your connection to The Boston Globe

An Earl Warren shadow sheds some light on Alito

WASHINGTON -- Earl Warren, the chief justice whose bland Joe Friday appearance disguised the soul of the century's leading legal reformer, will be a ghost witness at Samuel A. Alito Jr.'s confirmation hearings.

Warren, who died in 1974, is always on the minds of conservative presidents and senators reviewing Supreme Court nominations, since he established the trend of Republican court picks shocking their sponsors by turning out to be liberal jurists.

When Dwight D. Eisenhower nominated the longtime California governor to be chief justice in 1953, he thought he was choosing a judicial moderate. Instead, Eisenhower got one of the most liberal justices in history.

This time around, conservatives are reasonably certain that Alito will not become a political transvestite when he dons his judicial robes. In fact, it is Alito's insistence that he will not be another Warren that is stirring concern.

''In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions," Alito wrote in his 1985 application to be deputy assistant attorney general in the Reagan administration.

Alito has tried to play down these sentiments. But he is not alone in having been drawn into the law by concerns about Earl Warren.

Alito's entire generation of conservative jurists emerged from opposition to the Warren court. Some of them were concerned by the way that key opinions in Warren's tenure were grounded in the justices' own conceptions of freedom, rather than court precedent.

Others were frankly opposed to the decisions themselves, which extended the reach of the Constitution to block states from maintaining segregated schools, unequal voting districts, laws against birth control or interracial marriage, and the ability to try defendants without providing a lawyer to defend them.

All the recent questioning of Alito's level of commitment to maintaining court precedent is a way of trying to decipher which type of conservative he is.

Would he be the kind who disliked Warren because he overturned a lot of precedents, or the kind who wants to dive in himself and overturn the precedents of the Warren Court?

Warren fueled his own critics by insisting that Supreme Court opinions should be understood by regular citizens, and not just lawyers, even if it meant that the opinions did not address every legal complication.

Even some liberal scholars have found fault with this approach, through which Warren and his colleagues, William O. Douglas, Thurgood Marshall, and William J. Brennan Jr. decided cases based on their own sense of justice rather than through legal doctrines refined over generations.

Republicans have distilled their critique of the Warren court to President Bush's admonition that judges should interpret the law, not make it. Put that way, Bush's distrust of the Warren court is shared by most of the public. But the decisions themselves are far more popular, especially because they tended to grant individuals more protection from government authority.

When the public has been given a choice between sustaining the legacy of the Warren Court or overturning it -- such as during the seminal 1987 hearings into Robert H. Bork's nomination for the Supreme Court -- Warren has prevailed.

Democrats believe this may account for Alito's refusal to offer his views on specific issues: The public likes the idea of a judge who only interprets the law, as long as he interprets it in a way that preserves most of the Warren court's legacy.

Warren served as chief justice at a time --1953 to 1969 -- when most of the court's quarrels were with state governments whose racially tinged practices ran afoul of the Constitution, at least in Warren's view. For decades, federal courts had stepped lightly around state governments, preserving a large sphere of local autonomy.

Warren was not reluctant to strike down state laws. He once said his greatest legacy was invoking the Constitution's equal protection clause to prevent states from maintaining unequal voting districts -- for example, by giving a hamlet the same number of representatives as a major city.

Ironically, it was the reapportionment cases, establishing the ''one-person, one-vote" rule, that Alito cited in his 1985 job application as one of his main objections to the Warren Court.

Warren, who was at heart a politician and who regretted never having become president, would probably welcome having this piece of his legacy aired at Alito's confirmation hearings -- knowing that it would be broadly defended, probably even by a backtracking Alito.

But Warren, like most of today's liberals, would probably be more concerned about what might happen later, when Alito is on the Supreme Court.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond.

Today (free)
Yesterday (free)
Past 30 days
Last 12 months
 Advanced search / Historic Archives