The Law: Earl Warren's Way: Is It Fair?

(4 of 4)

Reynolds v. Sims prompted a dissent that crystallized the criticism of Warren's approach to the court's role. Did the court have the right to impose electoral rules on state legislatures? Said Justice John Harlan: "This [majority] view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional 'principle,' and that this court should 'take the lead' in promoting reform when other branches of government fail to act." Yale's Professor Alexander Bickel complained that the court "seems to lack a sense of the limitations of the institution."

Eroded Majority. Characteristically, Warren defended his way in human rather than legal terms. Writing in FORTUNE, he protested that "our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other . . . Our system faces no theoretical dilemma but a single continuous problem: How to apply to ever changing conditions the never changing principles of freedom."

In 1969 Warren retired, at a relatively robust 78. Living in Washington recently, he had been working on an autobiography. Deaths, resignations, other retirements and Nixon's appointment of conservatives have eroded the involved, liberal majority that was the core of the Warren Court. The hopes raised by some of the decisions now may seem simplistic. Brown, for instance, was not the panacea for racial inequality that many may have envisioned. In their concern for citizens' rights however, the decisions were peculiarly American and epic. They survive, and so will Earl Warren's place in U.S. history. Early in the Republic, the court's great challenge was to ensure the strength and capacity of the Federal Government. Warren's opportunity, and mission, was to protect individual citizens from the enormously expanded power of Government. That was, as Warren might say, only fair.