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Unpublished Paper
Justice-as-Fairness as Judicial Guiding Principle: Remembering John Rawls and The Warren Court
ExpressO (2015)
  • Michael Anthony Lawrence
Abstract

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of Justice. The Article relates how Rawls’s theory, based on principles of fairness and equal opportunity, has resonated in legal and constitutional theory.

Finally, the Article suggests that by combining elements of both the Warren Court’s jurisprudence and John Rawls’s theory of justice, it is possible to devise an improved approach to judicial decision-making that would better serve America’s core principles of liberty and equal justice for all. Such a justice-as-fairness approach would enable the judiciary to impartially address the social and political realities of the twenty-first century.

Keywords
  • John Rawls,
  • The Warren Court,
  • Justice-as-Fairness,
  • Equity,
  • Earl Warren,
  • Jurisprudence,
  • equal protection,
  • due process,
  • fourteenth amendment,
  • A Theory of Justice
Publication Date
March 9, 2015
Citation Information
Michael Anthony Lawrence. "Justice-as-Fairness as Judicial Guiding Principle: Remembering John Rawls and The Warren Court" ExpressO (2015)
Available at: http://works.bepress.com/michael_lawrence/16/