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In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or the Reconstruction Amendments is now regarded as the conservative position. This article presents the first comprehensive examination of this phenomenon; it also supplies a label – “reverse polarity.” Relying on a case classification system designed to promote transparency, the article provides a detailed taxonomy of reverse polarity issues. Three are defined by provisions of the Bill of Rights (the Second Amendment, the Takings Clause, and the Free Exercise Clause), the others by lines of precedent, primarily involving freedom of expression. The article also discusses other constitutional issues that may be evolving in the direction of reverse polarity. Beyond taxonomy, the article explores three ways of looking at reverse polarity. It considers reverse polarity liberalism as a throwback to the Progressive Era and as an embrace of Justice Felix Frankfurter’s vision of judicial self-restraint. It examines reverse polarity conservatism as an application of the theory of judicial review associated with Justice Stone’s famous Footnote Four in United States v. Carolene Products Co. More broadly, the article calls attention to an unusual feature of the Roberts Court: conservative as well as liberal Justices support “a generous or expansive interpretation of the Bill of Rights” – but in different cases. It is almost as though each group of Justices has found its own copy of the Constitution, with some rights printed in boldface and italics and others grayed out and indistinct on the page.

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases. Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

This chapter focuses on the experience of African American children in the juvenile justice system. It provides an overview of the early juvenile court—its structural origins, philosophical underpinnings, historic mission, and discriminatory practices. The chapter examines the Warren Court’s due process revolution of the 1960s—its response to racial inequality, its decisions to grant delinquents some procedural safeguards, and its intended and unintended consequences. It explains why and how perceptions of youth and crime changed during the Get Tough Era of the 1980s and 1990s. The chapter also examines adolescent culpability and competence through the lens of Supreme Court decisions reaffirming that “children are different.” The Supreme Court developed its jurisprudence of youth—“children are different”—in response to get-tough laws that ignored adolescents’ reduced culpability. The political and legal responses to African Americans provide the connection between the Warren Court’s emphases on civil rights and procedural justice and subsequent efforts to get tough on youth crime.

At the University of the Pacific Law Review Symposium titled “The Warren Court’s Criminal Procedure Revolution: a 50 year Retrospective,” held October 11, 2019, much of the commentary around the legacy of the Warren Court’s due process revolution was somber for very legitimate reasons. Yet, a retrospection of this important due process revolution through an immigration lens elucidates lessons perhaps overlooked. Foremost, by expanding the universe of the laws, people, and context we consider to evaluate the Warren Court’s criminal due process legacy, we glean that it is much broader than initially imagined; indeed, broader than it was intended even by the Warren Court itself. Moreover, this legacy is perhaps not quite finished in the area of immigration law. At least, we foresee that the crimmigration crisis and the immigration federalism wave could still yield an unintended and unimagined due process revolution for immigrants that is long overdue. We proceed in this essay in two principal parts. In Part I, we provide a historical context to the immigration cases decided during the Warren Court and contrast the few due process gains that immigrants enjoyed compared to criminal defendants. In Part II, we expand on the important immigration law developments fifty years post-the Warren Court through the lens of the Warren criminal due process revolution.

I reflect on the criminal justice legacy of the Warren Court, which ended approximately a half-century ago. I ask: How much of the law and values that Earl Warren and his colleagues transmitted to us remain a part of our constitutional fabric today? Put more bluntly, was the Warren Court successful or a failure in meeting its criminal justice goals? As I see it, the goal of Earl Warren and his most progressive colleagues during his 15+ years on the high court was to reshape the criminal justice system by placing restrictions on those with the greatest power, primarily the police and prosecutors, and by providing greater rights to the rest of us (particularly the most vulnerable amongst us) when we are confronted by the awesome power of government in our homes, streets, police stations, and courts. If those were, indeed, the amorphously described criminal justice goals of the Warren Court, and if we are evaluating it by looking at where we are today in regard to those goals, I am forced to conclude that the Warren Court was to a significant extent a failure. And yet, as the title of this article hopefully suggests, there may be another way to look at the Warren Court’s efforts. Indeed, I will ultimately conclude that, at least for civil libertarians, we owe a debt to Earl Warren and his Court.

This article examines the negative effect fallacy, a flawed statistical argument first utilized by the Warren Court in Elkins v. United States. The Court argued that empirical evidence could not determine whether the exclusionary rule prevents future illegal searches and seizures because “it is never easy to prove a negative,” inappropriately conflating the philosophical and arithmetic definitions of the word negative. Subsequently, the Court has repeated this mistake in other domains, including free speech, voting rights, and campaign finance. The fallacy has also proliferated into the federal circuit and district court levels. Narrowly, our investigation aims to eradicate the use of the negative effect fallacy in federal courts. More broadly, we highlight several challenges and concerns with the increasing use of statistical reasoning in court decisions. As courts continue to evaluate statistical and empirical questions, we recommend that they evaluate the evidence on its own merit rather than relying on convenient arguments embedded in precedent.

The standard account of the First Amendment posits that the U.S. Supreme Court consistently has expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. For example, the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak. At the same time, however, the Justices have been considerably less willing than their predecessors to interpret the First Amendment to impose affirmative obligations on the government to facilitate speech when it has the ability, but not the will, to do so. For citizens who need the government’s assistance in order to speak – for example, would-be speakers who require access to public property to engage in protest activity – free speech rights have declined significantly under the Roberts and Rehnquist Courts. The Warren Court, and to some extent the Burger Court as well, embraced open-ended balancing tests to decide First Amendment cases that implicated the government’s managerial domain. Using this approach, the Warren Court pioneered First Amendment protection for government employees, students and faculty members at the nation’s public schools, colleges, and universities, and transborder speech activity. It also greatly expanded constitutionally-mandated access to public property for protest and even recognized free speech easements to private property. In all of these areas, the Warren Court developed and deployed balancing tests that weighed the interests of would-be speakers against the government’s legitimate interests in exercising managerial control over its resources. This approach had the decided benefit of making it possible for more citizens, many possessed of average means, to participate meaningfully in the process of democratic self-government. The Disappearing First Amendment advances an empirical claim, a doctrinal claim, and a normative claim. First, as an empirical matter, careful consideration of the relevant lines of authority shows that in many important areas, First Amendment rights have declined, rather than expanded, over time. Second, in a wide variety of areas, existing First Amendment rules could be significantly improved and strengthened to better protect would-be speakers from government efforts to distort the political marketplace of ideas. Third, and finally, open-ended balancing tests that facilitate the ability of ordinary citizens to participate meaningfully in the process of democratic deliberation should be preferred, at least in some contexts, to bright line, categorical rules that produce consistent results but a far less vibrant political marketplace of ideas. If free and open democratic deliberation is essential to making elections an effective means of securing government accountability, then the First Amendment should be interpreted and applied to protect more speech, rather than less speech.

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian interest, that trend is generally weak with considerable variance from Justice to Justice. Finally, the article then creates a logistic regression model in order to try to predict whether a pro-Indian outcome is likely to prevail at the Court. It finds six potential variables to be statistically significant. It uses quantitative analysis to prove that the Indian interest is more likely to prevail when the Tribe is the appellant, when the issue is framed as a jurisdictional contest, and when the case arises from certain regions of the country. It suggests that Indian law advocates may use these insights to help influence litigation strategies in the future.

This article studies the few works James Buchanan wrote on education from the end of the 1950s to the early 1970s. These neglected works tell us important things about how Buchanan's ideas on constitutions evolved through time, because they provided Buchanan with the opportunity to apply his ideas about constitutions and, in return, nurture his theoretical thinking. Two historical developments were of importance in the evolution of Buchanan's thinking: the Southern reactions to the Supreme Court's injunction to desegregate public schools in the late 1950s, and, in the late 1960s, university unrest. We argue that Buchanan moved from a rather optimistic conception that constitutions complement market mechanisms, and constitutional manipulation can be tolerated if market mechanisms were sufficiently important to nonetheless let individuals do what they want, to a really pessimistic view – a constitution is absolutely necessary to control and even coerce behaviors. Behind these claims stands Buchanan's conception of what is a " good society " and of the role of the economist in its defense.

This chapter focuses on doctrinal change. It details the doctrinal change across a broad field such as civil liberties, a type of change with an enormous potential impact. The Supreme Court is more likely than Congress to transcend incrementalism and undertake sudden and sharp policy changes. The chapter suggests that major policy change as arising when Congress or the Court has an effective majority of members who are committed to major change. It argues that a general scenario for policy change in the Supreme Court. Richard Nixon was among the critics of the Warren Court. By 1991 the only justice left from the Warren Court was Byron White, who offered only limited support for the civil liberties revolution of the 1960s. The break with the Warren Court was sharpest under Chief Justice William Rehnquist, when the Ronald Reagan and George Bush appointments were having their impact.

In recent years there has been a lot of attention paid to the U.S. Supreme Court by Indian law scholars. All the attention has been due to the dismal Court record in the Rehnquist and Roberts’ Courts for supporting Indian Country cases. Over the years authors have attempted to determine what the cause is for such a poor record. Some have concluded that some of the cases were wrongly decided. Others have attempted to analyze the Courts involved in terms of conservative and liberal or they have attempted to identify biases that some judges may have. One author has turned to statistical analysis in an attempt to determine if hidden variables are in play. Unfortunately no one has found a smoking gun though several theories have been proposed but one thing that has developed over time is that a database of cases has been evolving starting with the Rehnquist Court and it has now grown to more than one hundred forty cases. The database has provided a great opportunity for researchers who can now avoid the sometimes complex searches required by commercial databases. The purpose of this paper is twofold. First I have updated the database with some newer cases and then I have tried a new approach to analyze the various Courts beginning in 1954 with the Warren Court up through recent cases in the Roberts Court. I will say at the outset that a lot of subjectivity is involved but I see that as an advantage because scholars can easily adapt the criteria I am using to more directly fit their needs. I too will admit that I have not found a smoking gun although I have made some interesting observations which may spark an idea in someone else’s mind. I have first divided the cases into 10 broad categories in an effort to see if this categorical approach highlights anything. Then I have attempted to divide the cases by how narrow or broad the opinion is. A discussion follows that highlights some of the findings and offers ideas on how the research can be expanded.

This brief 1985 essay review discusses the nature of Supreme Court decision making as understood by two leading legal scholars, G. Edward White and Bernard Schwartz, in their respective analyses of the work of Chief Justice Earl Warren and the Warren Court in two then-recent books. The essay pays particular attention to each author’s understanding, in connection with his respective analysis, of concepts such as judicial "leadership" and "activism," as well as the connections between the intellectual and political aspects of the Supreme Court’s work and between decision making and opinion writing. Finally, the essay questions the sufficiency of Warren’s alleged reliance on his own ethical values as a basis for constitutional decision making, given the obvious existence of competing ethical values, such as those represented by cost-benefit analysis, which may be held by other Justices.

In this chapter, I analyse the Constitution of Rwanda, a small African country that experienced a devastating genocide in 1994. For the theoretical underpinning of my analysis I use illiberal state building, a concept that is explained in the first paragraph. Next, I will describe the political history of Rwanda, its constitutions and the differences they did (not) make until 1994. I continue with a brief description of the situation after the end of the genocide until 4 June 2003, the date that Rwanda's ‘home-grown’ Constitution came into force. In the third part of this paper, I start with some salient provisions and analyse and criticize the Constitution, which was amended by the end of 2015. After this, I will give an overview of the main external criticism, i.e. from the international community and from academics. I continue with an appraisal of the illiberal state building project that is going on in Rwanda, including the country's relationship with the rest of the world. Finally, I suggest how a legal complex approach could bridge the gap between the paper ideals in the Rwandan Constitution and their incomplete realization. Liberal, Postliberal and Illiberal State-Building The international debates about constitutionalism have been dominated for a long time by the ideals of the American liberal legal tradition as a victory over dictatorship. According to Mark Tushnet, ‘[l]egal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject’. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unrestrained power-holders’. I will show that this dichotomy is too simple for a good understanding of Rwanda. For a long time the American constitutional debates were of a liberal (in the sense of ‘progressive’) character. Most scholars argued that the US Constitution is a living document that must be interpreted in the context of the needs of modern society. In the 1960s and 1970s the Warren Court delivered many progressive decisions in the area of civil rights and defendants’ rights.

My goal in this symposium is not to disrespect the Warren Court Revolution. The Court's constitutionalization of the rules of criminal procedure during the 1960s were quite clearly necessary at the time they were imposed, in large measure to end the miserably unjust treatment of African Americans living in the South, and in part to foster the values of privacy, autonomy, fairness, and protection of the innocent enshrined in the Bill of Rights but ignored by many state criminal justice actors. The three most famous and important decisions by the Warren Court were vital to the health of the criminal justice system when they were rendered. The exclusionary remedy incorporated in Mapp v. Ohio was critical in persuading peace officers to learn about and then protect Fourth Amendment values; the Miranda v. Arizona warnings seemed the only way to limit abusive police behavior at the stationhouse while still encouraging uncompelled confessions, and the right to counsel offered in Gideon v. Wainwright was essential to separating guilty from innocent defendants. Unfortunately, and perhaps somewhat ironically, doctrine concerning the Fourth and Fifth Amendments have been contorted in their definitions and subject to a constant stream of exceptions by the Burger, Rehnquist, and Roberts Courts. They have come to contribute to and in fact embody the now unnecessarily adversarial and deceptive nature of many citizen-peace officer encounters. The upshot of our last fifty years of constitutional criminal procedure rules combined with certain historical events I describe below is that some citizens and law enforcement may view each other as the enemy. This is not useful to law enforcement's primary purpose of protecting us from harm and separating the innocent from the guilty. What are we to do with such a messy and quite frankly depressing state of affairs? At this juncture, it might be preferable to shape rules that are less adversarial and more inquisitorial. It certainly would be an improvement to announce transparent rules. Rather than having decision rules for cases and conduct rules for officers, we need one set of clear and well publicized rules that everyone knows and follows. And that set of rules need not be the same in every jurisdiction, so long as what officers tell citizens is the truth. Confining my remaining comments to the fifth amendment context, in Part II, I argue that the Miranda warnings, regardless of their intent and effect at the time, have become perverse and ought to be retired for five reasons. (1) They are false and deceptive. (2) They assist primarily guilty recividists and the wealthy, all other suspects waive their rights. (3) They fail to achieve either of their stated goals of "adequately and effectively" apprising suspects of their rights and regulating police conduct. Instead, suspects are confused and deceived, and the fact that the Miranda warnings were read essentially guarantees that any subsequent statements are admissible, regardless of whether they are "voluntary" within the meaning of the due process "totality of circumstances" test. (4) They fail to identify and exclude false confessions. The innocence movement has demonstrated that the majority of false confessions are from juveniles and those with mental disabilities, and the Miranda warnings are ineffective on these groups. (5) They are incompatible with historical practice and our current shared moral values. In Part III, I recommend that jurisdictions begin replacing Miranda warnings with more effective and transparent alternatives, a move I believe is permissible under current Supreme Court doctrine. I propose that mid-sized to large police departments add a new "magistrate" position, appointed through the judicial branch, to their police station staff, and supplement or replace custodial interrogation by the police with more civilized recorded questioning of felony suspects by these magistrates. Arrestees would be informed that they have no right to avoid custodial interrogation of some kind, and offered accurate descriptions of their actual options. I further suggest that the practice of producing false evidence to encourage suspects to confess be strictly prohibited, and the use of deceit during custodial interrogation be discussed and limited NY public officials and reduced to writing. Transparency in the interrogation process would be a civilizing influence and would lead to more accurate information. Allowing local legislatures to create the rules regulating interrogations would shift blame for any deceit permitted away from police officers, fostering improved relationship between law enforcement personnel and the citizens they serve. Finally, in Part IV, I begin to imagine a world in which police official used deception only when absolutely necessary, and only with the advance agreement of local public officials. Not only would any warnings given be accurate ones, but perhaps some of the most egregious deceptive practices during interrogation would be limited. This might bleed over into undercover sting operations, as many courts are already finding ways to expand the entrapment defense. The use of predictive and community policing and other evidence-based law enforcement tools might be possible if the relationship between officers and citizens improves, especially in minority communities. Numerous practices that might be effective in ferreting out the guilty and preventing crime in the first place rely on cooperation with the community. Such cooperation is almost impossible without some transparency and trust as foundations of the relationship. Amending Miranda would be a start.

It is the purpose of this article to not simply document the influence of race on our criminal system and its role in the current racial crisis of over-representation in our prisons, but rather to focus on the future and importance of a key tool in the struggle for racial equity – Federal Habeas Corpus as a post-conviction remedy. By looking first at how race served at the root of a procedural due process reform, begun in earnest during the Warren Court, this article will then note the importance played by federal habeas corpus as a post-conviction remedy as well as the unique nature and suitability of this “extraordinary writ” to bring about transformative change.

International audience; This article studies the few works James Buchanan wrote on education from the end of the 1950s to the early 1970s. These neglected works tell us important things about how Buchanan's ideas on constitutions evolved through time, because they provided Buchanan with the opportunity to apply his ideas about constitutions and, in return, nurture his theoretical thinking. Two historical developments were of importance in the evolution of Buchanan's thinking: the Southern reactions to the Supreme Court's injunction to desegregate public schools in the late 1950s, and, in the late 1960s, university unrest. We argue that Buchanan moved from a rather optimistic conception that constitutions complement market mechanisms, and constitutional manipulation can be tolerated if market mechanisms were sufficiently important to nonetheless let individuals do what they want, to a really pessimistic view – a constitution is absolutely necessary to control and even coerce behaviors. Behind these claims stands Buchanan's conception of what is a " good society " and of the role of the economist in its defense.

This article reads the Brown v. Board of Education case against the backdrop of the absurdist theater of the 1950s, a genre that flourished both in the art world and in the highly staged experiments of academic social psychology. I consider the case's resonances with the contemporaneous productions of Asch's conformity experiments and Beckett's Waiting for Godot.

This paper describes the influence of Frederic M. Scherer in the field of Industrial Organization. The emphasis is on Scherer’s research with regard to vertical agreements between a manufacturer and its downstream vendors, with particular focus on Scherer’s writings about resale price maintenance (RPM). Scherer’s views on RPM agreements are contrasted with the Chicago school’s liberality and the Warren Court’s stringency, showing how Scherer staked out a middle ground. The paper also assesses the influence of Scherer in moving US antitrust policy from its historic stance of treating RPM as per se illegal to its current treatment under the rule of reason.

Review of Wesley M. Oliver's The Prohibition Era and Policing: A Legacy of Misregulation.

This short extract -- the first four pages of Chapter 1 in an edited volume, Controversies in Innocence Cases in America -- begins to describe the history and significance of the Innocence Movement in the American Criminal Justice System. The full chapter traces the origins of the innocence organizations that came together to form the Innocence Network and fostered the new Innocence Movement, the manner in which the Innocence Movement has created an impetus and model for criminal justice reform that shifts the focus from the Warren Court's due process revolution of the 1960s to a more substantive focus on reliability. In this framework, the chapter then considers some of the specific reforms that have emerged from the Innocence Movement's focus on substantive justice, and the challenges that lie ahead.

This article examines prosecutors’ accountability for professional misconduct. It begins by identifying a significant evolution since the Warren Court era both in the rhetoric regarding prosecutorial misconduct and in how prosecutors are regulated. Prior to the information age, the public and the judiciary largely accepted prosecutors’ contention that prosecutorial misconduct should be narrowly conceived as intentional lawbreaking, and that isolated and aberrational instances of misconduct could be addressed by disciplining rogue prosecutors. In contrast, in the shift to “Prosecutorial Accountability 2.0,” increasing segments of the public and judiciary now accept that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision. The article rejects suggestions that the rhetorical and regulatory changes occurred because prosecutorial misconduct has become more prevalent. It identifies other social causes: a public awakening to criminal justice problems for which prosecutors bear responsibility; revelations, in particular, regarding the role of prosecutorial misconduct in wrongful conviction cases; new social science understandings about social and psychological predicates for prosecutorial wrongdoing; and reform organizations’ inclusion of systemic prosecutorial reform on their agenda. The article shows how the internet has served as the essential catalyst for shifting public and judicial attitudes. The article concludes by predicting that the old and new approaches to prosecutorial accountability will coexist into the foreseeable future, and that the implications will include both a more active judicial role in critiquing and overseeing prosecutors and increased self-regulation by prosecutors’ offices.

Reactions from the political environment outside of the judiciary impact the development of law, including the law defining prisoners’ rights. Congressional creation of the Religious Freedom Restoration Act (RFRA) and the RLUIPA enhanced protections for religious freedom in prisons. By contrast, congressional enactment of the PLRA imposed new procedural obstacles for prisoners seeking to file constitutional rights lawsuits and new limitations on federal judges’ authority to remedy rights violations in prisons. Additional retrenchment effects stemmed from conservatizing changes in the Supreme Court’s composition as Republican presidents appointed 12 of the 16 new justices to join the Court after the end of the Warren Court era in 1969.

American democracy is plagued by excessive partisanship, and yet constitutional law thus far has been incapable of redressing this ill. Gerrymandering is one clear example: the partisan distortion of legislative districts has accelerated dramatically in the last several decades, yet the federal judiciary has been unable to develop a constitutional standard for curbing this egregiously anti-democratic behavior. Likewise, state legislatures around the country in the last decade have been enacting statutes to cut back voting opportunities, and federal courts have struggled with articulating appropriate standards for evaluating the constitutionality of these rollback laws. A main reason for this struggle has been the judicial unwillingness to tackle directly the transparently partisan motives underlying these legislative cutbacks in voting opportunities. This judicial difficulty with curtailing excessive partisanship stems from an attempt to rely on equal protection as the relevant constitutional standard for judicial review of election laws. Invocation of equal protection is understandable given the initial success of Warren Court precedents, like Reynolds v. Sims and Harper v. Virginia Board of Elections, in using equal protection to protect equal voting rights. But as the courts have subsequently discovered, equal protection is ill-suited to the problems of gerrymander or legislation that cuts back voting opportunities for all voters. This Article offers a previously undeveloped alternative to equal protection: due process. In a wide range of areas, including civil and criminal procedure, the Supreme Court has long recognized that due process encompasses a principle of fair play. This fair play principle, well understood to apply in society to athletic competition, is suitable in the domain of politics for constraining excessive partisanship in electoral competition. In fact, the history of the Fourteenth Amendment’s ratification reveals that this fair play principle played an essential role in constraining excessive partisanship that threatened to destabilize the Republic at the time the amendment’s ratification was under consideration in Congress. Once the significance of this history is recognized, the Fourteenth Amendment’s due process clause is properly construed as constraining partisan overreaching that currently threatens to undermine American democracy. In this way, the federal judiciary appropriately can invoke due process to directly redress excessive partisanship in the form of gerrymandering or rollbacks in voting opportunities.

In the United States, exceptionally, an established judicial protocol for constitutional clearance of legislative incursions on freedom of action sets up a two-track scheme, prescribing a searching form of review for a subset of such incursions and a markedly more cursory review for the rest. The model further sets up a general standard of 'fundamentality' by which to sort such incursions into the two classes – as opposed, say, to a name-by-name specification of protected liberties drawn directly from the text of the bill of rights. Political Liberalism, I argue, should be at home with both these features of the U.S. jurisprudence. The role assigned by that jurisprudence to fifth and fourteenth amendment 'liberty' is matched by the role assigned to 'liberty of conscience' in Rawlsian political philosophy; while the second principle of justice (and not, as might appear, any Rawlsian philosophical denial of value to freedom of action 'as such') points toward a refusal of heightened-scrutiny protection for freedom of action across the board. In a Rawlsian well-ordered society, two-track scrutiny would be understandable as a device for holding the two principles of justice in equipoise.This is a revised version of my paper previously posted as 'The Priority of Liberty: Rawls and a 'Warren Court Model,' SSRN Abstract ID 1927292 The revisions, which mostly occur in Parts I.A and I.B, have been largely prompted by the trenchant, skeptical treatment of the two-tier model in Chapter 9 of James Fleming’s and Linda McClain’s recently published book, 'Ordered Liberty.'This paper is under preparation for inclusion in a forthcoming collection: Thom Brooks & Martha Nussbaum (eds), Rawls’s Political Liberalism (New York: Columbia University Press, 2013).

When you look at what the United States Supreme Court has done to hamper law enforcement and realize the difficulties the police now have in getting convictions in the first place, I wonder if we truly have representative government anymore.1 The main emphasis is on demagogic appeal; crime is the communism issue of 1968. This is the extent to which apparently there is a new Nixon.2

Herbert Packer'sThe Limits of the Criminal Sanction(1968) has spawned decades of commentary. This essay argues that Packer's two‐model conceptualization of the criminal process is best understood within his professional milieu of doctrinal legal scholarship and the political context of the Warren Court revolution. Within this context, the essay suggests a distinction between two due process visions: formalism and fairness. This distinction is useful for illuminating debates and decisions on criminal procedure matters in the Supreme Court such asTerry v. Ohio(1968) andApprendi v. New Jersey(2000). I conclude by encouraging sensitivity to legal and historical context in future commentary on Packer's framework.

My thesis in this article is that concern over racial injustice and state institutional failure was so intense during the twenty-one, “Warren years,” from 1952-1973 that it played a significant role in shaping many of the most important constitutional decisions of the Supreme Court in areas as diverse as federalism, separation of powers, criminal law and procedure, freedom of speech, association, and religion, procedural due process of law, and democracy. I believe, as well, that at least some of the changes in constitutional doctrine that have taken place in the post-Warren era, such as the erosion of the exclusionary rule, the rebalancing of federal-state power, and the easing of restrictions on aid to parochial schools, reflect both a decrease in the intensity of the Court’s concern over racial injustice, and an increase in the legal system’s confidence in state and local institutions to act fairly in racially-charged settings. I begin with a summary of selected aspects of Warren Court constitutional doctrine having nothing directly to do with race, arguing that the Justices’ concerns over racial injustice and regional failure to deal fairly with race exercised a gravitational pull on the evolution of constitutional doctrine. I then turn briefly to whether such a gravitational pull should be cause for celebration, condemnation, or a shrug of the shoulders. Finally, I ask why, once the gravitational pull of race had ebbed, certain Warren Court constitutional precedents that appear to owe their genesis, at least in part, to concern over racial injustice and regional failure have flourished, while others have melted away.

The Civil Rights Cases1 do not quite rival Plessy v. Ferguson2 for notoriety as the decision that most clearly confirmed the failure of Reconstruction and the rise of Jim Crow. Yet the Civil Rights Cases did far more than Plessy to limit federal power to address the continuing consequences of slavery. They declared unconstitutional the Civil Rights Act of 1875 insofar as it prohibited discrimination in public accommodations operated by private parties. Congress passed that act under its powers to enforce the Thirteenth and Fourteenth Amendments, but the Court held the act unconstitutional on the ground that private discrimination was neither a badge or incident of slavery under the Thirteenth Amendment nor a manifestation of state action under the Fourteenth. Although the Court's holding under the Thirteenth Amendment was effectively overruled by the Warren Court,3 its holding under the Fourteenth Amendment continues to be influential, supporting a decision of the Rehnquist Court striking down the Violence Against Women Act.4

Using the names of chief justices to demarcate periods in the history of the United States Supreme Court is as common as it is misleading. The label "Warren Court" seems etched in stone, for example, even though the Court went through two, if not three, quite distinct phases between 1953 and 1969 when the eponymous Earl Warren was chief. The last phase, moreover, arguably continued for almost a decade after Warren left the bench, and might at least after the early 1960s have more accurately been termed the "Brennan Court." Applying the chief justice's name to the recently terminated "Rehnquist Court" is particularly inapt, Professor Nancy Maveety argues in her new book, Queen's Court, a title that readily captures her thesis. Seeking "to assign a definitive meaning to the 'Rehnquist Court'" and "identify its historical importance," Maveety concludes that the Court under Chief Justice William Rehnquist "should be remembered legitimately as Justice O'Connor's." Both its longterm significance and the "real difficulties jurisprudential and systemic" that it created flowed from the "judicial O'Connorism" that characterized its work (p. 4). A specialist in the Court's history and the author of Justice Sandra Day O'Connor: Strategist on the Supreme Court (1996), Maveety is well positioned to evaluate the contributions of the Court's first female member during her twenty-five-year tenure from 1981 to 2006. Few, of course, would dispute the author's general premise that O'Connor "sat, figuratively if not literally," at the center of the Rehnquist Court (p. 4). Indeed, her pivotal role has long been recognized. Edward Lazarus, who clerked for Justice Harry Blackmun in the late 1980s, concluded a decade later that the Court "remains, as it was in my day, a creature of Justices O'Connor and Kennedy." The two "swing" conservatives controlled. "In case after case," Lazarus explained, "these swing-vote justices write separate concurrences, usually modulating the conservative insurgency

We construct the complete network of 30,288 majority opinions written by the U.S. Supreme Court and the cases they cite from 1754 to 2002 in the United States Reports. Data from this network demonstrates quantitatively the evolution of the norm of stare decisis in the 19th Century and a significant deviation from this norm by the activist Warren Court. We further describe a method for creating authority scores using the network data to identify the most important court precedents. This method yields rankings that conform closely to evaluations by legal experts, and even predicts which cases they will identify as important in the future. An analysis of these scores over time allows us to test several hypotheses about the rise and fall of precedent. We show that reversed cases tend to be much more important than other decisions, and the cases that overrule them quickly become and remain even more important as the reversed decisions decline. We also show that the Court is careful to ground overruling decisions in past precedent, and the care it exercises is increasing in the importance of the decision that is overruled. Finally, authority scores corroborate qualitative assessments of which issues and cases the Court prioritizes and how these change over time.

National Standards Era 3: Revolution and the New Nation (1754-1820S) Standard 3B: Demonstrate understanding of issues involved in the creation and ratification of the United States Constitution and the new government it established. Era 9: Postwar United States (1945-Early 1970s) Standard 4D: Demonstrate understanding of the contributions of the Warren Court in advancing civil liberties and equal rights.