Earl Warren, the “Warren Court,” and the Warren Myths

“It” is not enough for the knight of romance,” Justice Holmes once reminded us, “that you agree that his lady is a very nice girl-if you do not admit that she is the best that God ever made or will make, you must fight.” So, too, with the admirers of the Chief Justice and their “fair lady.” For the moment, Earl Warren is enjoying the lavish praise that is not uncommonly ladled out when a man voluntarily decides to end a long and important government career. The contents of this issue of the Michigan Law Review may be taken as representative of the prevalent attitude, especially in the law school world, about the greatness of Chief Justice Warren.

Indeed, it was clear from the tone of the invitation to participate in this Symposium that the editors were requesting me to play a part in a sort of secular canonization of the great man, and that my role was to be that of the devil’s advocate. As an amateur in canon history, I have been unable to discover an instance in which the devil’s advocate has prevailed. I assume, therefore, that the function I am expected to fulfill is that of making out a good case against the miracles that Warren is supposed to have performed, but not a good enough case to be convincing. Thus, I must align myself neither with President Eisenhower’s rumored reference to his appointment of Warren as the “biggest damfool mistake I ever made” nor with President Johnson’s assessment of Warren as “the greatest Chief Justice of them all.” My proposition here is rather that Warren is deserving neither of the simpering adulation of his admirers nor of the vitriolic abuse of his detractors. It is too early to sanctify him.