Instructor: Winston Bowman
Office Hours: TR 10:30am-12pm and by Appointment (OS 123)
The Warren Court and Social Justice
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is, but let me explain it once more,
Law is The Law.
-- W.H. Auden
Course Syllabus
Introduction and Course Goals:
As this excerpt from Auden’s “Law Like Love” suggests, the law is simultaneously concrete and ephemeral, clear and abstruse. It means different things to different people. Yet nothing is more important to modern society. Law informs every relationship, every interaction, and every activity in which we will ever engage. Given the law’s power over our lives, its history holds an intrinsic value and an irresistible interest. At the same time, in Justice William J. Brennan, Jr.’s words, “[l]aw cannot stand aside from the social changes around it.” This class seeks to track the reciprocal relationship between legal andsocial change by interrogating an astonishing historical moment when the U.S. Supreme Court self-consciously operated as an engine of social transformation.
During Earl Warren’s tenure as Chief Justice (1953-1969), the Court championed the cause of social justice with a zeal unmatched in any other period of American history. With the famed desegregation case Brown v. Board of Education (1954), Warren announced this audacious mission in auspicious fashion, repudiating decades of precedent in an attempt to resolve what W.E.B. Du Bois had already described as “theproblem of the twentieth century.” The Court did not stop there, however. Throughout the 1950s and 60s, Warren and his brethren expanded the protections of expression and religious practice enshrined in the First Amendment, redefined the meaning of “liberty,” “due process” and “equal protection,” and created new protections for those accused and convicted of serious crimes. To ensure everyone had access to these new and expanded rights, the Court liberalizedrestrictions on access to the political and legal processes. This class examines each of these transformations in detail.
The course is ordered into several sections, each analyzing an area in which the Court made important changes to existing legal doctrine and social dogma. These segments conclude with a case study on the lasting consequences of the Court’s attempt to reimagine the Constitution and the political and social institutions it orders.
Like history, law is both a literary art and a social science. Thus, we will be focusing on primary and secondary written sources that attempt to express and contextualize the law at a particular moment in time. While this is primarily a class on history, rather than law, much of the action takes place in the courtroom and, consequently, many of the readings are written with a legal audience in mind. The course calls on you to read these sources carefully and grapple with them. This is seldom easy, but always rewarding.
Required Readings:
Most of the readings in this class are edited cases and photocopied articles and book chapters available through the course LATTE page. In addition to those readings, there are two required texts:
Morton J. Horwitz, The Warren Court and the Struggle for Justice (New York: Hill and Wang, 1998).
Michael J. Klarman, Brown v. Board of Education and the Civil Rights Movement (New York: Oxford University Press, 2007).
These books are on reserve at the library and are widely available for purchase. Readings from these books are referred to hereinafter by the author’s last name. You should print out all other readings and bring them to class.
Grading Policy:
1.Informed Participation: 25%.
With relatively few exceptions, class sessions will be based primarily on discussions of the reading assigned for each meeting. If you do not attend this class prepared to contribute to these discussions, your grade will suffer along with the class.
2.Short Papers:25% total.
You will write two short (four-to-five-page) papers on assigned topics that call on you to argue an historical position based on your interpretation of the class readings. Your best grade will account for 15% of your grade; your worst grade will count for 10%.
3.Case Research Report:25% total.
You will research and analyze the history behind one major case from the timeframe. As part of this assignment, you will listen to the oral argument recordings for the case and conduct further research in consultation with the course instructor before producing an eight-to-ten page paper or internet article,[*] as well as a class presentation reporting your findings.
4.Final Exam:25%.
The final exam will feature a combination of short answer and essay questions.
Other Policies:
1.Academic Honesty:
You are expected to be honest in all of your academic work. Please consult Brandeis University Rights and Responsibilities for all policies and procedures related to academic integrity. Students may be required to submit work to TurnItIn.com software to verify originality. Allegations of alleged academic dishonesty will be forwarded to the Director of Academic Integrity. Sanctions for academic dishonesty can include failing grades and/or suspension from the university. Citation and research assistance can be found at LTS - Library guides.
2.Four-Credit Course (with three hours of class-time per week):
Success in this 4 credit hour course is based on the expectation that students will spend a minimum of 9 hours of study time per week in preparation for class (readings, papers, discussion sections, preparation for exams, etc.).
3.Accommodations:
If you have a documented learning disorder or other disability that may require special accommodations, please see me as soon as practicable to make appropriate arrangements.
4.Laptops:
You may use laptops in this class to take notes or call up LATTE documents or other class materials. In the interests of avoiding needless distractions, please refrain from using laptops for any other purpose.
- Phones:
Endeavor to turn your mobile phones and pagers off before class. Text messaging during class is very rude. Please do not do it.
6.Attendance:
As noted above, attendance will count toward your participation grade for this class. Dispensations for excused absences will be made on the basis of a medical condition or family or personal emergency only.
7.Late Papers:
Turn your papers and other assignments in on time. Any late assignments will be graded down one half-grade for each daybetween the due date and the time you hand in the paper.
- Email:
I frequently communicate with the class and individual students via email. Students should check their email regularly and respond to any queries promptly.
SCHEDULE
Section I: Introduction
Week 1:
Aug. 27:Course Introduction: The Warren Court in the Public Imagination
Week 2:
Sep. 1:Conditions Precedent: Constituting the Warren Court I
Readings:Horwitz, 3-14.
Warren,The Memoirs of Earl Warren (part 1).
Section II: Race
Sep. 3:Conditions Precedent: Race
Readings:Klarman,3-54.
Week 3:
Sep. 8:School Desegregation
Readings:Klarman, 55-78.
Bolling v. Sharpe (1954).
Warren, The Memoirs of Earl Warren (part 2).
Sep. 10:NO CLASS
Week 4:
Sep. 15Massive Resistance
Readings:Klarman, 79-188.
Sep. 17:Toe-to-Toe withJim Crow
Readings:Loving v. Virginia (1967).
Green v. County School Bd. (1968).
Horwitz, 32-51.
Week 5:
Sep. 22:Desegregation in International Perspective
Readings:Mary L. Dudziak, Desegregation as a Cold War Imperative.
Martha Minow, On Other Shores.
Sep. 24:Legacies: A PyrrhicVictory?
Readings:Peter Irons, Jim Crow’s Children.
Audio clip:Justice Breyer’s speech re:Parents Involved in Community Schools v. Seattle (2007) (available on LATTE).
Week 6:
Section III: The First Amendment
Sep. 29:NO CLASS
Oct. 1:Protecting Dissidence: The McCarthy Era
Readings:Horwitz, 52-73.
DUE:Paper 1.
Week 7:
Oct. 6:Protecting Dissidence(?): Vietnam
Readings:U.S. v. O’Brien (1968).
Irons, The Courage of Their Convictions: Mary Beth Tinker v. Des Moines.
Oct. 8:Maintaining the Fourth Estate
Readings:New York Times Co. v. Sullivan (1964).
New York Times Co. v. U.S. (The Pentagon Papers Case)(1971).
Week 8:
Oct. 13:“A Wall of Separation”: The Religion Clauses
Readings:Engel v. Vitale (1962).
Sherbert v. Verner (1963).
Oct. 15:Legacies: The “Culture Wars”
Readings:Jay Wexler, Holy Hullabaloos.
Johnson v. Texas (1989).
Week 9:
Section IV: Due Process
Oct. 20:“Green Pastel Redness”: The Problem of Due Process
Readings:Horwitz, 99-116.
Goldberg v. Kelly (1970).
Oct. 22:Legacies:Griswold’s Children
Readings:John Hart Ely, The Wages of Crying Wolf.
Carey v. Population Services (1977).
Week 10:
Section V: Criminal Justice
Oct. 27:Searching and Seizing
Readings:Dudley, Terry v. Ohio: A Clerk’s Perspective.
Oct. 29:Gideon’s Trumpet and Gault’s Bombers
Readings:Tanenhaus, The Constitutional Rights of Children.
Video:Gideon’s Trumpet.
Week 11:
Nov. 3:A Deafening Silence
Readings:Escobedo v. Illinois (1964)
Miranda v. Arizona (1966).
Nov. 5:Legacies: Tinkering with the “Machinery of Death”
Readings:Furman v. Georgia (1972).
Gregg v. Georgia (1976).
Stevens, On the Death Penalty.
Week 12:
Section VI: Democracy
Nov. 10:“One Person, One Vote”
Readings:Horwitz, 74-98.
Nov. 12:Making the Votes Count
Readings:Keyssar, Breaking Boundaries.
DUE:Paper 2.
Week 13:
Nov. 17:Legacies: A Civil Death
Readings:Richardson v. Ramirez (1974).
Section VII: Access to the Courts
Nov. 19:Opening the Doors?
Readings:Bowman, Leaving the Doors Ajar.
Week 14:
Nov. 24:“Political” Questions
Readings:Powell v. McCormack (1969).
Massachusetts v. Laird (1970).
Nov. 26:NO CLASS
Week 15:
Dec. 1:Habeas Corpus
Readings:Yackle, The Story of Faye v. Noya.
Dec. 5:Legacies: The Judicial Politics of Access
Readings:Boumediene v. Bush (2008).
Ashcroft v. Iqbal (2009).
Week 16:
Dec. 8:Backlash and Counter-Revolution(?)
Readings:Warren, The Memoirs of Earl Warren (part 3).
Tushnet, William Rehnquist’s Court.
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[*] Please be sure to consult ahead of time with the instructor if you wish to produce an electronic article in lieu of a conventional paper.