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August 26, 2020

"Reflections on the Warren Court's Criminal Justice Legacy, Fifty Years Later: What the Wings of a Butterfly and a Yiddish Proverb Teach Me"

The title of this post is the title of this new paper authored by my colleague Joshua Dressler which is available via SSRN.  Here is its abstract:

I reflect on the criminal justice legacy of the Warren Court, which ended approximately a half-century ago. I ask: How much of the law and values that Earl Warren and his colleagues transmitted to us remain a part of our constitutional fabric today?  Put more bluntly, was the Warren Court successful or a failure in meeting its criminal justice goals?

As I see it, the goal of Earl Warren and his most progressive colleagues during his 15+ years on the high court was to reshape the criminal justice system by placing restrictions on those with the greatest power, primarily the police and prosecutors, and by providing greater rights to the rest of us (particularly the most vulnerable amongst us) when we are confronted by the awesome power of government in our homes, streets, police stations, and courts.

If those were, indeed, the amorphously described criminal justice goals of the Warren Court, and if we are evaluating it by looking at where we are today in regard to those goals, I am forced to conclude that the Warren Court was to a significant extent a failure.  And yet, as the title of this article hopefully suggests, there may be another way to look at the Warren Court’s efforts.  Indeed, I will ultimately conclude that, at least for civil libertarians, we owe a debt to Earl Warren and his Court.

August 26, 2020 at 10:14 AM | Permalink


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