Democracy and Equality by Geoffrey R. Stone & David A. Strauss

Democracy and Equality: The Enduring Constitutional Vision of the Warren Court
By Geoffrey R. Stone and David A. Strauss
Oxford University Press, 2020

As law professors Geoffrey Stone and David Strauss shouldn’t have to point out but nevertheless do in their brief, powerful new book Democracy and Equality: The Enduring Constitutional Vision of the Warren Court, none of the epochal rulings of the Warren Court, much maligned by US convservatives for its ‘activism’ and lack of respect for the Constitution, were in fact illegal. “The idea that the Warren Court wasn’t lawful because it wasn’t originalist has things backward,” they write. “The fact that even conservatives are unwilling to repudiate the central Warren Court decisions shows that originalism is not viable - and that the approach the Warren Court took has a more solid foundation in law than anything originalism can provide.” 

A dozen of those decisions - key cases like Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and Loving v. Virginia - are taken in isolation and examined with sharp insight and a great deal of historical compression that never feels rushed or partisan.  The authors stress throughout that although the Warren Court had a more or less uniform judicial vision, it was at heart guided by “a principled and sensible approach to giving meaning to the often ambiguous provisions of our Constitution.” 

They take readers through the history and details of their signature cases, and, given the times, they naturally append to this invaluable guide some dire predictions about the future of the Court, given the direction in which it’s moved in the decades since the Warren era (a drift also masterfully analyzed in Adam Cohen’s forthcoming book Supreme Inequality). Whether it’s affirmative action issues, gerrymandering, the Voting Rights Act, Bush v. Gore, labor unions, the death penalty, abortion, women’s rights, gun ownership, or a dozen other issues, Stone and Strauss make a fairly incontestable assertion: “When trying to explain and predict how our increasingly conservative justices vote today in the most controversial and important cases … the best predictor is not ‘judicial restraint’ or ‘originalism’ or ‘calling balls and strikes,’ but asking “what would political conservatives want?” Considering the main demographic target of most Warren Court rulings, if we refine this to “what would political conservatives in the American South want?” we have both a nearly-infallible calculus and also a fitting coda to this slim and invaluable book.

—Steve Donoghue is a founding editor of Open Letters Monthly. His book criticism has appeared in The Boston Globe, The Wall Street Journal, The Washington Post, and The American Conservative. He writes regularly for The National, The Vineyard Gazette, and The Christian Science Monitor. His website is http://www.stevedonoghue.com.