The Warren and
Rehnquist Courts:
Civil Rights and
Democracy
in the United States
By Samantha C.
Historical Question
As conveyed by the Warren (19531969) and Rehnquist (1986-2005)
Courts in the context of their
respective eras, to what extent did
each Supreme Court play a role in
civil rights and democracy in the
United States?
Origins
of the
Civil Rights
Movement
I. The Legacy of World War II
The war effort
Economy revived, job opportunities for blacks
Urban black middle class thrived
Leaders of black communities lead civil rights
movement
Black colleges and universities had expanded
 Students and educators contribute to civil rights
movement
The Cold War
The Red Scare, McCarthy
Korean War ended in July 1953
Proxy war  U.S. not successful
America: freedom and justice; Soviet Union: enemy of
freedom
Irony: racism is an injustice, an embarrassment
II. Urban Trends
The “Second” Great Migration
(1940-1960)
South (rural)  North (urban)
Northern Blacks in Politics
Bloc in Democratic Party
Labor unions
Popular Culture:
Television:
Wealthy white families
Images of demonstrators
Sports:
Jackie Robinson
Rock and Roll
“Race music”
E.g. Elvis Presley
Above, the handshake with
George (Shotgun) Shuba of
the International League's
Montreal Royals (left),
teammate of Jackie
Robinson, after Robinson’s
third-inning home run April
18, 1946; Roosevelt
Stadium; Jersey City, N.J.
Pre-Court Opinions
Warren
Reston, 1953
About the times:
“Nothing has divided the
nation in the post-war era more
than questions involving racial
segregation or the freedoms …
protected by the First
Amendment”
About Warren:
“As Governor of California, he
generally was ranked with the
liberals in his party”
Rehnquist
1971, the year
Rehnquist is
appointed a
justice aide
Rehnquist is
quoted as
saying, “I am
opposed to all
civil rights
laws” in an
affidavit
Warren and Rehnquist
Both Warren and Rehnquist address all
of the following issues at one point in
term of office as Supreme Court Chief
Justice:
Civil rights (race)
Voting
Criminal procedures
Religion
Only the Rehnquist Court addresses
gender/sex issues
In general, they ruled for opposing
causes
Things to Think About
Focus: who protects the individual, and the
rights of that individual, in our society?
Democracy: How does the individual fare in
this country under a given court?
Common thread: Amendments being looked
at, used, how each court interprets the
amendments
What amendment is being used? What
part(s)? How used?
 A court uses part of the Constitution to
support a given view or position
People’s reactions
Unanimous or divided: reflection of the
country
Civil
Rights:
The Warren
Court
Brown
v.
Board of Education
of Topeka, Kansas (1954)
Brown v. Board of Education
Earl Warren’s reading copy of Brown opinion
May 17, 1954
“unanimously”, “Separate educational
facilities are inherently unequal”
“rejected” Plessy vs. Ferguson
Justification: the Fourteenth Amendment –
“equal protection of the laws”
Brown, For and Against
Pro-Brown
Chicago Defender,
June 12, 1954
(right)
Anti-Brown
John Kennedy,
Arkansas Democrat,
May 22, 1954
(left)
Significance of Brown for Civil Rights
Integration of schools  equal opportunity for success,
employment
The Warren Court reveals itself as a liberal, activist
court
Liberal court: for human, individual, civil rights
Activist court: the Supreme Court assumes
responsibility for the racial status of public education in
the nation
Unexpected: Warren follows FDR and the New Deal
Rejects the Jeffersonian Ideal: “The government that
governs least governs best”
The Warren court view: states hinder the improvement
of justice in America
Brown   desegregation of the entire country
The federal government has finally begun to enforce the
13th, 14th, and 15th Amendments
The Desegregation Crisis
Little Rock, AK (Summer 1957)
 National Guard
 White mobs televised
 Eisenhower
 Federal troops to protect
 The “Little Rock Nine”
•
•
•
Desegregation of other public facilities
Montgomery Bus Boycott, 1956
Rosa Parks  Dr. Martin Luther King, Jr.
Supreme Court: Segregation of buses is
unconstitutional  Dec. 20, 1956
Civil disobedience in Greensborough,
NC, 1960
Freedom Riders, 1961-1965
Southern white retaliation – June 1963:
Jackson, Mississippi
March on Washington, 1963
Counts, Will.
September
1957. Little
Rock, AK.
Attack on the Warren Court
The Birch Society: a far right wing
organization
Conducted an essay contest on
“Grounds for the Impeachment of
Earl Warren” 1961
 President Whitney North
Seymour of the American
Bar Association says:
“Leave such attacks to the
Communists who hate our
institutions” – this response is a
reflection of Cold War hostilities
Congress Responds
Civil Rights Acts:1957, 1964, 1965
Liberal to Conservative in the Nation
1960s: liberal - Civil Rights, President Andrew Johnson’s Great
Society, U.S. GNP up 31%
The Nixon Presidency (1969-1974): the Watergate Scandal
 Trust in federal government diminished
The Vietnam War:
The U.S. expected to win  costly, long, brutal  failure
U.S. focused on international affairs rather than domestic
economic and racial problems  anti-war movement
Civil Rights: threatened employ of white people
Militant, extremist black groups, e.g. the Black Panthers,
the Nation of Islam
Economy of 1970’s: inflation, recession, unemployment, huge
deficit in balance-of-payments
materialism and consumerism
 People hated excessive taxation and regulation
Energy Crisis 1973-4
 Distrust of a liberal, activist government
the people of the U.S. wanted deregulation of economy by govt
The 1980s: Reagan Conservatism
The 1980s
Ronald Reagan (1981-1989): The Reagan Years
Decentralization in political and economic worlds
Reaganomics: tax cuts  diminished stagflation
1983: beginning of the longest U.S. bull market in history
New technology was changing the economy
Social conscience with new dangers:
AIDS, environment, crime and assassinations
Oprah Winfrey  tabloid talk shows popularized
Issues for public awareness, e.g. homosexuality
On an international scale:
Rise of Islamic Fundamentalism
1989: Fall of the Berlin Wall  end of the Cold War
Increased, improved telecommunications across continents
1989: Democratic, anti-communist revolutions, e.g.
Tiananmen Square protests, China
Reagan doctrine: the U.S. supported anti-Communist or
anti-Soviet rebellions, 1989
Civil
Rights:
The Rehnquist
Court
Affirmative Action
In the 90’s: Civil Rights issues : affirmative action
How do we redress grievances from systemic racism?
 Implementation of desegregation
Bakke v. Regents of the University of California (1978) – before
the Rehnquist Era: Race as a factor in student admissions, in
order to achieve “student body diversity”, is constitutional
(does not violate 14th Amd.)
Hopwood v. Texas (1996) challenged Bakke v. Regents
Effectively banned affirmative action in LA, TX, MS
Johnson v. Board of Regents of the University of Georgia
(2001) openly questioned Bakke
Grutter v. Bollinger (2003)
Decision: 5 – 4 : If race factor not weighted or deciding,
constitutional in admissions process; re-affirmed Bakke,
overriding Hopwood Rehnquist was in the dissent
(Left) Gallup poll of public’s attitude
towards public schools
Democracy and Voting:
The Warren Court
Voting: Baker v. Carr (1962)
“The reapportionment case”
Question: Does the Supreme Court have jurisdiction over
questions of legislative apportionment? Or is it only a political
question?
Decision:
 Vote of 6 – 2: Yes
Judicial, not political issue: Fourteenth Amendment
Votes before re-apportionment were “unconstitutionally
based, since the equal protection clause [prohibits]
arbitrary and unreasonable apportionment of legislative
seats”
Legal Impact:
14th Amendment equal protection  “one person, one
vote”, or “per capita equality of representation
Changed political representation in the U.S.
Reapportionment Revolution 1960s
Supreme Court extending power into state-level affairs
Focused “the public eye” so closely on the Supreme
Court’s actions
The 2000
Election
and the
Rehnquist Court
Florida
Above: “The Butterfly Ballot”
Palm Beach County, FL
Al Gore vs. Pat Buchanan
3,000+ voted for Buchanan by
mistake
19,000+ double-punched
Buchanan over-vote. Palm
Beach County: right-most
bar, almost three times the
over- vote of the next highest
Blue: punch ballot
Yellow: optical ballot
Undervote average: 1.5% in counties
with punch ballot; 0.6% in counties with
optical
unequal protection: The Fourteenth
Amendment, makes an argument for
manual recounts of votes in Florida
Bush v. Gore uses the argument of equal
protection against manual recounts
African-American Opinion:
Florida Poll, 2001
•
•
•
•
Equal protection
Fourteenth
Amendment rights
violated
More than 80%
believed that more
blacks’ votes were
rejected than nonblacks’ votes
Around 30%, either
he/she or a friend,
“denied fair access
to voting”
40-54% thought
black votes were
treated differently
because of a
“coordinated effort
by state government
to make it more
difficult for African
Americans to vote”
Bush v. Palm Beach County
Canvassing Board (2000)
Monday, December 4
Rather than affirm or overturn the Florida
Supreme Court’s decision, the Supreme
Court asks why the lower court made its
ruling
Wanted to see whether the Florida high
court’s interpretation of Florida law
circumvented legislative authority
 This circumstance would have violated
Article II, Section 1 of the Constitution,
for the appointment of electors from
each state “in such Manner as the
Legislature thereof may direct”
Bush v. Gore
Question: Did the Florida Supreme Court violate the
Equal Protection and Due Process Clauses of the
Constitution by allowing hand recounts without set
standards?
Another issue: the December 12 “safe harbor” deadline
for the recounts
Decision: (7 – 2 ruling)
Recounts in Florida unconstitutional  halted
Procedure of recounting might not be the same for
each county; denied equal protection under the 14th
Amendment
There was only one day for the recounts to take place,
not enough time for a constitutionally valid recount
Immediate halt to manual recounts was upheld (5 – 4
ruling)
Also, on the basis of Article II, Section I, Clause 2 of
the Constitution: “Each State shall appoint, in such
Manner as the Legislature thereof may direct, a
Number of Electors”
Significance of Bush v. Gore
The individual votes of the people need not be
recounted, as the United States of America does not
conduct direct election
This part of the decision is going against the
principle of “one person, one vote” established in
Baker v. Carr (1962) of the Warren Court
Stare decision: The Supreme Court’s decisions are to be
recognized as set precedents; yet…
“Our consideration is limited to the present
circumstances, for the problem of equal protection in
election processes generally presents many
complexities.”
 For this statement in the majority opinion, departing
from the principle of stare decisis, Bush v. Gore received
much criticism
Political Cartoonists Respond
By Don Wright, The Palm
Beach Post, November 26,
2000
Irony: The Supreme Court
majority under Rehnquist
was usually pro-states’
rights; for the presidential
election of 2000, the
Supreme Court overturned
the ruling in the Florida
Supreme Court
By Daryl Cagle, The Honolulu
Advertiser, December 4, 2000.
The Supreme Court decision in
Bush v. Gore effectively put
George Bush into office
Response to Bush v. Gore
Chief Justice William H. Rehnquist and Justices Sandra
Day O' Connor, Antonin Scalia, Anthony M. Kennedy,
and Clarence Thomas
The Bush Decision December 13, 2000 by Ann Telnaes
What’s underneath, behind the decision, under the
cloak of the Supreme Court, is politics
Criminal
Procedures:
The Warren Court
Mapp v. Ohio (1961)
Search and seizure
Question: “May evidence obtained by a search
in violation of the Fourth Amendment be used in
state criminal proceedings?”
Decision: Vote of 6-3 “all evidence obtained by
searches and seizures in violation of the
Constitution is, by [the Fourth Amendment],
inadmissible in a state court.”
Legal impact: controversy: exclusion of illegally
obtained evidence from all court levels
Gideon v. Wainwright (1963)
Right to counsel in criminal procedure
Question: For non-capital and capital cases, must states
appoint counsel to defendants who cannot pay?
Unanimous decision, 9 – 0
Now, the 6th Amd. applicable to the states by 14th
Amd., and as such it required counsel to defendants
in state criminal trials, charged with serious offenses
Legal Impact:
Two series of cases followed: the right itself to
counsel under the 6th Amd,, and at what stages in the
criminal justice system the defendant must be
allowed counsel
Concerned standards of effective counsel to
determine when the right to such has been denied to
the defendant
Felony cases  Argersinger v. Hamlin (1972)
extended the right to misdemeanor
Today: public defender offices; in some regions,
private attorneys hired judges
Miranda v. Arizona (1966)
Escobedo v. Illinois (1964): right to counsel
Miranda v. Arizona (1966)
Question: Do police interrogation practices on individuals,
without having notified them of their protection against selfincrimination and their right to counsel (established by
Gideon), violate the Fifth Amendment?
An unusual 5 – 4 decision
Incriminating evidence said by the suspect cannot be
used if strict procedure were not adhered to
A “law enforcement system that depends on the
confession is inherently less reliable and more subject
to abuse than a system that depends on extrinsic
evidence”
Legal Impact:
Guidelines for custodial interrogations
The suspect-police and citizen-state relationships
changed
Criminal convictions are now based on a solid
foundation of evidence, not confessions made under
questionable circumstances
Terry v. Ohio (1968):
Search and seizure in criminal procedure
Question: Were Terry’s Fourth Amendment rights
violated by the police officer?
Decision: Ruling of 8 – 1, it seems the opposite
ruling of Mapp v. Ohio, but circumstances were
different
Significance:
“Reasonable suspicion”; protection of
individuals under 4th Amd. weakened
Officer’s power is still checked; the search must
be limited in scope and/ or for the goal of the
officer’s own protection
Criminal
Procedures:
The Rehnquist Court
Colorado v. Connelly (1986)
Involuntary confession
Francis Connelly, a man suffering from chronic
schizophrenia at the time, confessed to murder to a
policeman without prompting
Question: Does the use of Connelly’s statements as
evidence violate the Due Process Clause of the
Fourteenth Amendment?
Decision: this evidence could be used, though the
man’s “rational intellect” and “free will” had
interference due to mental state
Limits the scope of Miranda v. Arizona
interpretation
“Miranda protects defendants against government
coercion leading them to surrender rights protected
by the Fifth Amendment; it goes no further than
that”
McCleskey v. Kemp (1987)
Question: Does sentencing McCleskey to death violate
the Eighth and Fourteenth Amendments based on the
statistical study, the Baldus study, showing that a black
defendant who killed a white victim is most likely of all
racial combinations to be sentenced to death in the state
of Georgia?
Decision: 6 – 3
The statistical study did not provide substantial
evidence to require a reversal of conviction; it could
not be proven that discrimination had affected
McCleskey in this particular trial
Therefore, the death penalty for this man was
constitutional
The legislative rather than judicial branch of
government is better suited for presenting data
Dissent: evidence of racial bias in cases addressing
capital offenses
To those against the ruling, the decision was pro-death
penalty, racist (not looking at racism in the case)
Dickerson v. United States (2000)
Under 18 USC Section 3501 "a confession shall be
admissible in evidence if it is voluntarily given."
Question: May Congress overrule Miranda v. Arizona,
and its warnings, through legislation?
Decision: 7 – 2
Rehnquist held that Miranda mandates under what
circumstances to accept statements made during
custodial interrogation, in both state and federal
courts
"Miranda has become embedded in routine police
practice to the point where the warnings have
become part of our national culture," wrote
Rehnquist. "Miranda announced a constitutional
rule that Congress may not supersede legislatively.
We decline to overrule Miranda ourselves"
It is possible that the culture of the U.S. itself influenced
this decision, which seems to be more on the side of the
individual, unusual for the Rehnquist court
Atwater v. City of Lago Vista (2001)
Background:
Texas Law held it a misdemeanor for a person sitting in the
passenger seat of a vehicle equipped with seatbelts not to
wear one
Atwater was pulled over, handcuffed, imprisoned
Question: Does the Fourth Amendment limit the authority of a
police officer to arrest without a warrant for a minor criminal
offense? In this case, are common-law restrictions on
misdemeanor cases implicit to the Fourth Amendment?
Decision: 5 – 4
The Fourth Amendment does not prohibit a warrant-less
arrest for a minor criminal offense
"If an officer has probable cause to believe that an
individual has committed even a very minor criminal
offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender" – Justice Souter
wrote
This decision is reminiscent of the “reasonable suspicion”
precedent set by Terry v. Ohio (1968), but this time with a
divided court ruling of 5 – 4
Religion:
The Warren Court
Engel v. Vitale (1962)
Background:
Small, non-denominational prayer for school children
in public schools “Almighty God, we acknowledge our
dependence upon Thee, and beg Thy blessings upon
us, our teachers, and our country. Amen”
Question: Does the prayer violate the First Amendment
“establishment of religion” clause?
This decision was 6 – 1, as Justices Frankfurter and White
were unable to vote
Yes, even under the non-compelling conditions of the
prayer, the prayer is unconstitutional, a religious
activity by nature
Legal Impact:
Series of cases: Establishment Clause of the First
Amendment to the Constitution was used to rid of different
kinds of out-of-context religious activities
Religion had, up to this point in history, been a part of
public ceremony
Religion:
The Rehnquist Court
Rosenberger v. Rector and Visitors of the
University of Virginia (1995)
Background:
University of VA had students make mandatory monetary
contributions to the University’s Student Activity Fee (SAF)
 money for printing costs for student organizations
“Wide Awake: A Christian Perspective” denied funding by
UVA’s SAF because a Christian-oriented magazine
Question: Does denial of funding to a magazine that “primarily
promotes or manifests a particular belief in or about a deity or
an ultimate reality” violate the Free Speech Clause of the First
Amendment?
Does the granting of funds from SAF to a religiously
inclined paper in UVA violate the Establishment Clause of
the First Amendment?
Decision: 5 – 4
The government cannot regulate speech based upon
content or message
The granting of funds does not violate the Establishment
Clause because the money was not raised by taxes, and
the student publication is neither a religious institution nor
a religious organization
Significance of Rosenberger v. Rector
Public facilities could thenceforth be used for religiouslymotivated presentations, as a form of free speech
Distinguished between content discrimination
(potentially allowed) vs. viewpoint discrimination
(banned), in the distribution of activities funds
This may remind one of “reasonable suspicion” vs.
unreasonable suspicion in Terry v. Ohio (1968) of the
Warren Court
Relevance to today:
As mandatory funding had created such controversy
that it led to a Supreme Court case, a relevant,
conciliatory ad appeared in The Cavalier Daily on
March 23, 2006:
“Any student who objects to the use of his or her
Spring 2006 Student Activities Fee payment to
support particular speech activities may obtain a
refund of $5.75 of that payment”
Gender/Sex:
The Rehnquist Court
Abortion
Roe v. Wade (1973) – prior to Rehnquist Era
Question: Does the Constitution embrace the right of
a woman to have an abortion?
Decision: 7 – 2: Yes
right to privacy protected by the Fourteenth
Amendment
Woman: total autonomy during first trimester 
different state laws for second and third trimesters
Affected legislation in 46 states
Webster v. Reproductive Health Services (1989): again,
5 – 4 decision
Chief Justice Rehnquist: majority decision
Roe v. Wade was not explicitly overruled, but abortion
restrictions were upheld
Planned Parenthood v. Casey (1992): a re-examination of
Roe
Decision: 5 – 4, upheld the validity of Roe 
Rehnquist dissents
Abortion in the New Millennium
Stenberg v. Carhart (2000)
Decision: 5 – 4, struck down state-level attempts
to ban late-term abortions
Justice William Rehnquist consistently does not
believe that abortion is a protected right;
"privacy" is not explicitly mentioned in the
Constitution
State Opposition: South Dakota
March 6, 2006: Governor Mike Rounds of South
Dakota signed into law a bill passed by the South
Dakota State Legislature
According to SD law: any abortion is a felony,
including one to terminate a pregnancy resulting
from rape and incest
The bill makes no exception for the health of a
woman, and scarcely allows an exception to save
the life of the mother
This may lead to another Supreme Court Case in
the near future
The sponsors of the SD law hope that Roe will be
overturned
Violence Against Women Act of 1994
Violence Against Women Act of 1994
Provided $1.6 Billion for the prosecution of
violent crime perpetrated against women
Increased pretrial detention of the accused
Mandated immediate sentences for those
convicted
Allowed civil redress if a case not pursued by
prosecutor
U.S. v. Morrison (2000): 5 – 4 decision
Part of the VAWA unconstitutional
Not provided for in either the Commerce Clause
or the Fourteenth Amendment to the Constitution
 Congress contradicted the Supreme Court’s decision
by re-authorizing the legislation in 2000, and again in
2005; the next re-authorization is to be 2010.
Romer v. Evans (1996):
Civil rights of homosexuals
Question: Does Amendment 2 of the Colorado State
Constitution, which prohibits extension of official
protections to victims of discrimination due to sexual
orientation, violate the Equal Protection Clause of the
Fourteenth Amendment?
Decision: 6 – 3
Amendment 2 explicitly denied equal protection of the
law to homosexual and bisexual persons
Amendment 2 targeted a certain group and weakened
their legal protections – a clear violation of 14th Amd.
This cannot be justified as having a “legitimate
government interest”
Justice Kennedy: "If the constitutional conception of
'equal protection of the laws' means anything, it must at
the very least mean that a bare desire to harm a
politically unpopular group cannot constitute a
legitimate governmental interest"
Again, Rehnquist dissents
Gender: Exclusive to Rehnquist
Gender and sexual orientation were
not issues during Warren Era
However, these are Civil Rights issues
Had Warren been presented with
these cases, he most likely would
have made different decisions than
did Rehnquist
Warren vs. Rehnquist on Race
This ties together Civil Rights, Criminal Procedures
Warren:
Pro-individual
Takes into account race and minority status
Made a connection between race and
punishment for criminality
Rehnquist:
Does not use race in any context
Would not accept any sociological studies that
show
race as an issue; no study interferes in decision
Warren Court vs. Rehnquist Court
Warren had a united court
Though the South was a region unto its own,
there was a liberal consensus during the Warren
Era
Warren Court reflected the nation, and gave it
legal leverage to transform the country
Rehnquist had a divided court
Rehnquist Court was faced with even more
controversial issues than was Warren
There was no particular trend in the nation as a
whole towards one opinion
The world is more complicated
Civil rights and democracy are being distorted by
traumatic events, e.g. 9/11
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