SUPREME COURT OPINIONS: The Warren Court (1953 - 1969)
1954
Brown v. Board of Education of Topeka, Kansas
Chief Justice Earl Warren
Held that racial segregation in public education, even in comparable
facilities, violated the equal protection clause of the 14th
Amendment to the Constitution, in effect, that "separate but equal"
is unconstitutional. Brown held "separate" inherently unequal and
specifically overruled Plessy v. Ferguson. The following
year, Brown II established the framework for remedying
segregation in education, though the process would take decades,
and still falls short of completion.
1961
Mapp v. Ohio, 367 U.S. 643
J. Tom C. Clark, C.J. Warren, J. Frankfurter, J. Brennan, J.
Whittaker
Concurrance: J. Hugo Black
Concurrance: J. William O. Douglas
Separate: J. Potter Stewart
Dissent: J. John Marshall Harlan
Mapp stems from the warrantless, and therefore illegal, search of
Mapp's residence resulting in the discovery of lewd material, for
possession of which she was prosecuted and found guilty. Although
the primary question before the Court was the constitutionality of
Ohio's law against possessing such materials, the majority chose to
decide the case on a secondary issue: whether the exclusionary rule,
which prevented the use a trial of evidence gained in violation of
the 4th Amendment, and which applied to federal courts, should be
applied to state courts. Just twelve years earlier, the Court had
considered that question in Wolf v. Colorado, and decided that
while the 4th Amendment applied to the states, the exclusionary
rule did not. It was the Court's intention to revisit that decision.
Citing the 1914 case, Weeks v. U.S., which had applied the
exclusionary rule to federal courts, Clark matched the 4th
Amendment's prohibition of illegal search and seizure with the 5th
Amendments right against self- incrimination, writing: "If letters
and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of
the Fourth Amendment declaring his right to be secure against such
searches and seizures is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution." It
was Clark's opinion that if the 4th Amendment applied to the states,
as Wolf said it did, then the exclusionary rule must also, and for the
same reason as in federal courts — without the rule the right would
be meaningless. That fact alone made it more than a judicial
"remedy" and turned it into a constitutional principle; a critical
difference, because while the court could impose constitutional
principles on the states, it had no power to make what amounted to
a mere "rule of evidence" for their courts.
Black drew the linkage between the 4th and 5th even more sharply.
While the exclusionary rule was in one part remedy against the use
of evidence improperly gained under the 4th; it was the 5th that
gave it the stature of a constitutional principle, since illegally seized
evidence was tantamount to a forced confession — a violation of
the citizens right against self-incrimination. He also argued that a
broad interpretation of constitutional protections of persons and
property was the only way to preserve them. He finally pointed out
that, from a practical aspect, the exclusionary rule was a clearer and
more certain guideline to what could be used as evidence under
questionable circumstances than the Court's prior "shocks the
conscience" rule.
Douglas' opinion basically followed Clark's, though he seemed to
be less concerned whether the exclusionary rule was remedy —
though he found it superior to all others — or principle.
Stewart avoided the entire controversy and ruled on the original
question, finding that Mapp's conviction for possession of lewd
materials was an unconstitutional violation of her 1st Amendment
rights as applied to the states by the due process clause of the 14th
Amendment.
1962
Engel v. Vitale, 370 U.S. 421
Justice Hugo Black, C. J. Warren, J. Clark, J. Harlan, J. Brennan
Concurrence: Justice William O. Douglas
Dissent: Justice Potter Stewart
J.J. Frankfurter and White did not participate in the decision
In Engle the Court found that a state-composed prayer recited in
public schools, even though it was non-deniminational, and even
though no child was required to participate in it, was
unquestionably a religious exercise and therefore a clear violation
of the religious establishment clause of the 1st Amendment.
In writing the decision, Black first pointed out that no party in the
case had denied that the prayer was religious; in fact, all had
admitted it. He next pointed out that the fact that it was nondenominational and voluntary was irrelevant — the former didn't
make it less religious, and the latter didn't make it less of an
establishment. He wrote: "The Establishment Clause...does not
depend upon any showing of direct governmental compulsion and
is violated by the enactment of laws which establish an official
religion whether those laws operate directly to coerce nonobserving
individuals or not." He finally noted that the separation of church
and state was intended by the Founders to protect both.
Concurring, Douglas went futher than Black on the question of
voluntariness: "...no matter how briefly the prayer is said...the
person praying is a public official on the public payroll, performing
a religious exercise in a governmental institution. It is said that the
element of coercion is inherent in the giving of this prayer. If that is
true here, it is also true of the prayer with which this Court is
convened, and of those that open the Congress. Few adults, let
alone children, would leave our courtroom or the Senate or the
House while those prayers are being given. Every such audience is
in a sense a "captive" audience." In what may be called a nod to
reality, Douglas underscored the inherently coercive nature of even
voluntary prayer.
1963
Gideon v. Wainwright, 372 U.S. 335
Justice Hugo Black
Separate: Justice William O. Douglas
Concurrence in Result: Justice Tom Clark
Concurrence: Justice John Marshall Harlan
Gideon extended the right to counsel in non-capital cases —
incumbent on the federal government through the Sixth
Amendment — to the states.
In writing for the Court, Black simply concluded that the "due
process" required of the states by the Fourteenth Amendment had to
include the Sixth Amendment's right to counsel. He wrote,"...reason
and reflection, require us to recognize that, in our adversary system
of criminal justice, any person haled into court, who is too poor to
hire a lawyer, cannot be assured a fair trial unless counsel is
provided for him. This seems to us to be an obvious truth." Black's
opinion reflected his own view that the 14th Amendment
incorporated the entire Bill of Rights and applied it to the states.
Clark's concurrence rejected the distinction between capital cases,
where counsel had previously been required, and non-capital cases,
for which Gideon created that requirement: "I must conclude...that
the Constitution makes no distinction between capital and
noncapital cases. The Fourteenth Amendment requires due process
of law for the deprival of "liberty," just as for deprival of "life," and
there cannot constitutionally be a difference in the quality of the
process based merely upon a supposed difference in the sanction
involved."
Harlan, ever the conservative, made it quite clear that his
concurrence was based on what he saw as the slow evolution of the
Court toward the Gideon result. Moreover, he was careful to point
out that: "When we hold a right or immunity, valid against the
Federal Government, to be [essential to due process] and thus valid
against the States, I do not read our past decisions to suggest that,
by so holding, we automatically carry over an entire body of federal
law and apply it in full sweep to the States...In what is done today, I
do not understand the Court to...embrace the concept that the
Fourteenth Amendment "incorporates" the Sixth Amendment as
such."
In his very brief separate opinion, Douglas took square aim at the
latter view of Harlan: "My Brother HARLAN is of the view that a
guarantee of the Bill of Rights that is made applicable to the States
by reason of the Fourteenth Amendment is a lesser version of that
same guarantee as applied to the Federal Government...But that
view has not prevailed, and rights protected against state invasion
by the Due Process Clause of the Fourteenth Amendment are not
watered-down versions of what the Bill of Rights guarantees."
1964
Heart of Atlanta Hotel Inc. v. United States, 379 U.S. 421
Justice Tom C. Clark, C.J. Warren, J. Harlan, J. Brennan, J Stewart,
J. White
Concurrance: J. Hugo L. Black
Concurrance: J. William O. Douglas
Concurrance: J. Arthur J. Goldberg
The case arose as a challenge by the Heart of Atlanta Hotel, which
in the course of its business refused accomodations to blacks, to the
right of the federal government to end its discriminatory practices
through the Civil Rights Act of 1964. Particularly, it challenged the
idea that such a prohibition could be accomplished through
Congress' powers under the Commerce Clause (Art. I, § 8, cl. 3) of
the Constitution, on which the Civil Rights Act was based.
Writing for the majority, Clark found that Congress did have such
power under the Commerce Clause. While agreeing that commerce
occuring within a single state was beyond Congress' power to
regulate, the Heart of Atlanta's business included out-of-state guests
— for whom it actively advertised. Its effect on commerce was the
burden it, and businesses like it, placed on an entire class of
individuals traveling interstate; an activity clearly falling within
Congress' commerce power. To the objection that Congress was
actually stretching its commerce power to right a moral, not an
economic problem, Clark countered that Congress' motives were
secondary to the fact that since Gibbons v. Ogden in 1824 Congress'
power over interstate commerce was plenary.
Black's concurrence echoed Clark, but added two things. The first
was Ollie's Barbeque, a second challenger to the Act which, though
its clientele was almost exclusively local, Black found to be within
the power of the Act because it purchased a substantial portion of
its supplies — mostly beef — from outside of Georgia. Second,
Black pointed out that along with the Commerce Clause, which
allowed Congress to regulate interstate commerce, came the
Necessary and Proper Clause (Art. I, § 8, cl. 18) which allowed
Congress to regulate a purely single-state activity if
iteffected interstate commerce. Thus, direct ties to interstate
commerce weren't necessary to bring a discriminating business
within the requirements of the Act.
Concurring, Douglas agreed with the judgment of the majority, but
was dissatisfied with its reasoning. He argued that the Commerce
Clause did, indeed, give Congress power to enforce the Act,
pointing out that Congress had chosen that particular constitutional
foundation to avoid the implications of the 1883 Civil Rights
Cases in which the Court had denied Congress the right to enforce
the "equal protection" clause of the 14th
Amendment against private individuals and businesses, since the
14th Amendment applied only to the states, their actions and
agents. Arguing that the Commerce Clause didn't cover enough,
and would leave the door at least ajar to continuing discrimination,
he urged a return to the 14th Amendment, reasoning that
discrimination, even by private entities, did involve state action
through the enforcement of trespass and other laws against blacks
attempting to purchase goods, service and accomodations. In short,
the states violated the equal protection clause of the 14th
Amendment when they assisted private businesses in
discrimination, and therefore left themselves open to Congressional
regulation.
1965
Griswold v. Connecticut, 381 U.S. 489
Justice William O. Douglas
Concurrance: J. Arthur Goldberg, C.J. Warren, J. Brennan
Concurrance in Judgment: J. John Marshall Harlan
Concurrance in Judgment: J. Byron White
Dissent: J. Hugo Black, J. Stewart
Dissent: J. Potter Stewart, J. Black
Griswold held unconstitutional a Connecticut law, intended to
prevent adultery and promiscuity, which banned the the use of
contraceptives, and which also made illegal the aiding or abeting
such use. The appellant, Griswold, was Executive Director of the
Planned Parenthood League of Connecticut, and was arrested under
the law for providing contraception to a married client. He
challenged his conviction as unconstitutional under the 14th
Amendment.
Wrining for the Court, Douglas focused on the rights of the married
couple, not those of Griswold: theirs had been the crime that
Griswold had only abetted. Citing precedent, he showed that the
Court had frequently found rights which, though not specifically
enumerated in the Constitution, nonetheless logically flowed from
them, and which gave them meaning. These existed as a sort of
supertext behind the specifics of the Bill of Rights. Douglas called
them "penumbras" and wrote, "...specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance." Among these
unenumerated rights, derived mainly from the 1st Amendment, but
also from the 3rd, 4th and 5th, was the right to privacy. Douglas
backed this right with the 9th Amendment's guarantee of
unenumerated rights, and applied it to the states through the
fourteenth. Finally, within this protected "zone of privacy" Douglas
squarely placed marriage, concluding that the Connecticut
statute, "...cannot stand in light of the familiar principle, so often
applied by this Court, that a governmental purpose to control or
prevent activities constitutionally subject to state regulation may
not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms."
Concurring, Goldberg relied even more heavily on the 9th: "The
Ninth Amendment simply shows the intent of the Constitution's
authors that other fundamental personal rights should not be denied
such protection or disparaged in any other way simply because they
are not specifically listed in the first eight constitutional
amendments." Further, like Douglas, Goldberg applied the
"substantive due process" theory to the 14th Amendment: certain
rights — ones not always clearly enumerated — generally were so
fundamental, or had through time become so fundamental, that they
required judicial recognition and application. Goldberg found
privacy to be among such rights, and he concluded that
Connecticut's purpose in having the law to be far out-weighed by its
intrusion on the privacy rights of married couples.
Harlan concurred only in the result, not in the reasoning of the
majority. Unlike many of the other justices who wrestled with the
extent to which the Due Process Clause of the 14th Amendment
actually applied the Bill of Rights to the states, Harlan argued that
Due Process was more than a conduit for the first ten amendments,
but stood on its own, founded on "...basic values 'implicit in the
concept of ordered liberty...'" He wrote, "While the relevant inquiry
may be aided by resort to one or more of the provisions of the Bill
of Rights, it is not dependent on them or any of their radiations. The
Due Process Clause of the Fourteenth Amendment stands, in my
opinion, on its own bottom." He concluded that the statute did
indeed violate basic values.
White, too, concurred in the result but not the reasoning. Avoiding
the larger issue of privacy, White focused on precedents
establishing rights surrounding marriage and family, found that
those rights were protected by the 14th Amendment, and concluded
that the Connecticut statute served no rational purpose that justified
their infringment.
1966
Miranda v. Arizona, 384 U.S. 436
Chief Justice Earl Warren, J. Black, J. Douglas, J. Brennan, J.
Fortas
Concurrence and Dissent: J. Tom C. Clark
Dissent: J. John Marshall Harlan, J. Stewart, J. White
Dissent: J. Byron R. White, J. Harlan, J. Stewart
In Miranda the Court specifically brought the police interrogation
room within the Fifth Amendment's right against self-incrimination
— not done since the Bram decision in 1897and gave rise to the socalled "Miranda" rights.
The four cases falling under Miranda all involved confessions
made during police interrogation. The question for the Court was
whether the suspects in those cases made those statements
voluntarily and in full knowledge of their Fifth Amendment
privilege against self-incrimination. Warren concluded that
while "...we might not find the defendants' statements to have been
involuntary in traditional terms...", the circumstances under which
they were made — incommunicado, custodial police interrogation,
and the atmosphere of intimidation that went with it — made them
presumptively involuntary. He wrote: "Unless adequate protective
devices are employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly
be the product of his free choice. From the foregoing, we can
readily perceive an intimate connection between the privilege
against self-incrimination and police custodial questioning."
The protective device mandated by the decision was to guarantee
that suspects were first fully informed of their rights — to remain
silent and to counsel — before any questioning began, and that
questioning should cease should the suspect choose to exercise
those rights. Thus the Miranda decision created a "bright line" rule
based on a pre-interrogation "reading of rights" to suspects without
which no subsequent statement could be considered voluntary.
As for the connection between self-incrimination and interrogation,
Warren answered the charge from dissent that the Fifth Amendment
only applied to testimony at trial, not to interrogation, by pointing
out that statements brought to trial from interrogation were as
incriminating as anything said in open court, and in the case of
confessions, more so. The guarantee was meaningless if it did not
apply to interrogation: "Without the protections flowing from
adequate warnings and the rights of counsel, all the careful
safeguards erected around the giving of testimony...would become
empty formalities in a procedure where the most compelling
possible evidence of guilt, a confession, would have already been
obtained at the unsupervised pleasure of the police..."
1967
Loving v. Virginia, 388 U.S. 1
Chief Justice Earl Warren, J. Black, J. Douglas, J. Clark, J. Harlan,
J. Brennan, J. White, J. Fortas
Concurrence: Justice Potter Stewart
The decision stems from the marriage of two Virginia residents,
Mildred Jeter, a black woman, and Richard Loving, a white man, in
the District of Columbia — where their marriage was legal — and
their return to Virginia — where it was not. They were prosecuted
under Virginia's anti-miscegenation law which prohibited marriage
between whites and members of another race. The trial judge
sentenced them to a year in prison, but suspended the sentence
provided the couple leave the state for 25 years. Their appeals
eventually came before the Court.
The question came to revolve around the 14th Amendment and its
Equal Protection clause. Virginia argued that since the law, and the
penalty, applied equally to both whites and blacks there was no
equal protection problem. The Court disagreed. Writing for the
majority, Chief Justice Warren pointed out that where the state's
position might otherwise be valid, the issue of distinctions drawn
on the basis of race was too weighty a matter to let pass on the basis
of equal application: "In the case at bar, however, we deal with
statutes containing racial classifications, and the fact of equal
application does not immunize the statute from the very heavy
burden of justification which the Fourteenth Amendment has
traditionally required of state statutes drawn according to
race."Further on in the decision, he went on to say: "At the very
least, the Equal Protection Clause demands that racial
classifications, especially suspect in criminal statutes, be subjected
to the "most rigid scrutiny,"...and, if they are ever to be upheld, they
must be shown to be necessary to the accomplishment of some
permissible state objective, independent of the racial discrimination
which it was the object of the Fourteenth Amendment to eliminate.
Indeed, two members of this Court have already stated that they
cannot conceive of a valid legislative purpose . . . which makes the
color of a person's skin the test of whether his conduct is a criminal
offense."
For the Court, Virginia's stated purposes for the statute — ""to
preserve the racial integrity of its citizens," and to prevent "the
corruption of blood," "a mongrel breed of citizens," and "the
obliteration of racial pride,"" — clearly fell short of adequate
justification, especially as the statute only prohibited intermarriage
with whites, which the Court correctly identified as "...an
endorsement of the doctrine of White Supremacy."
Finally, calling marriage "...one of the "basic civil rights of man...",
Warren concluded that the Virginia statute also violated the
couples' due process rights by denying them a fundamental liberty
without due process of law.
1969
Brandenburg v. Ohio
Per Curiam
Established that even speech advocating violence, so long as it is
not "directed to inciting or producing imminent lawless action and
is likely to incite or produce such action", is constitutionally
protected.