Rebecca E. Zietlow, Toledo, has a new paper, with a different approach to rights and the Warren Court, The Judicial Restraint of the Warren Court (and Why it Matters). Prof. Zietlow also has an earlier, related paper on SSRN, published in the Rutgers Law Review, To Secure These Rights: Congress, Courts and the 1964 Civil Rights Act. Here's the abstract for the new paper:
In politics and in academia, the Warren Court is virtually synonymous with the term “judicial activism.” Yet this article points out another side of the Warren Court's jurisprudence – its restraint towards congressional power, especially when Congress used that power to protect the rights of minorities in our society. It consider the role of a particular set of rights - 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. Understanding the Warren Court's restraint provides an opportunity to reconsider the proper relationship between courts and legislatures with regard to rights of belonging. Historically, Congress has done considerably more to protect those rights, and I argue that Congress is institutionally better suited to do so. Moreover, prior to the Warren Court, supporters of rights of belonging, not their opponents, were the staunchest opponents of judicial activism. My account goes against the conventional wisdom that courts, not legislatures, are best suited to protect rights of belonging. The Warren Court's activism in protecting individual rights is the basis for this conventional paradigm. Yet the Framers of the Fourteenth Amendment intended Congress, not federal courts, to be the primary protectors of those rights. The Warren Court understood this, and allowed Congress ample opportunity to do so. Starting in the early 1960s, Congress enacted numerous measures expanding the rights of minorities to belong in our civic society. Hence, the judicial restraint of the Warren Court, not its activism, has made the most positive impact on rights of belonging in this country. Understanding the judicial restraint of the Warren Court also provides an opportunity to reconsider the proper role of moral values in our political debate. Conservatives often argue that legislatures, not courts, should determine matters of moral values. I agree, and argue that a healthy political debate over values not only will strengthen our civil society, but it will also result in expanding rights of belonging in our society.