The Attack on the Warren Court


Chief Justice Earl Warren

Donald Trump and his right-wing coup are attacking so many areas of our social network that major aspects of that attack are going essentially unrecognized.  The media covers their threat, for  example, against many bread and butter protections: rights to health care and medicare and social security.   Threats to the environment and against public education.  And we hear about Trump’s latest tweet, or building his wall, or his threat to register Muslims.  The media is filled with disputes about “fake-news” and whether the Russians hacked.  And now quite rightly, we hear stories in recognition of the Women’s March.

But rightly or wrongly, all of this news, and noise, has diverted attention from the intent of the Reactionary Right to dismantle the protections to individuals emanating from the Civil Rights movement of the 1950s and 1960s, and more specifically from decisions made by the United States Supreme Court under the leadership of Chief Justice Earl Warren.  Earl Warren was appointed to the Supreme Court in 1953 by President Eisenhower – in part because of impeccable conservative credentials that he had gained as Attorney General and then Governor of California.  But Warren was a man of considerable intellect and found himself on the Court just as a series of civil rights actions were forcing their way into the public eye.  The short of it is that Blacks, having fought for our country in World War II, were unwilling to submit any longer to the segregation and humiliations of the Jim Crow South.  Warren sympathized and found himself increasingly allied with the Court’s liberal-wing.  Over the course of his term until 1969, his Court turned out numerous land-mark decisions, the general gist of which was to apply our federal Constitutional Bill of Rights on behalf of all individuals.   Thus, Brown v. Board of Education struck down the practice of separate but equal schools for Blacks and Whites.   Miranda and similar cases gave criminal defendants notice of their rights, protections against coerced confessions, right to counsel, and rights to privacy and against unreasonable searches and seizures.  Loving v. Virginia gave individuals the Constitutional right to marry across racial lines.  The Court required a standard of one man – one vote for state reapportionments.  And Roe v. Wade, protecting reproductive rights, although post-dating Warren’s tenure, was a natural extension of the Warren doctrines finding privacy rights and protections to be implicit in the Bill of Rights.

I’m not writing a legal treatise here, but you get the idea.  These decisions provided a new era of rights and protections to individuals against the authority of the State.  To me, their fairness has always been self-evident.  In a free country, surely all its citizens are entitled to a basic panoply of civil protections, including the right to a fair hearing in the courts (due process).  Indeed, as a side-note, the Warren Court decisions contain some of the most forceful writing ever produced.

Nonetheless, the success of this progressive civil rights movement has stuck in the craw of America’s reactionary core.  The racists of the South and states’ rights activists – often the same people – did not and do not like being told that their citizens, at least their minority citizens, have rights.  From the beginning, reactionaries have viewed the Warren Court decisions as both condescending and violations of the state sovereignties to which they feel entitled.  The red neck cops – sometimes even on the cop shows – sneer at Miranda and revel in ignoring requirements for warrants.   As a practical matter, Constitutional rights to counsel are undercut by lack of legislative funding.  Reproductive rights have been systematically under attack for years, effectively foreclosing access to abortions in some “Bible belt” states.  The Constitutional right to Habeas Corpus has been systematically eroded in state and federal laws.  The Reactionary Right has been nibbling, nibbling, and eroding.  And now, suddenly, with the Trump victory, control of both legislative houses in Congress, and prospective control of the Supreme Court, they are in the driver’s seat.

You see what I’m saying?  A wall of civil rights protections for individuals, long under attack, is poised to collapse.  I don’t know the details for how it will happen.  But this will be yet one more tragedy for women and minorities, and indeed for any individual who finds himself under the suspicions of state authority.  The term Fascism comes to mind.  Thought you might like to know.



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