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Democracy and Equality: The Enduring Constitutional Vision of the Warren Court
From 1953 to 1969, the Supreme Court under Chief Justice Earl Warren brought about many of the proudest achievements of American constitutional law. The Warren declared racial segregation and laws forbidding interracial marriage to be unconstitutional; it expanded the right of citizens to criticize public officials; it held school prayer unconstitutional; and it ruled that people accused of a crime must be given a lawyer even if they can't afford one. Yet, despite those and other achievements, conservative critics have fiercely accused the justices of the Warren Court of abusing their authority by supposedly imposing their own opinions on the nation.
As the eminent legal scholars Geoffrey R. Stone and David A. Strauss demonstrate in Democracy and Equality , the Warren Court's approach to the Constitution was consistent with the most basic values of our Constitution and with the most fundamental responsibilities of our judiciary. Stone and Strauss describe the Warren Court's extraordinary achievements by reviewing its jurisprudence across a range of issues addressing our nation's commitment to the values of democracy and equality. In each chapter, they tell the story of a critical decision, exploring the historical and legal context of each case, the Court's reasoning, and how the justices of the Warren Court fulfilled the Court's most important responsibilities.
This powerfully argued evaluation of the Warren Court's legacy, in commemoration of the 50th anniversary of the end of the Warren Court, both celebrates and defends the Warren Court's achievements against almost sixty-five years of unrelenting and unwarranted attacks by conservatives. It demonstrates not only why the Warren Court's approach to constitutional interpretation was correct and admirable, but also why the approach of the Warren Court was far superior to that of the increasingly conservative justices who have dominated the Supreme Court over the past half-century.
As the eminent legal scholars Geoffrey R. Stone and David A. Strauss demonstrate in Democracy and Equality , the Warren Court's approach to the Constitution was consistent with the most basic values of our Constitution and with the most fundamental responsibilities of our judiciary. Stone and Strauss describe the Warren Court's extraordinary achievements by reviewing its jurisprudence across a range of issues addressing our nation's commitment to the values of democracy and equality. In each chapter, they tell the story of a critical decision, exploring the historical and legal context of each case, the Court's reasoning, and how the justices of the Warren Court fulfilled the Court's most important responsibilities.
This powerfully argued evaluation of the Warren Court's legacy, in commemoration of the 50th anniversary of the end of the Warren Court, both celebrates and defends the Warren Court's achievements against almost sixty-five years of unrelenting and unwarranted attacks by conservatives. It demonstrates not only why the Warren Court's approach to constitutional interpretation was correct and admirable, but also why the approach of the Warren Court was far superior to that of the increasingly conservative justices who have dominated the Supreme Court over the past half-century.
240 pages, Hardcover
Published January 6, 2020
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About the author
Geoffrey R. Stone
91 books45 followersGeoffrey Stone is Edward H. Levi Distinguished Service Professor at The University of Chicago Law School.
Geoffrey Stone has been a member of the law faculty since 1973. From 1987 to 1993, Mr. Stone served as Dean of the Law School, and from 1993 to 2002 he served as Provost of the University of Chicago. Mr. Stone received his undergraduate degree in 1968 from the University of Pennsylvania and his law degree in 1971 from the University of Chicago Law School, where he served as Editor-in-Chief of the Law Review. Mr. Stone served as a law clerk to Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and to Justice William J. Brennan Jr. of the Supreme Court of the United States. Mr. Stone was admitted to the New York Bar in 1972.
Mr. Stone teaches and writes primarily in the area of constitutional law. His most recent books are Top Secret: When Our Government Keeps Us in the Dark (2007) and War and Liberty: An American Dilemma (2007). Mr. Stone’s Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004) received numerous national awards, including the Robert F. Kennedy Book Award for 2005, the Los Angeles Times Book Prize for 2004 as the best book in the field of history, the American Political Science Association's Kammerer Award for 2005 for the best book in Political Science, the Hefner Award for the best book on the First Amendment, and Harvard University's 2005 Goldsmith Award for the best book in the field of Public Affairs.
Mr. Stone is currently chief editor of a fifteen-volume series, Inalienable Rights, which is being published by the Oxford University Press between 2006 and 2012. The authors in the series include, among others, Richard Posner, Richard Epstein, Alan Dershowitz, Larry Lessig, Martha Nussbaum, Jack Rakove, Pamela Karlan, Lee Bollinger, and Larry Tribe.
Mr. Stone is working on a new book, Sexing the Constitution, which will explore the historical evolution in western culture of the intersection of sex, religion, and law. His past works include Eternally Vigilant: Free Speech in the Modern Era (2001), The Bill of Rights in the Modern State (1992) (with Mr. Epstein and Mr. Sunstein), Constitutional Law (6th ed. 2009) (with Mr. Sunstein), and The First Amendment (3d ed. 2008) (with Mr. Sunstein). Mr. Stone also serves as an editor of the Supreme Court Review (with Mr. Hutchinson and Mr. Strauss), and he writes frequently for huffingtonpost.com and for such publications as the New York Times, the Chicago Tribune, and the Wall Street Journal.
Among his many public activities, Mr. Stone is a member of the national Board of Directors of the American Constitution Society, a member of the National Advisory Council of the American Civil Liberties Union, a Fellow of the American Academy of Arts and Sciences, a member of the American Philosophical Society, a member of the American Law Institute, a member of the Straight for Equality Project of PFLAG, and a member of the Board of the Chicago Children's Choir.
Geoffrey Stone has been a member of the law faculty since 1973. From 1987 to 1993, Mr. Stone served as Dean of the Law School, and from 1993 to 2002 he served as Provost of the University of Chicago. Mr. Stone received his undergraduate degree in 1968 from the University of Pennsylvania and his law degree in 1971 from the University of Chicago Law School, where he served as Editor-in-Chief of the Law Review. Mr. Stone served as a law clerk to Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and to Justice William J. Brennan Jr. of the Supreme Court of the United States. Mr. Stone was admitted to the New York Bar in 1972.
Mr. Stone teaches and writes primarily in the area of constitutional law. His most recent books are Top Secret: When Our Government Keeps Us in the Dark (2007) and War and Liberty: An American Dilemma (2007). Mr. Stone’s Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004) received numerous national awards, including the Robert F. Kennedy Book Award for 2005, the Los Angeles Times Book Prize for 2004 as the best book in the field of history, the American Political Science Association's Kammerer Award for 2005 for the best book in Political Science, the Hefner Award for the best book on the First Amendment, and Harvard University's 2005 Goldsmith Award for the best book in the field of Public Affairs.
Mr. Stone is currently chief editor of a fifteen-volume series, Inalienable Rights, which is being published by the Oxford University Press between 2006 and 2012. The authors in the series include, among others, Richard Posner, Richard Epstein, Alan Dershowitz, Larry Lessig, Martha Nussbaum, Jack Rakove, Pamela Karlan, Lee Bollinger, and Larry Tribe.
Mr. Stone is working on a new book, Sexing the Constitution, which will explore the historical evolution in western culture of the intersection of sex, religion, and law. His past works include Eternally Vigilant: Free Speech in the Modern Era (2001), The Bill of Rights in the Modern State (1992) (with Mr. Epstein and Mr. Sunstein), Constitutional Law (6th ed. 2009) (with Mr. Sunstein), and The First Amendment (3d ed. 2008) (with Mr. Sunstein). Mr. Stone also serves as an editor of the Supreme Court Review (with Mr. Hutchinson and Mr. Strauss), and he writes frequently for huffingtonpost.com and for such publications as the New York Times, the Chicago Tribune, and the Wall Street Journal.
Among his many public activities, Mr. Stone is a member of the national Board of Directors of the American Constitution Society, a member of the National Advisory Council of the American Civil Liberties Union, a Fellow of the American Academy of Arts and Sciences, a member of the American Philosophical Society, a member of the American Law Institute, a member of the Straight for Equality Project of PFLAG, and a member of the Board of the Chicago Children's Choir.
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Displaying 1 - 6 of 6 reviews
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January 19, 2020The nature and the legacy of the storied Warren Court is examined through the lens of a dozen key cases that have shaped the current US. My full review is here: https://openlettersreview.com/posts/d...
February 13, 2020
Essential reading if you want to understand what is at stake for our democracy and why the courts matter. A historical look at the Warren court and its principled interpretation of our Constitution. The Warren court was deferential to the legislature by default and only sought to intervene when it saw the political process failing the needs of the powerless. Highly recommend!
July 23, 2023
I love the ambition of ths book. Stone and Strauss make an unapologetic defense of the Warren Court in this review of 12 landmark cases. Stone and Strauss argue that the Court engaged in aggressive criminal justice reform at least in part to address the pathological criminal injustices of the Jim Crow South. Selective incorporation of the 4th through 8th Amendmendments benefited Civil Rights activists by giving the NAACP Legal Defense Fund more pathways for seeking relief in court. In their review of Brown v Board, the authors note that " the Civil Rights Act of 1964 was crucial, but if the Court had not acted in 1954 and changed the terms of the debate, there is no telling when, or even whether, that statute would ever have been enacted." They see the NYT v Sullivan case as part and parcel of this liberal project to even the scales between segregationists and Civil Rights activists ("a discrete and insular minority"). To achieve this goal, the Court gave teeth to the Due Process Clause of the Fifth Amendment which says "no person shall be deprived of life, liberty, or property without due process of law." Stone and Strauss then turn to Mapp v Ohio and argue with Stanford professor Herbert Packer that segregationists were engaged "in the perversion of the criminal process into an instrument of official oppression." They remind us that in Mapp , "Cleveland police officers, acting without a warrant, forced their way into the residence of Dollree Mapp, an African American woman, and searched her home, where they found several pornographic books and pictures." The exclusionary rule as Justice Brennan stated was not only about deterrence, but was designed more broadly to accomplish " the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness and of assuring the people that the government would not profit from its lawless behavior." In framing the Gideon v Wainwright decision in 1963, Stone and Strauss remiind the reader of the injustices surrounding the notorious 1931 Scottsboro case. The need to strengthen adequate representation, right to counsel, and appointment of counsel for indigent defendants are rooted in the "worse abuses of Jim Crow criminal justice." Politically motivated gerrymandering in the South also inspired the population equality requirement in the Reynolds v Sims and "the first substantial incursion on state control of voting qualifications" since the passage of the Fifteenth Amendment. When Stone and Strauss frame the Miranda v Arizona judgment, they remind the reader of the horrific extrajudicial abuses of Brown v Mississippi when the police hung an African American tenant farmer from a tree and whipped him until he agreed to confess to the murder of a white planter and of subsequent American Horror Story injustices in Chambers v. Florida, Ashcraft v Tennessee, Harris v South Carolina, Payne v Arkansas, and Brooks v Florida. Custodial interrogation in all these cases was license for Jim Crow human rights abuses. Taken together , the review of these 12 landmark cases make clear that the egalitarianism of the Warren Court addressed inequality tied to race ("if the Court's espousal of equality before the law was to be credible, it required not only that the poor Negro be permitted to vote and to attend a school with whites, but also that he and other disadvantaged individuals be able to exercise, as well as possess, the same rights as the affluent white when suspected of crime").
August 31, 2023
I guess it’s worth reading a full-throated op-ed level attack on originalism and defense of living constitutionalism and the Warren court revolution. If you already know what they’d say about these things at a dinner party though, you’ll get nothing here. There’s no discussion of the limits of “common law constitutionalism.” No discussion of why smart people they know like Will Baude and Akhil Amar disagree with them. No real engagement with nuanced formalist/positivist/originalist thought (though definitely some points scored against the naive versions and some proper challenges set up). Mostly just talk about their policy preferences. Very screed-y.
September 13, 2025
I can't imagine being a young (progressive) attorney/law student during the Warren Court. You saw real change, progress, a path forward to a better country. Only for it to be quickly chipped away by conservative reactionary judges/presidents who have led us to the current moment in the Supreme Court. Nothing is gained by pointing out the hypocrisy of those who screamed Judicial Activism and are silent today, when we don't even get reasonings attached to rulings. One can only hope that we can approach anything similar to the work of the Warren Court in the future. I don't see a way to do that without expanding the Court and thus makes it incredibly unlikely things get better.
May 22, 2022
Goes through interesting case studies and paints a coherent and compelling picture.
Displaying 1 - 6 of 6 reviews