Introduction
The Warren Court’s legacy is ubiquitous.1 With the eponymous Chief Justice Warren at the helm, the Supreme Court featured a strong majority of left-of-center jurists, and those “liberal lions” ruled (or roared) accordingly. Landmark rulings like Brown v. Board of Education2 and Miranda v. Arizona3 have occupied generations of law students, but they also shaped popular culture, becoming household phrases that still frame legal debate.4
Yet the American legal system has steadily grown more conservative ever since the Warren Court ended in 1969. From the mid-1970s to the mid-2010s, judicial power often favored conservatives, such as when the Court sided with George W. Bush to declare him the victor of the 2000 presidential election.5 Even so, the Justices kept the Warren Court’s memory alive through major liberal decisions like Boumediene v. Bush6 and Obergefell v. Hodges.7 The last ten or so years of this period were often called the Kennedy Court, after its pivotal “swing Justice.”
This persistent trend to the right reached a tipping point in late 2020 with the death of Justice Ginsburg. When Justice Barrett arrived, the Court acquired what myriad commentators describe as a “conservative supermajority.”8 The result was an avulsive shift to the right on issues like abortion9 and affirmative action.10 Even more importantly, the Court became almost uniformly conservative in its rulings. When the Justices issue left-of-center decisions, they are almost always narrow or consistent with prior law.11 The question is no longer whether the Court will break left or right with respect to a salient legal issue. The only practical question is: “How far to the right?”
We might call this new arrangement the “Barrett Court,” given its connection to the historic Justice Barrett appointment. Yet Justice Barrett neither leads the Justices like Chief Justice Warren nor controls outcomes like Justice Kennedy.12 The “Roberts Court” spans too wide a period to capture what is special about the last several years. Perhaps the “Trump Court” is fitting, given President Trump’s role in appointing the three key Justices who moved the Court to the right, to say nothing of his second term. But the Court that President Trump has helped create does not simply do his bidding13 — and is a critical counterweight to the second Trump Administration.
The best label adopts a historical, functional perspective. The present Court is a “Conservative Warren Court.”14 That is, it possesses the defining traits that the Warren Court did, but in political opposite. It has a strong majority ideological alignment. And it wields its power in pursuit of its ideological goals. Instead of being the most liberal Court in living memory, however, it is the most conservative.15 One might reach even further back in time and posit that the new Court is the “New Lochner Court,” but that label connotes specific ideological positions from the early twentieth century and has less resonance in our era.
The idea of a Conservative Warren Court is also helpfully jarring, combining as it does two ideas that legal culture typically treats as antonyms.16 This oxymoronic term accordingly primes us to look for differences as well as similarities. And much about our present judiciary is indeed fresh. As compared with the Warren Court, the current Court’s claim to legitimacy flows more from democracy and less from political impartiality, owing to the fact that it is the result of a generations-long legal and political movement.17 The current Justices are also more like scholars and less like statesmen. And when looking for institutional allies to promote its vision of the law, the present Court is more favorably disposed toward the states and less so toward the federal government, particularly administrative agencies.
The current Court, like its liberal predecessor, marks a turning point in the direction of legal culture — or, more accurately, in the direction of America’s two competing legal cultures. The Warren Court remains associated with dynamic decisionmaking rooted in informal considerations and an attention to fairness.18 By comparison, the current Court hews closer to originalism, textualism, and other formal modes of legal inquiry.19 Yet there is no inherent or necessary connection between liberalism and functionalism or between conservativism and formalism. These contingent connections were instead forged primarily during the Warren Court, when a strong liberal majority embraced functionalism to propound its ideology. Conservatives reacted by clinging to formalism as a mode of critique. Now, however, conservatives have the incentive to embrace functionalism, and liberals have reason to be formalist.
The result is an emerging legal realignment with vast implications for legal culture and judicial decisionmaking.20 If the battle lines over judicial politics have increasingly blurred in recent decades,21 they are now dramatically shifting positions. In general, conservatives are becoming enthusiastic about atextual interpretation, substantive due process, permissive rules of standing, and recourse to foreign law. At the same time, liberals are increasingly insisting on strict adherence to texts, fidelity to historical understandings, stringent justiciability rules, and other modes of judicial restraint. These repositionings have already had some dramatic implications, but their full import is still being worked out. In the meantime, legal culture should become more attuned to the virtue of personal consistency and the peril of partisan hackery.
Against that backdrop, the Conservative Warren Court is well positioned to defend the rule of law. The Justices are popular among conservative Americans.22 That popularity stems primarily from the Court’s conservative orientation but also from other factors, such as the fact that President Trump has appointed three Justices. Moreover, a large supermajority of Americans believe that the executive branch should comply with court orders.23 Finally, the Supreme Court’s conservative orientation makes it likely to approve, and thereby legitimate, most (not all) of the second Trump Administration’s policies.24 At least at its outset, the Administration has much to gain from respecting this Court, and much to lose by crossing it.
These conclusions have broader implications for debates regarding court reform. True, fundamental court reform would have been tempting for liberals — perhaps irresistibly so — had it been politically feasible during the Biden Administration. Yet that short-term gain would have come with a massive cost: the delegitimation of the courts as nonpartisan actors, particularly in the eyes of conservatives. Had the Court been “expanded” or packed during the Biden Administration, it would now lie squarely in the political crosshairs of the second Trump Administration. With benefit of hindsight, we can see that the left had something rather large to gain by preserving the federal judiciary in its current, unreformed configuration — namely, the promise that the courts will be able to check conservative administrations such as the second Trump Administration.
Why pursue the comparison between the current Court and the Warren Court? The simplest reason is that the comparison illuminates significant truths about our law and legal system. Both the mechanisms and the directions of legal change recur throughout history, and it is worth trying to understand this partially cyclical process. A more situational reason is ethical. An us/them dynamic currently dominates our legal culture and overall political discourse. For one group of “us,” the Warren Court is nothing short of legendary; for another “us,” the current Court is largely composed of living legends. Seeing the similarities between these two starkly opposed Courts might help to convince the two groups of “us” that we have more in common than often supposed.
Most fundamentally, I aim to describe and celebrate the underlying structure of American public law. The law of the moment, important as it is, exists atop or within a deeper system that perseveres across generations, even as it accommodates change. The law’s deep structure is a constant terrain over which political winds blow and reverse, prompting legal actors to stand their ground or else reposition. This complex arrangement explains how today’s Justices can both mediate and check politics, much as they did during the comparably turbulent and convulsive years of the Warren Court. Despite its own strong ideological orientation, the Supreme Court continues to apply principles that are meaningfully distinct from the dictates of partisanship. That abiding system of law and legal change may not be ideal. But it is worth preserving.
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* Professor, Harvard Law School. This essay is dedicated to Fred Schauer, author of the 2005 Term Foreword, who pursued the truth with a smile and helped others along the way. I am indebted to many commentators including Jonathan Adler, Akhil Amar, Jack Balkin, Will Baude, Rachel Bayefsky, Josh Blackman, Niko Bowie, Sam Bray, Mary Anne Case, Guy-Uriel Charles, Justin Driver, Kristen Eichensehr, Bridget Fahey, Jack Goldsmith, Tara Grove, John Harrison, Rick Hasen, Randall Kennedy, Mike Klarman, Genevieve Lakier, Tyler Lindley, Leah Litman, Hashim Mooppan, Michael Moreland, Sam Moyn, Rick Pildes, Alex Potapov, Scot Powe, Dave Pozen, Zach Price, Jed Purdy, Chris Re, Daphna Renan, Micah Schwartzman, Kannon Shanmugam, Seana Shiffrin, Reva Siegel, David Strauss, Laura Weinrib, Ted White, and participants at a conference hosted by the Constitutional Law Institute at the University of Chicago Law School. Special thanks to the Harvard Law Review editors as well as to Angie Cui and Dina Kuttab for brilliant research assistance. All mistakes are the author’s.