confession was admissible under the voluntariness standard set forth in Section 3501 even though he had not received Miranda warnings. Dickerson sought review in the Supreme Court, claiming that the Miranda rule was required by the Constitution and therefore could not be changed by statute.

  Before 2000, when the Court heard argument in Dickerson’s case, the Court had repeatedly applied the Miranda rule. For example, the Court definitively reaffirmed Miranda’s core holding in Rhode Island v. Innis (1980), a case authored by Justice Stewart—an original Miranda dissenter. Stewart’s effort secured join votes from Justice White, the other original Miranda dissenter still on the Court, and all four appointees of the president—Richard Nixon—who had campaigned in opposition to Miranda.

  Nonetheless, strong opposition to the decision persisted until the end of the century. Although Chief Justice William Rehnquist had long been a critic of the Miranda decision, he wrote the Court’s opinion in the Dickerson case that not only refused to overrule Miranda but also held that Congress’s attempt to do so by enacting Section 3501 was unconstitutional. In explaining this position, he stated that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

  People who enjoy watching movies that date back to the era of silent films are qualified to assess the cultural change that Miranda produced. In the years prior to the Miranda decision, it was the ham-handed, bumbling Keystone Kop that most frequently appeared in the movies; now, however, the police officer is usually and appropriately portrayed as a well-trained professional public servant. Today the typical officer is neither a bumbler nor an inquisitor who uses his fists rather than his wits.

  The Miranda opinion unquestionably played a major role in improving the quality of police forces throughout the nation. It also, as Warren there wrote, reinforced “one over-riding thought: the constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens.”

  Earl Warren did not write an opinion in one of the most important cases decided during his tenure as chief justice—Griswold v. Connecticut (1965)—the case challenging the constitutionality of a Connecticut statute making the use of contraceptives a criminal offense. He must, however, accept responsibility for assigning the majority opinion to Justice Douglas, who, unfortunately, crafted an imaginative rationale for reaching an obviously correct result. Seven justices agreed that the statute was unconstitutional, and in the first paragraph of his dissent Justice Black stated that “the law is every bit as offensive to me as it is to my Brethren.”

  In their separate opinions concurring in the judgment, Justice Harlan and Justice White simply and correctly reasoned that the statute deprived married couples of liberty, as that concept has been used in the Fourteenth Amendment, without due process of law. They both recognized that that term does not just describe a concept that is the mirror image of the specific guarantees set forth in the first eight amendments to the Constitution, which are often described as the “Bill of Rights.” Rather, as Justice Harlan put it, the “Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.”

  Justice Douglas’s opinion is famous—or infamous—for its reliance on the proposition “that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life
and substance.” In his view, the statute violated the “penumbral rights of ‘privacy and repose’ ” that earlier cases had protected. Presumably he avoided the straightforward reliance on substantive due process that Justices Harlan and White advocated because of his concern that a construction of the word liberty that would be broader than the specific guarantees in the Bill of Rights would rejuvenate the universally despised decision in the Lochner case. Unfairly, in my opinion, Justice Douglas interpreted “[o]vertones of some arguments”—presumably those of the appellants challenging the Connecticut law—as suggesting that the Lochner case “should be our guide.” It would have been more accurate to describe those arguments as identifying a critical difference between Mr. Lochner’s claimed right to freedom from regulation of his economic decisions and the kind of fundamental right that Justice Holmes identified in his Lochner dissent. Indeed, on pages 22 to 23 of their brief, the appellants had specifically argued that “it is vital to emphasize the difference” between legislation affecting “rights of a fundamental individual and personal character” and legislation dealing with “regulation of commercial and property rights”; they expressly stated that they were not asking for a reinstatement of the due process line of decisions exemplified by Lochner.

  While Justice Douglas relied on the decisions in Pierce v. Society of Sisters (1925), protecting the right to educate one’s children as one chooses, and Meyer v. Nebraska (1923), protecting the right to study the German language, he did so because he viewed them as consistent with the spirit of the First Amendment. In my judgment, an opinion that gives that kind of elasticity to the First Amendment is far more likely to produce unwise judge-made rules than an interpretation of the word liberty that protects the right to decide whether to bear children.