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Unpublished Paper
The Judicial Restraint of the Warren Court (and Why it Matters)
ExpressO (2007)
  • Rebecca E Zietlow

Abstract: The Judicial Restraint of the Warren Court (and Why it Matters)

This article argues that the strongest contribution that the Warren Court made to expanding equality rights was not its judicial activism in protecting those rights, but its restraint in allowing Congress to protect those rights. This argument may seem counter-intuitive given that the Warren Court is practically synonymous with judicial activism. Indeed, the Warren Court’s activism in protecting individual rights provides the paradigm for those constitutional scholars who argue that an active judiciary is necessary for the adequate protection of those rights. However, this paradigm is relatively new. Prior to the Warren Court, supporters of equality rights had advocated judicial restraint, not judicial activism. They recognized that throughout our history Congress has done far more to protect equality rights than have the federal courts.

The Warren Court also acknowledged the importance of congressional protection of rights. That Court showed a remarkable amount of restraint towards congressional power, especially when Congress used that power to protect rights of belonging, those rights that that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community.

This article has implications for the political debate, in which supporters of rights of belonging often find ourselves championing courts as the protectors of those rights. It also sheds light on the ongoing debate among constitutional scholars over “popular constitutionalism,” in which skeptics argue that judicial review is necessary for the protection of minority rights. Both arguments are based on a misunderstanding of the historical relationship between courts, Congress and rights of belonging, and a misunderstanding of the Warren Court’s role in that history. Understanding the judicial restraint of the Warren Court will help to open up a necessary political debate over the scope and meaning of our rights of belonging.

Publication Date
March, 2007
Citation Information
Rebecca E Zietlow. "The Judicial Restraint of the Warren Court (and Why it Matters)" ExpressO (2007)
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