The Warren Court and American Politics

By Lucas A. Powe Jr. | Go to book overview

Chapter 12
Freedom of Expression

New York Times v. Sullivan in the spring of 1964 signaled Brennan’s emergence as the author of the liberal majority’s legal doctrine. Warren trusted Brennan and always turned to him in a jam as the peer and friend with whom he felt most comfortable. Furthermore, their level of agreement was astounding, between 92 and 97 percent from the 1962 Term until Warren’s retirement. This was an agreement rate that the two other well-known Warren Court pairs, Black-Douglas and FrankfurterHarlan, never achieved during a single term.

When the liberals came to dominate, Brennan’s time arrived. As seen in earlier chapters, Brennan embraced a technique of conceding in principle the government’s power to pursue its objective, while simultaneously making it extraordinarily difficult for the government to do so. The concession deflected criticism of absolutism, while the decision accomplished the task. Strict scrutiny, compelling interests, the chilling effect, and the need for breathing space constituted the vocabulary of unconstitutionality in Brennan’s jurisprudence.

Brennan was the only member of the liberal majority capable of performing the role of principal doctrinalist; indeed, he may have been the only one to care, and none of the majority justices, Brennan included, seemed to care about theory during this era. Warren was a wonderful practical politician and was on a par with the legendary John Marshall in working his magic in small groups, but he was ham-handed with opinions and found theory foreign. Black was on the downslide in his career, and his reputation would match reality if he had left the Court with Frankfurter, the indispensable foil who brought out the best in him. Black’s well-developed constitutional theories, based on his good versus evil law-office history, were too idiosyncratic to convince anyone else. Furthermore, given the centrality of race, his view of civil rights demonstrations necessarily separated him from the liberals in a key area.

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The Warren Court and American Politics
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Illustrations ix
  • Preface xi
  • Chapter 1 - The Supreme Court, 1935–1953 1
  • I Beginnings the 1953–1956 Jerms 19
  • Chapter 2 - Brown 27
  • Chapter 3 - Implementation 50
  • Chapter 4 - Domestic Security 75
  • Chapter 5 - Glimpses of the Future 104
  • II Stalemate the 1957–1961 Jerms 125
  • Chapter 6 - Domestic Security after Red Monday 135
  • Chapter 7 - Little Rock and Civil Rights 157
  • Chapter 8 - The Transition 179
  • III History's Warren Court the 1962–1968 Terms 207
  • Chapter 9 - To the Civil Rights Act 217
  • Chapter 10 - Revamping the Democratic Process 239
  • Chapter 11 - After the Civil Rights Act 272
  • Chapter 12 - Freedom of Expression 303
  • Chapter 13 - The End of Obscenity? 336
  • Chapter 14 - Church and State in a Pluralist Society 358
  • Chapter 15 - Policing the Police 379
  • Chapter 16 - Policing the Criminal Justice System 412
  • Chapter 17 - Wealth and Poverty 445
  • IV the Era Ends 463
  • Chapter 18 - The Last Year 467
  • Chapter 19 - What Was the Warren Court? 485
  • Chronology 503
  • Notes 511
  • Bibliography 533
  • Index of Cases 539
  • General Index 549
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