Earl Warren and William Jennings Bryan

Earl Warren (left) and William Jennings Bryan (right)

March 19 was an ironic day that saw the birth of two antithetical men. William Jennings Bryan, born 1860, was one of the most gifted orators in history, a Democrat, and a populist hero, yet he lost almost every election he ran in. Earl Warren, born 1891, was a Republican who won almost every election he ran in, a populist’s nightmare, and the most important Supreme Court Justice of all time.

“Important” here has to be understood in the same sense that AFDC was “important” to the evolution of the American family. The horrors unleashed by the Warren Court did not by themselves transform American society any more than the Cultural Revolution by itself transformed China — changes were a-gonna come anyway — but they did indelibly transform the Supreme Court from doing law to doing politics.

Starting from easily defensible opposition to racial segregation (Brown v. Board of Education), Warren went on to outlaw prayer by schools (Engel v. Vitale), outlaw prayer in schools (School District of Abington Township v. Schempp), systematically redistrict rural communities out of state legislatures (Baker v. Carr, Reynolds v. Sims, Westberry v. Saunders), and turn accused criminals into a protected class (Mapp v. Ohio, Gideon v. Wainwright, Escobedo v. Illinois, Miranda v. Arizona). He did not enact Roe v. Wade (he just didn’t think of it!), but he certainly set that train wreck in motion.

It is difficult for us to comprehend fifty years later the extent of Warren’s transformation of the Supreme Court, so accustomed have we become to its changed role. When Warren took his oath as Justice in 1953, the Supreme Court was tasked with upholding the United States Constitution, including its checks and balances intended to prevent governmental overreach.

When he was finished with it in 1969, the Court’s role was reversed: rather than watchdogging governmental overreach, it existed primarily to give the Supreme Court’s Constitutional imprimatur to anything that was popularly considered “fair” (Obergefell v. Hodges, United States v. Windsor, Griswold v. Connecticut, and so on).

While the Court’s formal deconstruction into progressive politics has elated the social justice cognoscenti, they should not forget that it also led to Bush v. Gore: once the Supreme Court decided it could do anything it wanted, as long as it seemed “fair,” there was nothing to stop them — our most undemocratic, unelected governmental body of all — from choosing the President of the United States.

& beyond all that, please do:

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