Where Do Our Rights Come From?

A few days ago I saw a thread on BlueSky that is worth preserving in full in case it ever goes away in this age of ephemeral social media. It's from Sheryl Weikal, the Leftist Lawyer.

(Everything below this is a quote from Weikal, but I'm not using the block quote format so the long text doesn't get too unwieldy.)

Where do our rights come from? Believe it or not, the United States has been rolling back our rights for 40 years. The biggest expansion of the peoples' rights in American history actually occurred between 1953 and 1969, during the period of American history known as the "Warren Court."

Named for Chief Justice Earl Warren, who served from 1953 to 1969, the Warren Court created what legal scholars call a "Constitutional Revolution." Warren is most famous for writing the decision in Brown v. Board of Education that ended segregation in schools, but what the history books don't tell you is that the Warren Court didn't stop there. In fact, 95% of the rights you have today in the U.S. are because of the Warren Court, and the Federalist Society was created primarily as a backlash to the Warren Court.

Warren famously said that the Constitution required the creation of every right necessary to serve the public good. And he meant it too. In the sixteen years Warren was Chief Justice, the Supreme Court issued the opinions in Miranda v. Arizona (yes, that's where "Miranda rights" comes from); Gideon v. Wainwright (creating the legal right to counsel in criminal cases); Griswold v. Connecticut (striking down bans on contraception and recognizing a constitutional right to privacy); Brandenburg v. Ohio (the right to free speech without criminal punishment); Tinker v. Des Moines (the right of students to free speech in schools); Duncan v. Louisiana (the right to a jury trial in all criminal cases); Loving v. Virginia (the right to interracial marriage); Harper v. Virginia (striking down poll taxes and fees for voting); South Carolina v. Katzenberg (Congress may override state laws to remedy race discrimination); Katzenbach v. McClung (the right of Congress to regulate interstate commerce through the administrative state); Heart of Atlanta Motel v. US (antidiscrimination laws are constitutional); Wesberry v. Sanders and Reynolds v. Sims (1 person, 1 vote is a constitutional requirement); Abington School District v. Schemp (no compelled prayer in schools); Engel v. Vitale (no official state prayers); Mapp v. Ohio (illegally procured evidence can't be used against a criminal defendant); Katz v. US (the govt may not wiretap people without warrants); Hernandez v. Texas (Equal Protection includes Mexican and Latino people); Lucy v. Adams (no racial segregation in colleges); One v. Oleson (being gay doesn't violate obscenity laws and gay speech is protected by the 1st Amendment); Cooper v. Aaron (requiring desegregation of public schools); Bacon Theatres v. Westover (you have a right to a jury trial in civil cases); Hamilton v. Alabama (your right to have a lawyer present during criminal proceedings); NLRB v. Washington (the right of workers to collectively bargain); Brady v. Maryland (the state must disclose its evidence to the defense, including evidence of innocence); Ker v. California (the states must honor the Fourth Amendment protection against unreasonable searches and seizures); New York Times v. Sullivan (creating modern libel law); Cooper v. Pate (inmates in a prison have the right to sue for better conditions); Griffin v. California (a defendant's refusal to testify may not be used against them by the state); Albertson v. Subversive Activities Board (the government cannot require communists to register with the state); Schmerber v. CA (the state may not take a warrantless blood sample); Whitus v. GA (no race discrimination is allowed in jury selection); Redrup v. NY (state censorship is unconstitutional); Levy v. LA (so-called "illegitimate" children have the same constitutional rights as everyone else); and Albrecht v. Herald (minimum price agreements are illegal).

No this is not a complete list and many of these holdings are oversimplified because of character limits, but suffice to say, 95% of rights that you have as an American today exist because of the Warren Court.

In fact, even rights that came later are only because of the Warren Court. The Warren Court's precedents were used in the holdings of Roe v. Wade (the right to privacy and right to contraception formed the basis of the right to an abortion), Renee Richards v. US Tennis (the first trans rights case in 1977, with arguments based on the Warren Court's holding that criminalizing being gay was unconstitutional), and of course Obergfell (gay rights), and Bostock (trans rights), wouldn't exist without the Warren Court striking down laws that made interracial marriages and being gay and trans illegal. In fact, Brown v. Board of Education even recognized that education "is a right which must be made available to all on equal terms."

Yes, that's right: Brown v. Board went beyond just ending racial segregation and found a constitutional right to an education.

So what happened? And what can we learn from this?

First, understand that this is *NOT* a great man theory of history.

Warren didn't do all this by himself or out of his benevolence. Brown v. Board was brilliantly argued by Thurgood Marshall, who later became Warren's colleague on SCOTUS. But this all didn't happen just because of Marshall either.

You see, before Warren was SCOTUS Chief Justice, he was governor of California. And he was protested by the Civil Rights movement. A LOT. And organizers and activists found that he changed his actions in response to being protested.

So when he became chief justice, they kept protesting him, and he kept responding to those protests. It wasn't Warren being a great man. It was Warren recognizing that his theory of constitutional interpretation – that a constitutional right existed where necessary to serve the public good – required listening to the will of the people.

And because the SCOTUS has significantly more power than does the governor of California, when they protested him as SCOTUS chief justice, he had the power to respond to those protests wielding the power of the judiciary.

But there was give-and-take too. When the inevitable racist backlash began, and "Save America, Impeach Earl Warren!" signs started showing up all over America, those same protesters backed him and defeated the racists.

Warren and the Civil Rights Movement had a complicated relationship. Warren was no saint. He was not a great man. But he was a leader in a position of power who believed that progress was his duty when called upon by a mass movement, and the Civil Rights leaders correctly recognized him as a man in a position of power who was responsive to their pressure.

But the American left learned the wrong lesson from Earl Warren. Rather than learning just how powerful a tool the judiciary could be for effecting change, the Legal Left thought – especially after Roe v. Wade – that the judiciary would just keep churning out progressive decisions forever.

To be fair, there were other factors as well – the Viet Nam war siphoned protests away from the Supreme Court, and Nixon's crackdown on protests and hard-right turn played a part as well. But by the time Warren left the Court in late 1969, a new strain of conservatism was on the rise, led by another California governor – Ronald Reagan – and a nascent conservative legal movement that Reagan backed that would become the Federalist Society.

The roots of this new legal philosophy at SCOTUS began in the early 1970s.

In 1972, in San Antonio School District v. Rodriguez, the new SCOTUS, remade in Nixon's image after Warren's retirement, overruled the part of Brown v. Board of Education that held there was a constitutional right to an education. The same year, in Lindsey v. Normet, SCOTUS decided there was no right to housing either (an issue that Warren had wanted to address for years and decide the other way, but never had the opportunity). 1972 was the first year a new Supreme Court justice named William Rehnquist joined the Court.

Rehnquist was appointed by Nixon because he was a conservative champion of a doctrine that would become the foundation of the conservative legal movement when the Federalist Society was formed a decade later: textualism.

Rehnquist didn't believe in constitutional interpretation for the public good as Warren had. But the beauty of textualism was that it provided an intellectual veneer for the "go back to pre-Warren" philosophy that has undergirded conservatism ever since.

There are a few reasons why no progressive or leftist version of the Federalist Society ever took root. One, and the most popular, is that judges are supposed to be neutral umpires who just call balls and strikes. You see, the argument goes, the judiciary is the least democratic branch of government, and thus Warren imposing multiracial democracy by judicial fiat is authoritarian.

There's just one problem: that's propaganda from the right wing. You see, when Warren was sworn in, "one person, one vote" didn't exist yet. Poll taxes still existed. The electoral college, as today, was still a thing. That means that a Supreme Court responding to a mass movement was literally more democratic than either a Congress elected by white men or a president elected by the electoral college.

And arguing the Warren Court was undemocratic is the "great man" theory of history. Earl Warren deserves credit, don't get me wrong, but he didn't wake up one morning and decide to bestow multiracial democracy on the United States from benevolence.

A mass movement of the people pressured him to do it. Martin Luther King Jr. targeted him for rallies. He believed in a constitution that responded to the public good but that *required him to listen to the public good*.

Warren was impartial always but rarely neutral.

Warren, by listening to the public good, knew that multiracial democracy was a public demand and therefore his Court was the most democratic organ of government this country ever had, even though no one ever voted for a single member of it.

He believed his duty was to enact the policies the people wanted – and that's why conservatives have fought so hard for the myth of a neutral umpire impervious to public pressure.

Now to be clear, judges shouldn't be influenced by public pressure when it comes to deciding individual cases. But when deciding RULES of law? Actual policy matters? Absolutely yes they should, because as Warren believed, democracy required no less. But you can't turn back rights that the majority want – you can't impose minority ethnotheocratic rule – when your court is responsive to public pressure.

To undo Warren, the right wing had to change what a judge was – and the left just accepted it.

Nixon's war on drugs and the "tough on crime" era were a big part of this too. You see, textualism is a great moral escape for judges who don't want to be responsible for the laws they're enforcing; when you are bound not by the public good but by the words on the page, nothing you do is your fault. No one wants to be "weak on crime" either. And this demand for textualism became the watchword on both sides of the political aisle and spelled the end of Warren's theory of constitutional law.

But thanks to decades of tough-on-crime policies, by the time Bill Clinton was appointing justices, even Democratic appointees were promising to be neutral umpires who just read the text. Being an Earl Warren in a modern SCOTUS confirmation hearing would be a scandal – imagine saying "I will listen to the will of the people and serve the public good" before the judiciary committee.

So what is the takeaway here? First, democracy isn't just voting. The Warren Court WAS democracy – responsive to public pressure, serving the public good.

Second, public pressure works. We know it does. Warren is proof of concept.

But more than that, the Warren Court is a roadmap. What we need is that kind of progressive counterweight to the Federalist Society that serves the people from the judiciary.

The lesson of the Warren Court is how power works, how democracy works, and how propaganda works. In my experience, people think that 99% of what the Warren Court did was actually passed by Congress.

So we need to redefine how and where we make demands.

The modern Supreme Court is an undemocratic myth created to undo actual democracy. And we can get there again. With progressive judges willing to be pressured and a mass movement willing to provide that pressure.