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The following is a series of questions posed by Ronald Collins to Geoffrey Stone and David Strauss in connection with their new book, Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (Oxford University Press, 2020).

Geoffrey Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. He served as dean of the law school from 1987-1994 and provost of the University of Chicago from 1994-2002. Stone was a law clerk to Supreme Court Justice William J. Brennan Jr. and before that a law clerk to Judge J. Skelly Wright on the U.S. Court of Appeals for the District of Columbia Circuit.

David Strauss is the Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School. Before joining the law school faculty, he worked as an attorney-advisor in the Office of Legal Counsel at the U.S. Department of Justice and was an assistant to the Solicitor General of the United States.

Stone and Strauss, along with Yale Law School professor Justin Driver, are the editors of the Supreme Court Review.

Welcome, Geoffrey and David, and thank you for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book.

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Question: Democracy and Equality is the 18th book in the Inalienable Rights series published by Oxford University Press. As the editor of the series, Geoffrey, congratulations on such an impressive array of books by everyone from Richard Epstein to Laurence Tribe and from Martha Nussbaum to Nadine Strossen. Might you tell us whats in the works for the next volume or two?

Stone & Strauss: By coincidence, the next two volumes in the series, which will be published in 2020, both deal with the issue of religion. In the 19th volume, Jack Rakove, a Pulitzer Prize-winning historian at Stanford, has written Beyond Belief, Beyond Conscience, which explores the evolution of religious freedom from the 16th century to the modern era, focusing especially on history, philosophy and political theory.

In the 20th volume, Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, and Howard Gillman, chancellor of the University of California, Irvine, have written The Religion Clauses: The Case for Separating Church and State, which focuses on what the authors see as the troubling directions our conservative justices are now taking insofar as they reject the idea of a wall separating church and state.

Question: The first book in the Inalienable Rights series was Richard Posners Not a Suicide Pact: The Constitution in Times of a National Emergency (2006). In the editors note to that volume, Geoffrey and Dedi Felman wrote: Rights invite discussion: What is a constitutional right? What are the counterbalancing duties?

In terms of the Warren Courts civil rights and civil liberties jurisprudence, what do you see as some of the major counterbalancing duties?

Stone: As a bit of background, I should explain that back in 2004 Dedi Felman, then an editor at Oxford, came up with the idea for the Inalienable Rights series. I had just published Perilous Times: Free Speech in Wartime (2004), and Dedi persuaded me to take on the challenge of serving as editor of this series. The goal was to produce a series of books, written by distinguished legal scholars, that would be relatively brief (roughly 40,000 words, lightly footnoted), that would deal with important issues of constitutional law and that would be both interesting to constitutional law experts and accessible to general readers. Dedi left Oxford shortly thereafter, and David McBride has taken on her role in the years since. Initially, we imagined that the series would consist of perhaps six volumes published over eight years. We never imagined that we would publish 20 volumes, with more no doubt to come. The authors in the series have included truly remarkable scholars, including not only the individuals you mention above, but also Cass Sunstein, Pam Karlan, Lee Bollinger, Mark Tushnet, Michael Klarman, and on and on and on.

In terms of your question about counterbalancing duties, I assume we were referring most fundamentally to the doctrine of precedent and to the obligation of justices not to reach results merely because they think those results reflect good public policy for the nation, but to honestly ground their decisions in principles of interpretation that are true to the fundamental concerns of specific constitutional provisions and to an approach to constitutional interpretation that is grounded in the aspirations of the Framers and in a principled understanding of the central reasons for judicial review.

As we hope to demonstrate in Democracy and Equality, in our view, although the justices of the Warren Court often confronted problematic precedents, they had a deep understanding of the most fundamental reasons for judicial review and of the essential role of our Supreme Court in our constitutional system most centrally, to make sure that majorities do not disregard the rights and interests of those without the political power to protect themselves, or abuse their power to manipulate the rules of democracy in order to ensure their continued dominance. As we argue in the book, the Warren Court confronted difficult issues of precedent, but did so in a manner that fulfilled the most central reasons for having a Supreme Court in the first place.

Question: As a matter of originalist jurisprudence, do you think Alexander Bickels memorandum for Justice Felix Frankfurter in Brown v. Board of Education (1954) carried the day, or do you think Raoul Berger had the better argument in his book, Government by Judiciary (1977), in which he argued that Bickels historical defense was untenable?

Stone & Strauss: The Warren Court, of course, never claimed to be originalist. In Brown, and then emphatically in Loving v. Virginia (1967), the case that struck down laws forbidding interracial marriage, the Warren Court was quite clear that it was not pretending to follow the original understandings. In that respect, the Warren Court was intellectually honest in a way that not everyone has been.

In fact, the question you ask, by itself, shows how impoverished originalist jurisprudence is. Bergers claim that the 14th Amendment was not understood at the time to establish a principle of racial equality is pretty clearly correct, even if some of Bergers specific arguments are flawed. So originalists have to tie themselves in knots to try to explain how originalism can be made consistent with cases like Brown and Loving. Bickels account essentially, to emphasize the principles underlying the 14th Amendment and its capacity for growth, rather than how people at the time understood it is of a piece with one of the ways originalists try to save their approach from generating unacceptable conclusions.

If we understand originalism that way, about principles and the capacity for growth, then it can be unobjectionable; everybody can be an originalist. But that version of originalism also doesnt really limit judges, decide controversial cases or explain how U.S. constitutional law develops.

Question: In your conclusion, you argue that the Warren Court would have rejected the Second Amendment argument in District of Columbia v. Heller (2008) on historical and textual grounds. I assume the same would hold true for the courts ruling in McDonald v. City of Chicago (2010), which applied the Second Amendment to the states.

If so, why did those originalist and textualist standards not defeat the constitutional claim in Malloy v. Hogan (1964)? The majority in Malloy, per Justice William Brennan, incorporated the Fifth Amendment privilege against self-incrimination against the states with little, if any, originalist support.

Stone & Strauss: Right the Warren Court was not, and did not purport to be, originalist, and thats true of the incorporation decisions, too. Justice Hugo Black emphasized the text and what he said were the original understandings, but his view was not accepted by the Warren Court as a whole.

Incorporation the application of the Bill of Rights to the states was a Warren Court success story. But it was not based on original understandings. At the time of most of the incorporation decisions, the received historical view was that the 14th Amendment was not understood to incorporate the Bill of Rights. Justices Felix Frankfurter and John Marshall Harlan, who were very historically minded, opposed incorporation on that ground.

We now know, thanks to the impressive work of some important scholars, that this received understanding was too simple and that the history is actually quite complicated no surprise there. But by the end of the Warren Court, incorporation had become the norm, except for a couple of well-established exceptions (basically, the Seventh Amendment and the Fifth Amendments grand jury clause). It became the norm for a variety of reasons having nothing to do with the history or, for that matter, the text. In part it was, as we say in the book, one of the Warren Courts weapons against state criminal-justice systems that were engines of white supremacy or, at least, badly dysfunctional. More generally, as the Warren Court made the protections of the Bill of Rights more extensive and elaborate, it made a lot of sense not to operate with separate sets of rules for federal and state governments, particularly in the area of law enforcement.

Heller was wrong, but once it was decided, it became an uphill struggle to keep the Second Amendment from being incorporated, precisely because the Warren Court made incorporation the norm.

Question: As you note, in a 1980 Santa Clara Law Review article, Justice Arthur Goldberg declared: Without actually overruling Mapp v. Ohio, which applied the exclusionary rule to the states], the present Court has riddled it so full of loopholes as to render its effect almost meaningless.

Might the same be said of one of the Warren Courts most famous decisions, Miranda v. Arizona (1966)? Have Mapp and Miranda become almost meaningless?

Stone & Strauss: No. Although in the years since Mapp the increasingly conservative justices of the Burger, Rehnquist and Roberts Courts have limited the impact of Mapp in a string of decisions, illustrated by United States v. Calandra (1974), Stone v. Powell (1976) and Herring v. United States (2009), many police departments across the nation have reformed themselves in response to Mapp. Despite the limitations the Burger, Rehnquist and Roberts Courts have imposed on the scope of the exclusionary rule, the central holding of Mapp remains intact. As Yale Kamisar has observed, it is comforting to know that, although battered and bruised, Mapp remains in place waiting for a future Court to reclaim the torch.

As with Mapp, the ever-more conservative justices since the end of the Warren Court have limited the impact of Miranda. In Harris v. New York (1971) for example, the Burger Court held, over the dissents of Black, Brennan and Justices William Douglas and Thurgood Marshall, all of whom had joined Miranda, that statements made by a suspect in the course of custodial interrogation could be used to impeach the defendants credibility if he testified in his own behalf at trial. Over time, though, Miranda came increasingly to be accepted as the culture of the police station as law enforcement practices became more civilized and more positive.

In 1993, the Rehnquist Court declared that, in the 27 years since Miranda was decided, law enforcement has grown in constitutional as well as technological sophistication, and there is little reason to believe that the police today are unable, or even generally unwilling, to satisfy Mirandas requirements. In 2000, in Dickerson v. United States, Chief Justice William Rehnquist expressly reaffirmed Miranda, noting that Miranda has become embedded in routine police practice and there is no principled justification for overruling Miranda.

Nonetheless, the Roberts Court has continued to undermine Miranda. In Berghuis v. Thompkins (2010), for example, the court, with Chief Justice Roberts joining Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito in the majority, held that an individual arrested for murder who remained silent for three hours after being warned of his right to remain silent, despite continued and ongoing police interrogation, had waived his rights when he finally gave in and responded to a question.

Although Miranda has become generally accepted, how it will fare in the hands of justices who do not share the Warren Courts vision of the Constitution remains to be seen.

Question: It seems that the court since the Warren era has preferred creating numerous exceptions to landmark liberal rulings to formally overruling them. Consider another quotation, for example, from Rehnquist in Dickerson: While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decisions core ruling.

Do you think the exceptions to Roe v. Wade (1973) carved out since the ruling have undermined Roes doctrinal underpinnings, leaving it vulnerable to being overruled? Or do you think the court will continue to riddle it with exceptions?

Stone & Strauss: Roe was a profoundly important decision. Although it was not a Warren Court decision, there is little doubt that the Warren Court would have reached the same result in 1973. One thing that is interesting and revealing about Roe is that five of the seven justices in the majority were appointed by Republican presidents Dwight Eisenhower and Richard Nixon (Brennan, Chief Justice Warren Burger, and Justices Potter Stewart, Harry Blackmun and Lewis Powell). The two dissenters were appointed by Republican President Nixon (Rehnquist) and Democratic President John Kennedy (Justice Byron White). In short, Roe was a remarkably nonpartisan decision.

Things have changed dramatically since 1973, though, as presidents from both parties have increasingly appointed justices with what they hoped were preconceived views on abortion. Nonetheless, although Republican presidents have appointed 14 of the 18 justices in the last 50 years (even though they have won the popular vote in only six of the last 13 presidential elections), Roe has survived.

It is true, of course, that the court over that period has handed down several important decisions limiting Roe, including Maher v. Roe (1977), Harris v. McRae (1980), Planned Parenthood v. Casey (1992) and Gonzales v. Carhart (2007), but the plain and simple fact is that, despite those decisions, at least the core ofRoehas survived notwithstanding the many attacks on it. That is due largely to the fact that four Republican-appointed justices in this era Kennedy, John Paul Stevens, Sandra Day OConnor and David Souter were deeply committed to the principle of precedent and to the rights of women. Unfortunately, in our view, the five Republican-appointed justices now on the court (Roberts, Thomas and Alito, alongside Neil Gorsuch and Brett Kavanaugh) are likely to cast Roe aside. They might do this quickly, or in a series of decisions over the next three or four years, but as long as they remain in the majority, they will almost surely do this.

Question: In all 12 cases you discuss, the various rights claims were vindicated. But what of important Warren Court cases in which a claim was denied, as in Brennans opinion in Roth v. United States (1957), in which the court held that obscenity is not protected by the First Amendment?

How important was Roth to the Warren Courts First Amendment jurisprudence?

Stone & Strauss: Its important to understand that the Warren Courts jurisprudence evolved over time as the makeup of the court changed. Indeed, although Chief Justice Earl Warren joined the court in 1954, the only decision of the 12 we discuss in our book that was handed down before 1961 was Brown. Brown was, of course, a profoundly important and transformative decision, but with that one exception the Warren Court as we know it didnt really take on its historic identity until the early 1960s. At the time Roth was decided in 1957, the court still had Frankfurter and Justices Harold Burton, Tom Clark and Charles Whittaker on it. It was not surprising that those justices would not welcome a radical decision giving broad constitutional protection to obscenity. Moreover, Warren himself was personally quite put off by what at the time was understood to be obscene expression.

On the other hand, although Roth might be seen today as a somewhat timid decision, Brennans opinion for the court gave much greater First Amendment protection to sexual expression than existed almost anywhere in the nation. The dominant approach to defining obscenity in the United States at that time was still rooted in the 1868 English case of Regina v. Hicklin, which held that any material that tended to deprave and corrupt those whose minds are open to such immoral influences must be deemed obscene and therefore could be banned. Brennan, building on lower-court and state-court decisions that had increasingly interpreted anti-obscenity statutes more narrowly although not based on the First Amendment held that sexual expression could not be prohibited consistent with the First Amendment unless the dominant theme of the material taken as a whole appeals to the prurient interest of the average person applying contemporary community standards. Although Roth did not go nearly as far as Douglas and Black wanted (they maintained that so-called obscene expression should be fully protected by the First Amendment), it was in fact a cautious, but meaningful step forward in the protection of sexual expression.

Moreover, nine years later when the Warren Court revisited the question in Memoirs v. Massachusetts, Brennan, joined by Warren and Justice Abe Fortas, with concurrences by Black, Douglas and Stewart, held that sexual material could not be deemed obscene unless, in addition to the requirements set out in Roth, it also had no redeeming social value. By the time the Burger Court came into being, this test had proved so expansive in its protection of sexual expression that the justices of the Burger Court felt it necessary in 1973 in Miller v. California and Paris Adult Theater v. Slaton to cut back substantially on the Warren Courts approach to sexual expression and the First Amendment.

Question: Harlan dissented from some of the Warren Courts seminal rulings, including Mapp and Miranda. How, if at all, do his dissents inform our understanding of constitutional law?

Stone & Strauss: Harlan today has an excellent reputation, deservedly so, but it is more despite than because of his dissents from some of the Warren Court decisions. His opinions as a whole reflect a respect for tradition and precedent, a recognition of the importance of being principled and a genuine effort to get things right without political or ideological precommitments.

Harlan misjudged the criminal-procedure revolution, in the cases you mention for example, and he was mistaken about some other Warren Court initiatives, notably reapportionment. But even then, his opinions presented the right kinds of challenges to the Warren Court. And although he was often a conservative dissenter on the Warren Court, he was the intellectual godfather of Roe he was not on the court at the time of Roe, but his opinion in Griswold v. Connecticut (1967) paved the way for Roe, and the approach he took in Griswold became the foundation of so-called unenumerated rights more generally.

To give just a couple of other examples: In Cohen v California (1971), Harlan wrote an opinion upholding the First Amendment right of an individual to wear a jacket saying Fuck the Draft in a courthouse, even though he himself undoubtedly found that kind of display worse than distasteful. But he understood the nature and importance of dissent in the Vietnam War era. And in Bivens v. Six Unknown Named Agents (1971), Harlan wrote an exceptionally thoughtful opinion explaining why people should be able to sue federal officials who violate their constitutional rights. More recent courts have been relentlessly hostile to Bivens but have never met Harlans arguments on the merits. The conservative counter-revolution on the Supreme Court has been, in many ways, as much a repudiation of Harlan as of the Warren Court.

Question: As you note in your chapter on Loving, in the aftermath of Brown the Warren Court was reluctant to declare prohibitions on interracial marriage unconstitutional.

You write: The Justices, in what amounted to a kind of judicial civil disobedience, had decided that they had to violate Congresss jurisdictional statute in order to protect Brown.

What do you make of this judicial civil disobedience? And given the cultural state of affairs in America in the early 1970s, was the Supreme Court warranted in refusing to hear Baker v. Nelson (1972), a case challenging a Minnesota anti-gay-marriage law?

Stone & Strauss: Whatever might be said about Baker, it was not an act of judicial civil disobedience; the court complied with the jurisdictional statutes (Baker was a decision on the merits), and there was no established law favoring same-sex marriage at the time. The question of when the court should hold back on establishing constitutional rights that it would otherwise recognize because it is concerned about a public backlash that is a very difficult question. Disobeying a legal obligation because of a concern about backlash is the most extreme example. Maybe it is a partial answer to say that, in the real world, the justices are, in fact, going to take the risks of a backlash into account (as they perceive those risks), no matter what those of us on the outside might say.

This issue whether the court should have held back because of a concern about backlash might have arisen in a dramatic way in the run-up to Obergefell v. Hodges, the 2015 decision that established a right to same-sex marriage, had public opinion not moved so quickly in favor of same-sex marriage. But as it was, the court did not have to face that issue squarely.

Question: What might the Warren Court have done had it heard Buckley v. Valeo (1976), in which the court under Chief Justice Warren Burger struck down spending limits in the Federal Election Campaign Act of 1971?

Stone & Strauss: This is a fascinating question. To keep things simple, well focus only on the contribution and expenditure limits, although that leaves out some interesting parts of the law. At the time Buckley was decided, there were only four justices from the Warren Court still on the Supreme Court Brennan, Stewart, White and Marshall. Brennan and Stewart voted to uphold the contribution limits but to strike down the expenditure limits. White voted to uphold both the contribution and expenditure limits. Marshall voted to uphold both the contribution and expenditure limits (but only as applied to candidates themselves). In short, the four holdovers from the Warren Court all voted to uphold the contribution limits, but were all over the lot on the expenditure limits. Given this distribution of votes, its difficult to predict what Warren, Black, Douglas, Harlan and Fortas would each have done had they still been on the court in 1976.

Part of the reason this is so difficult is that the Warren Court deeply valued both the freedom of speech and the proper functioning of the democratic process. A case like Buckley arguably put these central values in conflict. On the one hand, the members of the Warren Court generally believed that individuals should have a right to speak their minds, but on the other hand they also believed that government could constitutionally intervene in the democratic process to ensure that it functions fairly.

Although the remaining justices of the Warren Court clearly disagreed about how best to strike the balance in 1976, we have little doubt that by the time Citizens United v. Federal Election Commission made it to the court in 2010 a substantial majority of the Warren Court justices would have voted to uphold the McCain-Feingold Bipartisan Campaign Reform Act. This is so because by this time the destructive impact of money in the political process had grown far more severe than had been the case in 1976. Moreover, although the limitation on free speech was not insignificant, it was viewpoint-neutral and thus made the danger to free-speech values much less serious than if the law had expressly treated supporters of Democratic candidates differently from supporters of Republican candidates. And given the increasingly dangerous impact money was having by 2010 on a well-functioning democracy, it seems clear that most of the Warren Court justices, like Stevens and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor in Citizens United (and OConnor, who had voted to uphold the act a few years earlier in McConnell v. Federal Election Commission), would have voted to uphold the central provision of the McCain-Feingold Act.

Question: In cases such as Jones v. Alfred H. Mayer Co. (1968) and Katzenbach v. Morgan (1966), the Warren Court relied on the 13th and 14th Amendments to uphold Congress power to enact anti-discrimination laws that apply to the federal government and the states. Do you think we will see more rulings like the one in Shelby County v. Holder (2013), which struck down such a law, Section 4(b) of the Voting Rights Act of 1965?

Stone & Strauss: The Warren Court was, of course, criticized for activism for declaring laws unconstitutional. But more recent conservative courts have generally accepted the activist decisions: Brown, Loving, Reynolds v Sims (1964), Miranda, Gideon, Griswold, the school prayer cases, the First Amendment cases.

The Warren Court decisions that have fared the worst at the hands of conservative courts have been the decisions that upheld acts of Congress. Katzenbach v. Morgan, which you mention, was effectively overruled by City of Boerne v. Flores (1997); Shelby County is hard to square with South Carolina v. Katzenbach (1966), to say the least; and the Warren Courts generous view of Congress power under the commerce clause (which was the basis for upholding key provisions of the Civil Rights Act of 1964) was systematically limited by the Rehnquist and Roberts Courts.

In other words, the conservative courts biggest objection to the Warren Court seems to be that the Warren Court was too deferential to Congress too willing to step aside and let the peoples elected representatives in Congress run things. That was part of the Warren Courts abiding commitment to democracy. One of the reasons we wrote the book was that we thought the legacy of the Warren Court was misunderstood by conservatives, by moderates and even by liberals and this is a prime example.

Question: You suggest that, consistent with its rulings in Brown and Loving, the Warren Court would have sustained affirmative-action programs in order to help rectify the grave and lasting wrongs of slavery. You write: Racial classifications do not present a critical constitutional problem unless they reinforce something comparable to white supremacy. How might the Warren Court have applied that formula in the context of affirmative action?

Stone & Strauss: Critics of affirmative action like to say that Brown and Loving stand for a principle of colorblindness that racial classifications are across the board unacceptable. Thats a mischaracterization. The problem with the racial classifications of the Jim Crow era is that they were used to subordinate African Americans, and the logic of the Warren Court decisions is that racial classifications are unacceptable when they are used to oppress minority groups.

Affirmative-action measures classifications that benefit minorities may be good or may be bad, but that is a decision that should be entrusted to the political process; there is no reason for the courts to step in. Current law has moved far away from that way of thinking, but that is the right way to understand the principle that underlies the Warren Court decisions about race.

Question: In a nutshell, what would you say is the central difference between the constitutional jurisprudence of Warren and that of Roberts?

Stone & Strauss: As the title of our book suggests, the enduring constitutional vision of the Warren Court was its concern with democracy and equality. Warren certainly shared that vision. What this meant, simply, is that in exercising the fundamental responsibility of judicial review in cases like Brown, Mapp, Engel v. Vitale (1962), Gideon v. Wainwright (1963), New York Times Co. v. Sullivan (1964), Reynolds, Griswold, Miranda, Loving, Katz v. United States (1967), Shapiro v. Thompson (1968) and Brandenburg v. Ohio (1969) which are the central focus of our book Warren and the Warren Court focused on ensuring that the American Constitution protected the rights of minorities and the essential requisites of a well-functioning democracy. That was correctly, in our view the core focus of Warrens interpretation of our Constitution. Of course, as we say in the book, there were some cases in which Warren, and his court, did not follow through on that vision. But there is an overall principled coherence to the work of the Warren Court.

It is much more difficult to define the constitutional jurisprudence of Roberts and his court. Quite frankly, when one reviews such cases as Heller, Citizens United, Shelby County, Burwell v. Hobby Lobby (2014), Trump v. Hawaii (2017) and Rucho v. Common Cause (2019), and the dissenting opinions in Obergefell, Whole Womans Health v. Hellerstedt (2016) and Fisher v. University of Texas (2016), it is difficult to discern a principled approach to constitutional interpretation.

Originalism is not a plausible theory of constitutional interpretation, as we have said, and does not even purport to be the basis of most of these decisions. The text does not answer the questions posed by these cases. The Roberts Court is certainly not an avatar of judicial restraint it is far more willing to invalidate important acts of Congress than the Warren Court ever was or of following precedent. The affirmative-action and gun-control cases belie any principled commitment to federalism. Although Warren and Roberts were both Republicans, appointed by Republican presidents, the difference in their courts approach to constitutional interpretation is dramatic.

Question: In your view, recent developments in the courts equality and liberty jurisprudence paint a bleak picture. Where does that leave those who value the constitutional vision of the Warren Court?

Stone & Strauss: There are historians who say that the Warren Court was a one-off: a product of a particular constellation of political and legal forces that is unlikely to be replicated. That may be true, of course. But we wrote the book not as an exercise in nostalgic hagiography the Warren Court made its share of mistakes, as we say in the book but in order to hold out an ideal of the role the Supreme Court could play in a democratic society.

In particular, we wanted to refute the notion that the Warren Court was just a liberal counterpart to the conservative courts that have succeeded it. The current administration, and the current Senate leadership, have tried to make the courts an instrument of partisan warfare. Things dont have to be that way, and they werent that way for the Warren Court. Warren was one of the most successful Republican politicians of his generation. Brennan was appointed by a Republican president. White, a Kennedy appointee, dissented from many of the Warren Courts criminal-procedure decisions, as well as from Roe. Harlan, an establishment Republican appointed by a Republican, believed the Constitution protected reproductive rights; Black, a New Deal Democratic senator, vehemently disagreed. But every one of those justices shared the core commitments of the Warren Court its war on racial apartheid and its defense of democracy.

What the Warren Court shows, we think, is that the Supreme Court can transcend partisanship and help fulfill the highest ideals of American democracy. That should be our aspiration for the future of the courts, however discouraging things might seem right now.

Posted in Featured, Book Reviews

Recommended Citation: Ron Collins, Ask the author: The enduring and controversial legacy of the Warren Court, SCOTUSblog (Dec. 17, 2019, 3:15 PM), https://www.scotusblog.com/2019/12/ask-the-author-the-enduring-and-controversial-legacy-of-the-warren-court/

Originally posted here:
Ask the author: The enduring and controversial legacy of the Warren Court - SCOTUSblog

Key point: Questions have risen once again about what happened to one of America's most famous union bosses.

On July 30, 1975, Jimmy Hoffa, the former president of the Teamsters Union, disappeared.

Hed gone to a restaurant in suburban Detroit apparently expecting to meet a couple of mafia figures whom he had known for decades. Hed hoped to win their support for his bid to return to the unions presidency. A few customers remembered seeing him in the restaurant parking lot before 3 p.m.

Sometime after that he vanished without a trace.

The FBI has long assumed that Hoffa was the victim of a mob hit. But despite a decades-long investigation, no one has ever been charged with his murder. His body has never been found.

Yet even though his physical remains are missing, Hoffa lives on in our collective cultural consciousness.

Martin Scorseses The Irishman is only the latest film to offer a fictionalized version of Hoffas story. Before that there was Sylvester Stallones F.I.S.T. (1978), Danny DeVitos Hoffa (1992) and the made-for-TV movie Blood Feud (1983).

Hes been the subject of countless true crime books, most famously Charles Brandts I Heard You Paint Houses. He inspired an episode of The Simpsons. And he crops up in tabloids such as the Weekly World News, which claimed to have found him living in Argentina, hiding from the vengeful Kennedys.

Ever since I started researching and writing on the history of the Teamsters, people have asked me where I think Hoffas body is located. His story, Ive learned, is the one aspect of labor history with which nearly every American is familiar.

Hoffas disappearance transformed him from a controversial union leader into a mythic figure. Over time, Ive come to realize that Hoffas resonance in our culture has important political implications for the labor movement today.

The rise and fall of the Teamsters Teamster

Hoffa became a household name in the late 1950s, when Robert F. Kennedy, then serving as chief counsel for the Senate Rackets Committee, publicly grilled him about his mob ties.

While other witnesses avoided answering questions by invoking their Fifth Amendment rights, Hoffa, the newly elected leader of the nations largest and most powerful union, adopted a defiant stance. He never denied having connections with organized crime figures; instead, he claimed these were the kinds of people he sometimes had to work with as he strengthened and grew his union in the face of employer opposition. He angrily dismissed any allegations of corruption and touted the gains his union had won for its membership.

Story continues

The verbal sparring between Kennedy and Hoffa became the most memorable part of the hearings.

To the benefit of big business, it turned Hoffa into a menacing symbol of labor racketeering.

But to his union members, it only enhanced his standing. They were already thrilled by the contracts Hoffa had negotiated that included better pay and working conditions. Now his members hailed him as their embattled champion and wore buttons proclaiming, Hoffa, the Teamsters Teamster.

His membership stayed loyal even as Hoffa became the target of a series of prosecution efforts.

After becoming attorney general in 1961, Kennedy created a unit within the Department of Justice whose attorneys referred to themselves as the Get Hoffa Squad. Their directive was to target Hoffa and his closest associates. The squads efforts culminated in convictions against Hoffa in 1964 for jury tampering and defrauding the unions pension fund. Despite that setback, Hoffas hold on the Teamsters presidency remained firm even after he entered federal prison in 1967.

When he finally did leave office, Hoffa did so voluntarily. He resigned in 1971 as part of a deal to win executive clemency from the Nixon administration. There was one condition written into the presidents grant of clemency: He couldnt run for a position in the union until 1980.

Once free, Hoffa claimed that his ban from union office was illegitimate and began planning to run for the Teamsters presidency. However, he faced resistance not from the government but from organized crime figures, who had found it easier to work with Hoffas successor, Frank Fitzsimmons.

Hoffas meeting at the restaurant on July 30, 1975, was part of his efforts to allay that opposition.

Clearly, things didnt go as planned.

Some theorize that the mafia had him killed in order to ensure that he would not run against Fitzsimmons in the Teamsters upcoming 1976 union election.

But after no arrests and multiple fruitless excavations to try to locate his body, Hoffas case remains, to this day, unresolved.

From man to myth

In Andrew Lawlers history of the Lost Colony of Roanoke, he writes, To die is tragic, but to go missing is to become a legend, a mystery.

Stories are supposed to have a beginning, a middle and an end. But when people go missing and are never found, Lawler explains, theyll endure as subjects of endless fascination. It allows their legacies to be re-written, over and over.

These new interpretations, Lawler observes, can reveal something fresh about who we were, who we are, and who we want to be.

The myth of Hoffa lives on, even though almost five decades have passed since that afternoon in July 1975.

What shapes has it taken?

To some, he stands for an idealized image of the working class a man whod known hard, manual labor and worked tirelessly to achieve his success. But even after rising to his leadership post, Hoffa lived simply and eschewed pretense.

As a Washington Post article from 1992 put it, He wore white socks, and liked his beef cooked medium well He snored at the opera.

Meanwhile, his feud with the Kennedys pitted a populist tough guy off the loading docks against the professional class, the governing class, the educated experts. The Washington Post piece ties Hoffas story to that of another working-class icon. Watching Hoffa go up against Bobby Kennedy was like watching John Henry go up against a steam hammer it was only a matter of time before he lost.

But Hoffas myth can also serve as a morality tale. The New Republic, for instance, described how Danny DeVitos 1992 film reworks Hoffas life into the story of an embattled champion of the working class who makes a Faustian pact with the underworld.

In the movie, Hoffas Teamsters are caught in hopeless picket line battles with mob goons who the anti-union employers have hired. In order to get those goons to switch sides, Hoffa makes a bargain with mafia leaders. But the mafia ultimately has Hoffa killed when he tries to defy their control, becoming the victim of his own unbridled ambition.

Finally, the underworlds mysterious role in Hoffas death keeps his story compelling for Americans who have a fascination with conspiracy theories. It supports the idea of an invisible cabal that secretly runs everything, and which can make even a famous labor leader disappear without a trace.

Hoffas story is often intertwined with theories about the Kennedy assassination that attribute the presidents murder to an organized crime conspiracy. Both Hoffa and Kennedys murders, in these accounts, highlight the underworlds apparently unlimited power to protect its interests, with tentacles that extend into the government and law enforcement.

Did Hoffa taint the labor movement?

Over two decades after he went missing, a 1997 article in The Los Angeles Times noted that No union in America conjures up more negative images than the Teamsters.

This matters, because for most Americans who lack first-hand knowledge about organized labor, Hoffa is the only labor leaders name they recognize. And as communications scholar William Puette has noted, the Teamsters notoriety is such that for many people in this country the Teamsters Union is the labor movement.

A union widely perceived as mobbed up with a labor leader notorious for his Mafia ties has come, in the minds of some Americans, to represent the entire labor movement. That perception, in turn, bolsters arguments against legislative reforms that would facilitate union organizing efforts.

The other themes in Hoffas myth have similar negative implications for labor. He represents a nostalgic, white, male identity that once existed in a seemingly lost world of manual work. That myth also implies that the unions that emerged in those olden times are no longer necessary.

This depiction doesnt match reality. Todays working class is diverse and employed in a broad spectrum of hard manual labor. Whether youre working as a home health aide or in the gig economy, the need for union protection remains quite real.

But for those working-class Americans who see their society controlled by a hidden cabal of powerful, corrupt forces like the puppet masters who supposedly had JFK and Hoffa killed labor activism can appear quixotic.

For these reasons, the ghost of Jimmy Hoffa continues to haunt the labor movement today.

[ Deep knowledge, daily. Sign up for The Conversations newsletter. ]

David Scott Witwer, Professor of American Studies, Pennsylvania State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

This article first appeared last month.

Image: Netflix's The Irishman.

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Does Netflix's The Irishman Reveal What Really Happened To Jimmy Hoffa? - Yahoo News

A US Army veteran became the first in Florida to be charged with defying the states newly adopted red flag law after he refused to turn in his firearms, including an AR-15.

Jerron Smith, 33, who is suspected of shooting at his friends car, was found guilty by a jury in Broward County in southeastern Florida last Friday, December 6, in less than an hour.

Judge Ernest Kollra ordered a pre-sentencing investigation for Smith who faces up to five years in prison.

Floridas new red flag law came into effect in the wake of the shooting tragedy in a high school in Parkland in February 2018 in which 17 people lost their lives.

It was just after a month after the horrific incident that Smiths weapons were confiscated by the deputies after a shooting took place outside his residence in Deerfield Beach.

Smith was accused of repeatedly firing at his best friends car during an argument over a cellphone on March 28 night. The police came to his house to seize off all the weapons and other items under a Risk Protection Order. They had found several magazines stocked in his bedroom.

According to a criminal complaint filed against Smith, it was said that he had shot at least half a dozen times at the vehicle of Jackson Levon while he was inside it.

Under Floridas red flag law, authorities with the backing of the judge can seek to remove weapons from people who are perceived as threats to themselves and others. Apart from Florida, 14 other states have such laws.

Smith told the jury that he was unaware of the legal requirements when the deputies came to his house. He repeatedly invoked his Fifth Amendment right against self-incrimination, believing that the police could not search his home without showing a warrant or his consent.

According to a report in the local Sun-Sentinel, Smith's lawyer could not present a convincing argument that his client did not fully understand the new law. The date for Smiths sentencing is yet to be decided.

The Sun-Sentinel also said in a report in September that guns have been taken from 2,0000 residents of the state in a year-and-half since the new law was passed.

But figures showed that South Florida, which includes places like Broward County where mass shootings are not rare, has not been as agile in implementing the new law like most other big counties.

Read more from the original source:
Army veteran who refused to give up firearms citing Fifth Amendment found guilty of defying Florida's new 'red flag' law - MEAWW

Updated: May 25, 2018:

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Public Service Announcment: If You Own a Closely Held Business Entity, You Have Waived Fifth Amendment Rights - JD Supra

The highest court in Pennsylvania has ruled that the states law enforcement cannot force suspects to turn over their passwords that would unlock their devices.

The states Supreme Court said compelling a password from a suspect is a violation of the Fifth Amendment, a constitutional protection that protects suspects from self-incrimination.

Its not an surprising ruling, given other state and federal courts have almost always come to the same conclusion. The Fifth Amendment grants anyone in the U.S. the right to remain silent, which includes the right to not turn over information that could incriminate them in a crime. These days, those protections extend to the passcodes that only a device owner knows.

But the ruling is not expected to affect the ability by police to force suspects to use their biometrics like their face or fingerprints to unlock their phone or computer.

Because your passcode is stored in your head and your biometrics are not, prosecutors have long argued that police can compel a suspect into unlocking a device with their biometrics, which they say are not constitutionally protected. The court also did not address biometrics. In a footnote of the ruling, the court said it need not address the issue, blaming the U.S. Supreme Court for creating the dichotomy between physical and mental communication.

Peter Goldberger, president of the ACLU of Pennsylvania, who presented the arguments before the court, said it was fundamental that suspects have the right to to avoid self-incrimination.

Despite the spate of rulings in recent years, law enforcement have still tried to find their way around compelling passwords from suspects. The now-infamous Apple-FBI case saw the federal agency try to force the tech giant to rewrite its iPhone software in an effort to beat the password on the handset of the terrorist Syed Rizwan Farook, who with his wife killed 14 people in his San Bernardino workplace in 2015. Apple said the FBIs use of the 200-year-old All Writs Act would be unduly burdensome by putting potentially every other iPhone at risk if the rewritten software leaked or was stolen.

The FBI eventually dropped the case without Apples help after the agency paid hackers to break into the phone.

Brett Max Kaufman, a senior staff attorney at the ACLUs Center for Democracy, said the Pennsylvania case ruling sends a message to other courts to follow in its footsteps.

The court rightly rejects the governments effort to create a giant, digital-age loophole undermining our time-tested Fifth Amendment right against self-incrimination, he said. The government has never been permitted to force a person to assist in their own prosecution, and the courts should not start permitting it to do so now simply because encrypted passwords have replaced the combination lock.

We applaud the courts decision and look forward to more courts to follow in the many pending cases to be decided next, he added.

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Another US court says police cannot force suspects to turn over their passwords - TechCrunch