If you subscribe to a wide range of social media posts, you’ve had calls for Congress to impeach Clarence Thomas for his wife’s involvement in the January 6 events, and Brett Kavanaugh and Amy Coney Bryant for lying to Congress under oath about their commitment to Roe v. Wade as precedent set. These online calls remind us of 1960s billboards (the equivalent of online advertising in those days) to impeach Supreme Court Chief Justice Earl Warren. The calls to impeach Warren in the 1960s and the three justices today are the bookends of the history of the evolution of the Supreme Court over the past six decades.
In 1953, President Eisenhower appointed Warren, the former Republican Governor of California, to serve as Chief Justice of the Supreme Court. Like Eisenhower, Warren was widely considered a moderate conservative who believed in social progress through the rule of law. If change were to happen, Warren wrote, it would have to happen “at full deliberate speed.” Despite its reputation for moderation, under Warren’s 15-year leadership, the Supreme Court overturned decades, if not centuries, of legal precedent, remaking America’s legal arrangements regarding race, criminal procedure, religious freedom and life private sex.
The Warren Court’s best-known decision is Brown v. Board of Education, which abolished seven decades of constitutionally sanctioned racial segregation in Southern public schools, transportation and housing. Brown v Board bolstered the grassroots civil rights movement that peaked in the 1960s. It also turned many white southerners and conservatives everywhere against the federal government and began their flight from the Democratic Party.
The Warren court also expanded the idea of individual rights in the criminal justice system, limiting the arbitrary power of police and prosecutors and expanding procedural protections for defendants. Gideon v. Wainwright granted each defendant the right to be represented by competent counsel. Map c. Ohio declared evidence illegally collected by police inadmissible at trial. And the well-known decision Miranda v. Arizona has required police to alert suspects to their right to remain silent and have an attorney present when questioned – effectively outlawing “third degree”. Since those rulings, conservative Republicans have cashed in on politics by accusing liberals of being “soft on crime,” conveniently forgetting that those rights were enunciated by a Republican-led Supreme Court.
No less sweeping were the Warren Court rulings on religious freedom upholding the First Amendment assertion that “Congress shall make no law respecting the establishment of a religion.” In Engel v Vitale (1962), judges banned compulsory sectarian prayer to the Judeo-Christian version of God in public schools, finding it inherently coercive for students of polytheistic and atheistic religious denominations. A year later, in Abbington v. Schempp, the Court blocked mandatory Bible reading in public schools. Roberts Court’s Kennedy ruling authorizing a public high school football coach to lead his players in “voluntary” sectarian prayer and his ruling that the state of Maine must pay tuition for students enrolled in religious schools thus overturned six decades of Warren Court precedent, not to mention more than two centuries of generally accepted constitutional values.
Perhaps the Warren Court’s most dramatic preference for individual conscience over government-imposed religious conformity was Griswold v. Connecticut (1965). The ruling prohibited the heavily Catholic state of Connecticut from banning the sale of birth control pills and condoms, establishing the principle that the government should “not enter people’s bedrooms.” It was a short ride from Griswold declaring personal and especially sexual privacy a constitutional right to Roe v Wade, which established a woman’s right to control her own pregnancy, and then to the reversal of state laws criminalizing homosexual acts. The legalization of same-sex marriage and the adoption of children are Griswold’s most recent offspring. In voting to overturn Roe, Justice Thomas suggested that, like abortion rights, precedents establishing the right to acquire birth control and marry whoever you love can be overturned because they are not inconsistent with conservative Christian values.
The Warren Court has gone down in history as one of the most important in American legal history. Despite resistance to some of his decisions by a disgruntled minority, decisions such as Brown and Miranda were popular then and remain so today. In contrast, a wide range of public opinion polls indicate that a majority of Americans disagree with the decision to overturn Roe or the possibility of reversing gay rights. Billboards calling for Earl Warren’s impeachment were sponsored by the far-right John Birch Society, a strongly anti-Communist libertarian organization founded by Robert Welch and Fred Koch. The Birchers demanded that the United States leave the United Nations; saw the fluoridation of drinking water and the civil rights movement as part of a communist plot; and flirts with anti-Semitism. Only once in the history of the country has a Supreme Court justice been removed. In 1805, the Jeffersonian-Republican-dominated House charged Federalist Judge Samuel Chase with wrongdoing, but the Senate failed to convict him. If history tells us anything, the current online campaign to remove anti-Roe judges is as likely to fail as politically motivated efforts to remove Samuel Chase or Earl Warren. But there is another course.
Presidents and vice-presidents must be re-elected every four years and are limited to two terms. Members of Congress must be re-elected every two years and senators every six years. In contrast, the Constitution states that judges “shall perform their duties during good conduct”, allowing them to remain on the bench as long as they wish, unless removed from office. A bipartisan proposal is floating around Washington to limit the term of a Supreme Court justice to 18 years, meaning that at least one justice would be replaced by the court every two years. This would ensure that each sitting President and Senate would appoint and confirm a judge, presumably altering (for better or worse in the eyes of every viewer) the composition and outlook of the Court. I would like to believe that Earl Warren would agree with the proposal. This would allow the Court to better keep pace with the evolution of American culture and values, but would ensure that the laws regulating this change evolve “at a deliberate speed”.
Bruce Laurie is professor emeritus of history at UMass Amherst and lives in Pelham. Michael Feldberg is executive director of the George Washington Institute for Religious Freedom and lives in Pittsfield.