Professor Richard Re’s Foreword pursues a comparison between the Warren Court and the current Court in the hope that “[s]eeing the similarities between these two starkly opposed Courts” will dampen the deeply polarized “us/them dynamic [that] currently dominates our legal culture and overall political discourse” and “convince the two groups of ‘us’ that we have more in common than often supposed.”1
The similarities Re plumbs are fundamentally methodological: First, they lie in how the two Courts locate themselves with respect to a series of the “antinomies” that mark the “law’s deep structure.”2 According to Re, Courts with ideological supermajorities have incentives to embrace (i) discretion over constraint, (ii) purpose over text, (iii) reconsideration over precedent, and (iv) independence from, over deference to, the political branches because these four choices help them move the law in their preferred direction.3 So during the Warren Court era, that’s what liberals did, over the objection of conservative dissenters who invoked the opposite value in each of the antinomies.4 Now, there has been a “reciprocal transformation”: Today’s conservative supermajority elevates discretion, purpose, reconsideration, and independence while liberal dissenters insist on constraint, text, precedent, and deference.5
Second, in light of this deep structure, “theories capable of illuminating the Warren Court’s work [will] also have traction today.”6 In particular, Re argues that the current Court “follow[s]” the “logic of representation-reinforcement” that describes many of the Warren Court’s most significant decisions.7 And he suggests that the current Court, like the Warren Court, has exercised a “passive virtue[]” by avoiding controversial rulings that might spur outright political defiance.8
Re’s Foreword has so many dimensions worth further exploration. But while “law’s deep structure” may be one piece of the “constant terrain over which political winds blow and reverse,”9 it is not the only piece of constant terrain for American law. The best explanation for the Warren Court lies not in structure or “logic”10 but in experience11: a near-century in which the nation had failed utterly to fulfill the promise of equality the Reconstruction Amendments had made to Black Americans.12 When Chief Justice Warren arrived at the Supreme Court in the fall of 1953,13 “Jim Crow [still] reigned supreme.”14 Warren’s first achievement as Chief Justice was to bring the Court to unanimity in Brown v. Board of Education.15 Over the next decade, the Court spent much of its time confronting racial discrimination. Some of those cases simply extended Brown’s holding to civic life more generally.16 Beyond Brown, the Court’s experience with voting rights17 led it to uphold new legislation addressing Black disenfranchisement as an appropriate response to nearly a century’s worth of “unremitting and ingenious defiance of the Constitution.”18 And, in a host of other areas, cases arising out of the Civil Rights Movement prompted the Warren Court’s doctrinal innovation.
Part I of this Response argues that if its approach to questions of racial justice is a relevant axis on which to compare the Warren Court with the current Court, our “first blush” may be right: This is “a radically different court” and not a “successor in interest”19 — at least not if the interest at issue is in completing the Second Reconstruction.
Part II then turns to a central aspect of representation reinforcement: the commitment to judicial intervention when “the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out.”20 The Warren Court’s reapportionment cases are an epitome of this form of representation-reinforcing judicial review and, from Chief Justice Warren’s perspective, its most momentous decisions.21 What about the current Court? It has retreated from trying to prevent entrenchment in the redistricting process.22 Moreover, its most consequential decision, so far, has been Trump v. United States,23 which not only involved the most notorious example of an elected official trying to entrench himself, but also has licensed the executive branch to choke off channels of political change going forward.24
Finally, Part III returns to Re’s discussion of a particular judicial strategy. In his influential Foreword, Professor Alexander Bickel discussed what he denominated the “passive virtues” — various tools by which the Supreme Court can avoid deciding controversial issues when it is unnecessary or counterproductive to do so.25 In writing about the past Term and the numerous cases involving the second Trump Administration, Re praises the Court for what he (slightly) rebrands as its “impassive virtue.”26 The Court has been “savvy,” he writes, in nudging the Executive Branch to comply with the law “without creating a decisive clash or opportunity for disobedience.”27 But Re may be overoptimistic about the current Court’s ability to defend the rule of law through exercising this impassive virtue. The Warren Court parallel to which he points — Naim v. Naim28 — suggests why.29 Naim concerned the constitutionality of Virginia’s ban on interracial marriage.30 The Court dodged the question, even though it almost certainly lay within the Court’s mandatory appellate jurisdiction, out of concern that it might stiffen Southern resistance to the Court’s decision in Brown.31 But the collateral consequences of Naim offer a caution against the Supreme Court’s accommodating potential resistance.32 I worry that the Court’s decision in Trump v. CASA, Inc.,33 may actually embolden, rather than dampen, resistance to the rule of law by the Court’s “counterparty”34 — here, President Trump.
I. The Centrality of Race: A Different Arc of the Pendulum
The word “race” barely appears in Re’s Foreword at all.35 His discussion of race is limited largely to “what may be one of the Conservative Warren Court’s canonical cases in the making: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA).”36 He suggests that “the Conservative Warren Court can be viewed as updating the Elysian tradition” of protecting discrete and insular minorities because the Court based its decision striking down Harvard College’s affirmative action plan, at least in part, on the assertion that the plan had led to a decrease in the number of Asian Americans admitted.37
As Re observes, the SFFA Court also “elaborately invoked the precedent and legacy of Brown v. Board of Education.”38 No surprise there: “Precisely because Brown has become the crown jewel of the United States Reports, every constitutional theory must claim Brown for itself”; otherwise, it becomes a “theory without traction.”39 But it is worth understanding that however much the current Court invokes the legacy of Brown, it seems bent on dismantling the Second Reconstruction of which Brown was one precipitating element.
The Second Reconstruction involved a suite of transformative federal statutes designed to fulfill the promises of the Reconstruction Amendments.40 The most important of these were the Civil Rights Act of 1964,41 whose public accommodations provisions the Court upheld in Heart of Atlanta Motel, Inc. v. United States42 and Katzenbach v. McClung,43 and the Voting Rights Act of 1965,44 whose suspension of literacy tests and special preclearance regime the Court upheld in South Carolina v. Katzenbach.45 These statutes were critical to actually achieving the Warren Court’s racial justice goals. For example, it wasn’t until the Departments of Justice and Health, Education, and Welfare began to use their enforcement (and funding) authority under the 1964 Act that real school desegregation began in the South.46 And, within five years, federal examiners authorized by the Voting Rights Act registered almost as many African Americans in six Southern states as had registered in the previous century.47
Moreover, race — or more precisely, a concern with the pervasive and profound exclusion and mistreatment of Black Americans — exercised a “gravitational pull” across the areas where the Warren Court transformed American law.48 Consider just three examples: the First Amendment, federal jurisdiction, and the Reapportionment Revolution.
It is impossible to explain why the Court “change[d] a century of libel law”49 to provide significant First Amendment protection even for false statements without recognizing that Southern officials were using state defamation law as a “formidable legal bludgeon to swing at out-of-state newspapers”50 that reported on the activities of the Civil Rights Movement and Massive Resistance.51 Prior to the civil rights struggle, “[t]here had been no prior hints that the justices thought libelous statements were constitutionally protected.”52 And when Justice Brennan’s opinion for the Court in New York Times Co. v. Sullivan53 declared “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,”54 the debate on the table was over Black citizens’ claims for equality.55 So, too, the Court’s recognition of litigation as First Amendment–protected activity was a product of the Movement’s “strategy of systematic litigation,” and the Southern counterattack to crush the NAACP.56
The Warren Court’s expansion of federal jurisdiction was also inflected by race. Decisions like Monroe v. Pape57 (which essentially created the modern § 198358) and Townsend v. Sain59 and Fay v. Noia60 (which each expanded the availability of federal habeas61) “were deeply influenced by the Court’s mistrust of the willingness of state and local officials to deal fairly with racially charged issues.”62 So the Court gave the lower federal courts “front-line supervisory authority in racially charged settings over state and local institutions including criminal courts, police departments, detention facilities, highway departments, firefighters, transportation facilities, parks, public schools, and public housing authorities.”63
Finally, for our purposes (although the list could go on and on64), consider the Reapportionment Cases (to which I return in the next section).65 As I wrote in the Foreword a dozen years ago:
The [Warren] Court was aware that “much of its workload — particularly in the area of civil rights, where extremist politicians from underpopulated and disenfranchised ‘Black Belt’ regions were at the forefront of massive resistance — was an indirect consequence of malapportionment’s hold on state legislatures.” The Warren Court believed that democracy could be made to work better by including a broader cohort of citizens and by equalizing the weight of individuals’ votes. In this reformed process, politics would likely produce better outcomes — that is, fuller realizations of the Constitution’s commitment to liberty, equality, and opportunity.66
So what about the current Court and the Second Reconstruction? If this Court is anyone’s “successor in interest”67 in this respect, it’s an heir to the Waite Court and its 1883 decision striking down a public accommodations provision whose primary sponsor saw it as “the greatest achievement of Reconstruction.”68 In the Civil Rights Cases,69 the Court took the position that federal action to protect the interests of Black Americans was no longer necessary:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.70
That theory, of course, turned out to be woefully wrong about what stage the United States was in. Within a quarter century, every state in the Deep South (where the vast majority of Black Americans then lived) adopted a new constitution containing provisions designed to disenfranchise Black citizens.71 So much for protecting themselves through the “ordinary modes.”
Many Justices on the current Court have a similar time’s-up attitude.72 Perhaps the most succinct expression of this sentiment came in Justice Alito’s dissent in Ramos v. Louisiana.73 There, on the way to holding that the Sixth Amendment requires unanimity before a state can convict a person of a serious offense,74 the Court acknowledged that Louisiana’s anomalous contrary rule had been adopted at an 1898 constitutional convention whose “avowed purpose” was “to ‘establish the supremacy of the white race’”;75 the drafters had “sculpted” a “rule permitting 10-to-2 verdicts in order ‘to ensure that African-American juror service would be meaningless’” even if a Black venire member were selected to sit.76 Justice Alito responded to the Court’s recognition of this history by asking: “[B]ut what does that have to do with the broad constitutional question before us? The answer is: nothing.”77 Or perhaps quite a bit: When the eponymous Evangelisto Ramos was retried before a jury that had to reach a unanimous verdict, and thus couldn’t just ignore a minority viewpoint, he was acquitted and walked away a free man.78
Or consider Parents Involved in Community Schools v. Seattle School District No. 1,79 where the Court ended the efforts of two jurisdictions to create racially integrated schools through a relatively minor level of race-conscious student assignment.80 A plurality of the Court equated those efforts to the de jure discrimination against Black students of the pre-Brown regime.81 In a warped echo of the Warren Court’s 1968 declaration that “[t]he time for mere ‘deliberate speed’ has run out,”82 a plurality of the Parents Involved Court offered the slogan that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”83 In the aftermath of the Court’s decision, the percentage of Black students in Seattle’s most sought-after high schools decreased.84
But it is with respect to voting rights, a centerpiece of both the Warren Court’s representation reinforcement framework and the Second Reconstruction,85 that the current Court has been especially destructive. In Shelby County v. Holder,86 the Court struck down the formula governing the preclearance regime that required jurisdictions with a long history of discriminatory voting laws and depressed participation to show their new laws would have neither a discriminatory purpose nor a retrogressive effect before those laws could be implemented.87 To the Court, “the conditions that originally justified” the preclearance requirement no longer existed.88 The Justices’ optimism — if it was that — was misplaced. The decision unleashed a torrent of new restrictions on voting that made it harder for minority citizens to cast their ballots.89
Then, in Brnovich v. Democratic National Committee,90 the Court announced that “the degree to which a challenged [voting] rule has a long pedigree”91 or was “in widespread use when § 2 [of the Voting Rights Act of 1965] was adopted”92 should be a factor in the rule’s favor.93 That proposition runs headlong into the reason we have Section 2 in the first place. Congress undeniably amended Section 2 in 1982 to address the use of at-large elections in jurisdictions with significant minority populations.94 But at that time, more than three-quarters of cities in the Deep South and more than two-thirds of cities in the border states used at-large elections.95 If the Brnovich proposition had been in effect, the amended Section 2 would have been dead on arrival.
The Court may now be poised to gut Section 2 as a substantive or procedural matter. Or maybe both.
First, as to substance: Following the 2020 census, Louisiana drew a congressional plan that created only one majority-Black district (out of six).96 A district court held that that plan likely violated Section 2 by failing to draw a second district as well.97 The state legislature responded with a new map that created a second majority-Black district.98 This plan spurred a separate challenge alleging that the new plan was an unconstitutional racial gerrymander.99 The challengers there, a group of self-identified “non-African American voter[s]”100 raised arguments about why the particular remedial district was unlawful.101 But they also argued more fundamentally that the state could not defend its new plan by invoking the Voting Rights Act and the need to remedy the dilution of Black voting strength in the old plan: Regardless whether Section 2 could once have been justified, “[i]t’s time to retire the assumption” that federal law could require a remedial plan that deliberately creates majority-minority districts.102
The Supreme Court heard oral argument this past Term.103 But on its last day before it broke for the summer, rather than announcing a decision, the Court restored the case to the calendar for reargument.104 Five weeks later, the Court propounded its own question for the parties to address: “Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.”105 Justices Thomas and Gorsuch have already indicated that their answer to this question would be “yes”: Two Terms ago, in a similar case from Alabama, they argued that Section 2 is unconstitutional to the extent it requires taking race into account at either the liability phase (to show that it is possible to draw a majority-minority district — a “necessary precondition[]” in a vote-dilution case106) or the remedy phase (to create a district in which minority voters actually have an equal opportunity to elect their preferred representative).107 And while Justice Kavanaugh did not join them there, he floated the possibility that even if Section 2’s results test once was constitutionally permissible, it is unclear whether its race consciousness can “extend indefinitely into the future.”108
Second, even if the Court doesn’t gut the substance of Section 2, it may turn the statute into a dead letter, at the very least for the time being, by eliminating the ability of voters to bring suit. In Brnovich, Justice Gorsuch, joined by Justice Thomas, “flag[ged]” the question, raised by none of the parties, whether “the Voting Rights Act of 1965 furnishes an implied cause of action under § 2,”109 suggesting the question might be an “open” one.110 But the citations Justice Gorsuch offered antedate the 1982 amendments to Section 2,111 during which Congress “reiterate[d] the existence of the private right of action under Section 2, as has been clearly intended by Congress since 1965.”112
Nevertheless, in the face of forty years of Supreme Court cases adjudicating Section 2 claims brought by private parties, some lower courts accepted Justice Gorsuch’s invitation to revisit this question. After a full trial, a district court in North Dakota held that the state’s 2021 legislative redistricting plan diluted Native American voting strength in violation of Section 2.113 But the Eighth Circuit first held that Section 2 does not provide an implied right of action114 and then went further to hold that 42 U.S.C. § 1983, which provides an express cause of action for a state’s deprivation of rights secured by the “laws” of the United States,115 cannot be used to bring a claim that a state has denied the rights secured by Section 2.116
This summer, the Supreme Court stayed the court of appeals’ order remanding the case to the district court with directions to dismiss the complaint.117 But Justices Thomas, Alito, and Gorsuch stated that they would have denied the stay.118
In any era, Section 2 would become “an empty promise” if citizens were not “allowed to seek judicial enforcement of the prohibition.”119 But the promise would be even emptier today. The Trump Administration has taken the Justice Department’s Civil Rights Division out of the business of enforcing the Voting Rights Act, pivoting its focus (for the few remaining attorneys) to preventing alleged vote fraud.120 Most immediately when it comes to the Supreme Court, it has repudiated the Government’s amicus brief in Callais, which had argued that Louisiana had “a strong basis in evidence to believe that it needed to draw another majority-minority district to achieve Section 2 compliance.”121
In short, the Supreme Court has moved from being an “indispensable partner” in the Second Reconstruction122 to being its undoer. That is why, whatever the antinomial (if that’s the right adjective to refer to Re’s antinomies) or methodological similarities between the Warren Court and the current Court, I remain unconvinced that “the two groups of ‘us’ . . . have more in common than often supposed.”123
II. Representation Reinforcement: Herein of Revolutions and Coups
Re uses Professor John Hart Ely’s “theory of representation-reinforcement” to show how “the current Court frequently operates within some of the framework ideas that the Warren Court helped to establish.”124 He focuses on the counter-majoritarian role that theory plays with respect to judicial protection of minorities.125 Here, I want to focus instead on the pro-majoritarian role that the theory plays. As to this aspect of representation reinforcement, the Warren Court and the current Court are poles apart.
Ely identified two distinct circumstances warranting greater judicial scrutiny. The one on which Re concentrates is when elected officials “are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest.”126 But Ely also argued that courts should intervene when “the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out.”127
The Warren Court’s Reapportionment Cases are the most dramatic example in constitutional history of this latter form of intervention. Chief Justice Warren called Baker v. Carr,128 which held that claims of legislative malapportionment were justiciable,129 “the most important case of [his] tenure on the Court”130 and denominated Reynolds v. Sims,131 which imposed one-person, one-vote on state legislative apportionments,132 as the most important opinion he himself wrote.133
Those decisions — and Wesberry v. Sanders,134 which held that one-person, one-vote governed a state’s drawing of its congressional districts135 — responded to a deeply sclerotic situation in which politicians from underpopulated (usually rural and conservative) areas entrenched themselves in power as the nation became more urban and suburban.136 The Court’s announcement of one-person, one-vote had an immediate and dramatic effect. It required redrawing ninety percent of the U.S. House districts as well as “virtually every single seat in the upper houses of state legislatures and most of the seats in lower houses.”137 While much of the Court’s rhetoric sounded in the timbre of individual rights,138 the impulse behind the rule was profoundly majoritarian: Malapportionment undercut “democratic ideals of equality and majority rule.”139
The enduring effect of one-person, one-vote is that it requires decennial redistricting for nearly every multimember electoral body.140 Its impact on entrenchment has been a bit more equivocal. On the one hand, one-person, one-vote creates an automatic duty to revisit the existing allocation of political power every ten years, because existing allocations go out of compliance with the requirement of equal population districts after each census.141 On the other hand, “the necessity of tinkering with the lines every ten years can turn into an opportunity to redraw districts to shore up incumbents who otherwise might face defeat.”142
While the Warren Court was both anti-entrenchment and pro-majoritarian, the current Court is neither. And its lack of interest in policing redistricting comes at a time when “big data and modern technology” have reduced the constraining force of one-person, one-vote.143 In Rucho v. Common Cause,144 the Court held that although excessive partisan gerrymandering is problematic as a matter of democratic theory,145 “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”146
The current Court’s indifference to the attempts of the ins to ensure that they will stay in and the outs will stay out was on full display in Alexander v. South Carolina State Conference of the NAACP.147 The South Carolina Legislature wanted to make Congressional District 1 a safe seat for Republicans.148 After the 2020 census, the existing District 1 was overpopulated by about 88,000 people, and the adjoining District 6 was underpopulated by about 85,000.149 To comply with one-person, one-vote, the state could have transferred just the bulk of those 88,000 people.150 Instead, it “moved nearly 200,000 people into or out of the district.”151 And it did so while making sure that the Black percentage of the district — Black voters in South Carolina overwhelmingly vote Democratic — would not increase.152 The part of Charleston County that the legislature moved out of District 1 was disproportionately Black.153 “Of the 11 precincts with the largest Black populations, 10 were gone.”154
A three-judge district court, familiar with South Carolina politics, found that the configuration of Congressional District 1 was an unconstitutional racial gerrymander.155 But the Supreme Court, in a decision written by Justice Alito, reversed.156 In five years, the Court moved from Rucho’s acknowledgment that “[e]xcessive partisan[] . . . gerrymandering is ‘incompatible with democratic principles,’”157 even if federal courts can’t do anything about it,158 to a world in which a partisan desire to disadvantage a group of Black voters is evidence of legislative “good faith.”159 So much for the second strand of Elysian representation reinforcement theory.
But in a sense, all this pales next to the most significant Conservative Warren Court decision so far — a case fundamentally about a politician seeking to ensure that he will stay in and the outs will stay out no matter what: Trump v. United States.160 The case concerned a criminal indictment alleging that “after losing [the 2020] election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.”161 It’s hard to imagine any action more representation-undermining than that.
There are many things one might say about the Court’s response to Trump’s autogolpe. For example, was the Court’s delay in taking the case and its “expressly indeterminate” remand decision,162 which effectively foreclosed a criminal trial during the 2024 election season,163 an example of Re’s “impassive virtues”?164 Or was it an intervention that, in conjunction with the Court’s decision in Trump v. Anderson,165 “advanced the interests of a partisan-aligned candidate — at a heavy toll to constitutional mechanisms meant to enable democracy”?166 Either way, the decision in Trump v. United States has unleashed an administration that is comprehensively clogging the channels of political change.
Part of this democratic demolition may flow directly from the Court’s opinion, which removed an important constraint on the President’s ability to inflict pain on his political opponents.167 Among other things, Trump was alleged to have “attempted to leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors.”168 The Court held that a President “has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.”169 And because “the President cannot be prosecuted for conduct within his exclusive constitutional authority,” Trump was “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”170
Re argues that the Court’s ruling in Trump v. United States “signaled a willingness to check partisanship in the justice system, without passing judgment on Trump’s prosecution.”171 But, at least so far, the Court has shown little appetite for checking partisanship in the justice system that doesn’t touch on the prosecution of former Presidents. (I actually don’t think the prosecution of President Donald Trump for his role in the events of January 6 was partisan to begin with, but that’s neither here nor there.) In fact, the absolute immunity with respect to the President’s role in a critical piece of the justice system — federal criminal prosecutions — may have removed, rather than imposed, a check on partisanship.
Having been reelected in 2024, President Trump, once again, is using the Justice Department’s power and authority in partisan and representation-destroying ways. For example, he has repeatedly demanded the Department open investigations into, or prosecute, a long list of elected officials and public servants.172 He has “demanded that top Democratic donor George Soros and his son, Alex, face federal racketeering charges, making an unsubstantiated claim they are backing violent protests across the country.”173 He has instructed the Justice Department to investigate ActBlue, a Democratic fundraising platform.174 These actions “threaten to hobble Democrats’ ability to compete in elections for years to come.”175
The head of his egregious Weaponization Working Group — formed “to root out corruption and weaponization,”176 by which the Administration means, among other things, the January 6 prosecutions177 — has announced that if the Department determines that the targeted individuals can’t be charged with a crime, it will nonetheless “name” them and “shame” them, “in what would amount to a major departure from longstanding Justice Department protocols.”178 The Justice Department no longer has internal checks on its use of the law to go after the President’s political opponents because this Administration “has systematically and ruthlessly and successfully eliminated, with one exception . . . all internal legal resistance.”179
Meanwhile, the mission statement for the Civil Rights Division’s Voting Section has been revised so that it “barely mentions the Voting Rights Act and instead says the section will focus on preventing voter fraud — which is exceedingly rare — and helping states find noncitizens on their voter rolls (noncitizen voting is also exceedingly rare).”180 The effects on American democracy of Trump v. United States and the current Court’s other decisions aggrandizing presidential power may turn out to be every bit as profound as the effects the Redistricting Cases had.
III. Impassive Virtues and Robust Costs
Much of Re’s Foreword is written in an optimistic register: Like the Warren Court, the current Court is “well positioned to defend the rule of law.”181 He recognizes, however, one critical difference: “the Court’s counterparty.”182 The Warren Court faced recalcitrant state and local governments.183 And, ultimately, it could rely on the federal government to enforce both its judgments and its values.184 The current Court, by contrast, faces a President whose version of the rule of law is “I have an Article II, where I have the right to do whatever I want as president.”185 His Vice President has mused about defying the courts.186 And President Trump is seeking not to preserve the status quo, as the state and local officials who were counterparty to the Warren Court sought to do,187 but rather to radically transform American government and civil society.188 So he is a counterparty on a far greater scale than Southern jurisdictions once were.
Sometimes, the Court may face the prospect that issuing its preferred substantive ruling will prompt popular backlash that reduces the Court’s standing with the public or, worse, will trigger defiance that reveals the Court’s relative powerlessness (the “least dangerous branch” problem).189 These risks may lead the Court to “await [more] auspicious moments to rule”190 or “bide[] its time rather than running headlong into the fray.”191 This tactic is part of what Alexander Bickel meant by the “passive virtues” and Re rebrands (for no compelling reason in my view) the “impassive virtues.”192
As Re recognizes, the Warren Court twice took this path when it came to questions of racial justice. First, in Naim v. Naim,193 the Court disingenuously treated an appeal as somehow outside its mandatory appellate jurisdiction, “thereby punting on the constitutionality of antimiscegenation laws in the wake of Brown.”194 It did not strike down prohibitions on interracial marriage until a decade later in Loving v. Virginia.195 Second, the Court’s “‘all deliberate speed’ approach to remediation in Brown,”196 which was “chiefly concerned about white opposition,”197 left the Warren Court “largely absent without leave” when it came to actually desegregating Southern schools.198 Between Cooper v. Aaron199 and Green v. County School Board of New Kent County,200 the Court let a decade go by without a major opinion, leaving the task of achieving what integration could be accomplished to the lower courts.201
Re argues that in October Term 2024, the Supreme Court “made good use of the impassive virtues while grappling with the second Trump Administration.”202 He provides several examples of shadow docket decisions where he sees the Court as having “nudged” the Trump Administration toward complying with the law “while avoiding a head-on confrontation.”203
Re recognizes that uses of the passive/impassive virtues have always been controversial because they “risk elevating discretion and strategy at the expense of law and candor.”204 Most concretely, while the Court “delay[s]” action or “bides its time,”205 real people suffer. In the Warren Court era, it meant millions of children never got to attend a desegregated school and countless couples were denied legal recognition and protection for their relationships.206 In the current era, it means, for example, that thousands of government employees are thrown out of their jobs, perhaps for years, while they challenge terminations.207 Getting their jobs back, even with full backpay and retroactive seniority, won’t fully compensate them for what has happened. That is why, after all, “[a]n essential principle of due process” since the days of the long Warren Court is that the government provide a hearing and an opportunity to challenge its decision before firing an employee.208
But avoidance has another vice: Instead of dampening resistance to the Court’s preferred policy outcomes, it may actually embolden it.209 I worry that the message President Trump may be taking away from this first Term back in office is that he might as well push the envelope as far as possible — and certainly with regard to orders from lower federal courts. Even if he adheres to his Solicitor General’s pledge in Trump v. CASA to “respect the opinions and the judgments of the Supreme Court,”210 he may count on the fact that the Court “can’t reverse everything.”211
The Court’s approach in CASA illustrates the slipperiness of the passive/impassive virtues. The underlying cases concern an Executive Order declaring that the Fourteenth Amendment does not extend citizenship to persons “born in the United States” if neither of their parents is a U.S. citizen or lawful permanent resident.212 The order was swiftly challenged in several suits, including one brought by eighteen states.213
In each case, the District Court concluded that the Executive Order is likely unlawful and entered a universal preliminary injunction barring various executive officials from applying the policy to anyone in the country. And in each case, the Court of Appeals denied the Government’s request to stay the sweeping relief.214
The Government could have asked the Supreme Court to review the preliminary injunctions themselves. But that would have placed at issue the likelihood of success on the merits — that is, whether the Executive Order is inconsistent with the Fourteenth Amendment’s Citizenship Clause.215 Instead, the Government asked the Court to decide only whether federal courts have equitable authority to issue “universal injunctions” — that is, injunctions that go beyond providing full relief to the plaintiffs before them.216 In light of the Justices’ already announced skepticism about such injunctions,217 this question was designed to give the Administration something it could spin as a win on birthright citizenship regardless of how unconstitutional its policy is.
The Court played along. It decided the remedy issue without addressing “the question whether the Executive Order violates the Citizenship Clause or Nationality Act.”218 Both during oral argument and in the several opinions, the Justices recognized that this is a question that needs to be answered.219 Moreover, it is a pure question of law. There is no real need for percolation in the lower courts.220 So the Court could have added its own question presented, as it has often done,221 and did this past Term in Louisiana v. Callais.222 But instead, it postponed the day when it should tell the President that one of his signature policies is unconstitutional.
Conclusion
“[H]istory will be heard,” Chief Justice Roberts insisted in his opinion in Parents Involved,223 where he wrapped the decision to shut down efforts at voluntary integration in the mantle of Brown.224 The title of this Response borrows from Professor Charles Black’s Holmes Devise Lectures, The Unfinished Business of the Warren Court.225 Black, who as a young professor worked with the plaintiffs in Brown,226 described as central to the Warren Court the issue the current Court will soon have to confront: “the positive content and worth of American citizenship.”227 Black argued that this citizenship has three components: (1) “the right to be heard and counted on public affairs,”228 (2) “the right to be treated fairly when one is the object of action by that government of which one is also a part,”229 and (3) “the broad right to lead a private life” of one’s choosing without unjustifiable government interference.230 He showed how the Warren Court “affirmed, as no Court before it ever did, that this three-fold citizenship is to be enjoyed in all its parts without respect to race, ‘as far as constitutional law can accomplish it’ — the long-unhonored promise of the Slaughter-House Cases.”231
Of course, the Warren Court left some of this project unfinished. But I believe, and hope, that any Court will ultimately be judged not just on whether it “operates within some of the framework ideas that the Warren Court helped to establish,”232 but also on whether it has moved that work forward. If the current Court turns out to have undone that work, history will not remember it well.