Instructor:
Winston Bowman
Office Hours: TR 10:30am-12pm and by Appointment (OS 119)
wbowman@brandeis.edu
The Warren Court and Social Justice
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is, but let me explain it once more,
Law is The Law.
-- W.H. Auden
Course Syllabus
Introduction:
As this excerpt from Auden’s “Law Like Love” suggests, the law is simultaneously
concrete and ephemeral, clear and abstruse. It means different things to different people. Yet
nothing is more important to modern society. Law informs every relationship, every interaction,
and every activity in which we will ever engage. Given the law’s power over our lives, its history
holds an intrinsic value and an irresistible interest. At the same time, in Justice William J. Brennan,
Jr.’s words, “[l]aw cannot stand aside from the social changes around it.” This class seeks to track
the reciprocal relationship between legal and social change by interrogating an astonishing
historical moment when the U.S. Supreme Court self-consciously operated as an engine of social
transformation.
During Earl Warren’s tenure as Chief Justice (1953-1969), the Court championed the cause
of social justice with a zeal unmatched in any other period of American history. With the famed
desegregation case Brown v. Board of Education (1954), Warren announced this audacious
mission in auspicious fashion, repudiating decades of precedent in an attempt to resolve what
W.E.B. Du Bois had already described as “the problem of the twentieth century.” The Court did
not stop there, however. Throughout the 1950s and 60s, Warren and his brethren expanded the
protections of expression and religious practice enshrined in the First Amendment, redefined the
meaning of “liberty,” “due process” and “equal protection,” and created new protections for those
accused and convicted of serious crimes. To ensure everyone had access to these new and
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expanded rights, the Court liberalized restrictions on access to the political and legal processes.
This class examines each of these transformations in detail.
The course is ordered into several sections, each analyzing an area in which the Court made
important changes to existing legal doctrine and social dogma. These segments conclude with a
case study on the lasting consequences of the Court’s attempt to reimagine the Constitution and
the political and social institutions it orders.
Like history, law is both a literary art and a social science. Thus, we will be focusing on
primary and secondary written sources that attempt to express and contextualize the law at a
particular moment in time. While this is primarily a class on history, rather than law, much of the
action takes place in the courtroom and, consequently, many of the readings are written with a
legal audience in mind. The course calls on you to read these sources carefully and grapple with
them. This is seldom easy, but always rewarding.
Required Readings:
Most of the readings in this class are edited cases and photocopied articles and book
chapters available through the course LATTE page. In addition to those readings, there are three
required texts:
Morton J. Horwitz, The Warren Court and the Struggle for Justice (New York: Hill and
Wang, 1998).
Michael J. Klarman, Brown v. Board of Education and the Civil Rights Movement (New York:
Oxford University Press, 2007).
Earl Warren, The Memoirs of Chief Justice Earl Warren (Madison Books, 2001) (you can also
find the pertinent portions of this book on LATTE).
These books are on reserve at the library and are widely available for purchase. Readings from
these books are referred to hereinafter by the author’s last name. You should print out all other
readings and bring them to class.
1.
Informed Participation:
25%.
With relatively few exceptions, class sessions will be based primarily on discussions of the
reading assigned for each meeting. If you do not attend this class prepared to contribute
to these discussions, your grade will suffer along with the class.
2.
Short Papers:
25% total.
You will write two short (four-to-five-page) papers on assigned topics that call on you to
argue an historical position based on your interpretation of the class readings. Your best
grade will account for 15% of your grade; your worst grade will count for 10%.
3.
Thematic Paper:
25%.
You will write one (1) long (eight-to-ten-page) paper on any major legal or political issue
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related to this course. This paper must draw on at least five approved primary sources we
have not read in class. It must also incorporate insights from at least two secondary sources
we have read during the semester and two we have not discussed. You will be required to
submit a brief summary of your topic and a proposed list of sources on or before the date
listed below for my approval. You may replace the paper with another (approved) project
(such as a website) that contains comparable information.
4.
Final Exam:
25%.
The in-class final exam will feature a combination of short answer and essay questions.
Other Policies:
1.
Academic Honesty:
Plagiarism is stupid and wrong. Do not do it. If you are in any doubt as to the University’s
policy on academic dishonesty, please consult Brandeis’ Rights and Responsibilities
Handbook. You must always cite any sources on which you rely. All cases of academic
dishonesty will result in an automatic “F” grade on the assignment and immediate
disciplinary referral.
2.
Accommodations:
If you have a documented learning disorder or other disability that may require special
accommodations, please see me as soon as practicable to make appropriate arrangements.
3.
Laptops:
For most of human history, everything went fairly well. Then IBM released the first laptop
and humanity pretty much went to hell in a hand-basket. Laptops are noisy, irritating,
distracting, heavy, ugly things. As a result, I discourage their use in this class. If, however,
you feel a compelling need to bring noise, irritation, distraction, weight, and ugliness into
this class, I feel powerless to stop you.
4.
Phones:
Endeavor to turn your mobile phones and pagers off before class. Text messaging during
class is unforgivably rude. Do not do it.
5.
Attendance:
As noted above, attendance will count toward your participation grade for this class.
Dispensations for excused absences will be made on the basis of a verified medical
condition or family or personal emergency only.
6.
Late Papers:
Turn your papers and other assignments in on time. Any late assignments will be graded
down one half-grade for each day between the due date and the time you hand in the
paper.
7.
Email:
I frequently communicate with the class and individual students via email. Students should
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check their email regularly and respond to any queries promptly.
SCHEDULE
Section I: Introduction
Week 1:
Aug. 28:
Course Introduction: The Warren Court in the Public Imagination
Week 2:
Sep. 2:
Readings:
Conditions Precedent: Constituting the Warren Court
Horwitz, 3-14.
Warren, 1-32.
(1/3 of class) Murphy, Wild Bill.
(1/3 of class) Parrish, Felix Frankfurter and his Time.
(1/3 of class) Suitts, Hugo Black of Alabama.
Section II: Race
Sep. 4:
Readings:
Conditions Precedent: Race
Klarman, 3-54.
Week 3:
Sep. 9:
Readings:
School Desegregation
Klarman, 55-78.
Bolling v. Sharpe (1954).
Warren, 275-320.
Sep. 11:
Readings:
Massive Resistance
Klarman, 79-188.
Week 4:
Sep. 16:
Readings:
Toe-to-Toe with Jim Crow
Loving v. Virginia (1967).
Green v. County School Bd. (1968).
Horwitz, 32-51.
Sep. 18:
Readings:
Desegregation in International Perspective
Mary L. Dudziak, Desegregation as a Cold War Imperative .
Martha Minow, On Other Shores.
Week 5:
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Sep. 23:
Readings:
Audio clip:
Legacies: A Pyrrhic Victory?
Peter Irons, Jim Crow’s Children.
Justice Breyer’s speech re: Parents Involved in Community Schools v.
Seattle (2007) (available on LATTE).
Sep. 25:
NO CLASS
Week 6:
Section III: The First Amendment
Sep. 30:
Readings:
DUE:
Protecting Dissidence: The McCarthy Era
Horwitz, 52-73.
Paper 1.
Oct. 2:
Readings:
Protecting Dissidence(?): Vietnam
U.S. v. O’Brien (1968).
Irons, The Courage of Their Convictions: Mary Beth Tinker v. Des
Moines.
Week 7:
Oct. 7:
Readings:
Maintaining the Fourth Estate
New York Times Co. v. Sullivan (1964).
New York Times Co. v. U.S. (The Pentagon Papers Case) (1971).
Oct. 9:
NO CLASS
Week 8:
Brandeis Thursday
Oct. 13:
“A Wall of Separation”: The Religion Clauses
Readings:
Engel v. Vitale (1962).
Sherbert v. Verner (1963).
DUE:
Legacies: The “Culture Wars”
Jay Wexler, Holy Hullabaloos.
Johnson v. Texas (1989).
Thematic Paper Proposal.
Oct. 16:
NO CLASS
Oct. 14:
Readings:
Week 9:
Section IV: Due Process
Oct. 21:
“Green Pastel Redness”: The Problem of Due Process
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Readings:
Horwitz, 99-116.
Goldberg v. Kelly (1970).
Oct. 23:
Readings:
Legacies: Griswold’s Children
John Hart Ely, The Wages of Crying Wolf.
Carey v. Population Services (1977).
Week 10:
Section V: Criminal Justice
Oct. 28:
Readings:
Searching and Seizing
Mapp v. Ohio (1961).
Terry v. Ohio (1968).
Oct. 30:
Readings:
Gideon’s Trumpet, Gault’s Bombers and a Deafening Silence
Miranda v. Arizona (1966).
Tanenhaus, The Constitutional Rights of Children.
Yale Kamisar, Gideon v. Wainwright A Quarter-Century Later (skim).
Week 11:
Nov. 4:
Readings:
Legacies: Tinkering with the “Machinery of Death”
Furman v. Georgia (1972).
Gregg v. Georgia (1976).
Stevens, On the Death Penalty.
Section VI: Democracy
Nov. 6:
Readings:
“One Person, One Vote”
Horwitz, 74-98.
Week 12:
Nov. 11:
Readings:
DUE:
Making the Votes Count
Keyssar, Breaking Boundaries.
Paper 2.
Nov. 13:
Readings:
Legacies: A Civil Death
Richardson v. Ramirez (1974).
Week 13:
Section VII: Access to the Courts
Nov. 18:
Opening the Doors?
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Readings:
Bowman, Leaving the Doors Ajar.
Nov. 20:
Readings:
“Political” Questions
Powell v. McCormack (1969).
Massachusetts v. Laird (1970).
Week 14:
Nov. 25:
Readings:
Habeas Corpus
Yackle, The Story of Faye v. Noya.
Nov. 27:
NO CLASS
Week 15:
Dec. 2:
Readings:
Legacies: The Judicial Politics of Access
Boumediene v. Bush (2008).
Ashcroft v. Iqbal (2009).
Dec. 4:
Readings:
Backlash and Counter-Revolution(?)
Warren, 321-349.
Tushnet, William Rehnquist’s Court.
Thematic Paper.
DUE:
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