Roberts Court Steps Back Rights Where Warren Court Leaped Ahead

The nosedive in public opinion about the US Supreme Court isn’t just the normal debate about whether the court is too conservative or too liberal. The issue isn’t, as one commentator put it, that the Roberts court is simply “a conservative Warren court,” referring to the progressive court that released landmark civil rights and liberty decisions while Earl Warren was Chief Justice.

The current public dismay about the court reflects that something more fundamental is underway. Over the past century, the Supreme Court, led by several chief justices, used its power to extend civil rights and civil liberties and to provide government with flexible authority to protect public health and welfare.

But the Roberts court, by using the power to overrule precedent and create new constitutional rules, has rolled back protections for individual liberty and weakened the government’s role in protecting public welfare. The Roberts court is using its power to retrench.

Twice in my lifetime, the Supreme Court has become the object of public controversy and political jockeying—during the Chief Justiceship of Earl Warren and during the current Roberts court.

In the 1950s and early 1960s, the Warren court came under relentless attacks for its progressive decisions. I recall driving along highways in the south and west passed countless billboards demanding, “Impeach Earl Warren.”

Some Americans were unhappy with the Warren court’s press to extend human rights and civil liberties, especially when the court decided it was necessary to overrule prior decisions to do so.

The Warren court’s most spectacular act was to unanimously overturn the pernicious doctrine of “separate but equal” and to declare in Brown v. Board of Education that segregation is inherently a violation of the principle of equality enshrined in the 14th Amendment.

Building on that precedent, the court under Warren’s successor, Warren Burger, approved use of various controversial “affirmative action” plans to facilitate opportunities for Black students to pursue education at all levels.

Similarly, in the face of centuries of Southern segregation and broader racism, Warren and his colleagues affirmed Congress’s power to enact statutes such as the Civil Rights Act of 1964 and upheld and enforced the Voting Rights Act of 1965.

For the first time, the Warren court established a constitutionally protected “right of privacy” in marriage and other sexual encounters. This right later formed the predicate for the decision (by the court led by Chief Justice Burger) in Roe v. Wade recognizing the (conditional) right to end a pregnancy.

The Warren court also consistently upheld the decisions of federal administrative agencies to regulate public health and safety so long as the agencies carefully addressed the salient issues.

These decisions outraged some, but the controversial decisions were generally part of a pattern of expanding civil and human rights and public welfare.

By contrast, public dissatisfaction with the Roberts court is rising amid the resolute march of the six-justice conservative majority to roll back some of those decisions, overruling precedents when necessary to reduce protections for civil rights and to cancel a major civil liberty decision.

The difference is fundamental. The most important decision provoking widespread popular protest and sparking calls for corrective reforms was the 2022 Dobbs decision overruling Roe in a 6-3 majority. Although Roe itself had been controversial from the start, the Roberts court’s decision to overturn it marked the first time in American history that the court had annulled what it had recognized as an individual constitutional right.

But Dobbs wasn’t the Roberts court’s only dramatic reversal in the march to expanded civil rights approved by earlier courts. In a series of devastating blows to protecting the voting rights of minorities, the Roberts court cut back on the enforceability of the Voting Rights Act, adopting the Orwellian rationale that, because the act had successfully given Black voters access to the ballot box, the act could no longer be enforced.

Repudiating decades of case law sustaining a variety of programs enhancing opportunities for Black students, the Roberts court struck down affirmative action in higher education.

In its Citizens United case, the court overruled several precedents that had allowed federal and state authorities to limit the size of political contributions by major corporations and other organizations. Thus, the Roberts court restored the power of those institutions to dwarf the financial impact of grass-roots voters on the selection of candidates.

About the only area where the Roberts court expanded what the conservative majority would view as individual rights is in creating and expanding the supposed Second Amendment right to carry firearms almost anywhere. Even conservative Chief Justice Burger called creation of this alleged right a gigantic “fraud on the American public.”

Echoing the approach of early anti-New Deal cases from the mid-1930s, the Roberts court has imposed structural retrenchment narrowing the ability of federal agencies to protect health and welfare.

For example, the court invented a new judicial theory, called the major questions doctrine, under which any administrative agency must to be able to point to specific congressional language to address anything the court considers a “major issue.” The court then dropped the other shoe, overruling the long-standing Chevron doctrine and deciding that expert agencies that regularly interpret the statutes entrusted to their enforcement are entitled to no deference in interpreting those statutes.

The underlying judicial philosophy appears to be the right-wing effort to immobilize the “administrative state.” The predictable effect of those decisions is to make it harder for agencies to develop and implement policies to promote public health and safety under the statutes that Congress entrusted to them to enforce and that the New Deal and Warren courts permitted.

Finally, in what I regard as the most dangerous and reactionary decision in the Roberts era, the court ignored the core teaching of the Nixon White House tapes decision 50 years ago—that no one, including the president, is above the law. Instead, Roberts and five colleagues reached the nadir of Tory reaction and ruled that, like a king, the law can’t touch a president who commits federal crimes.

The Roberts court persists in choosing to wield the ultimate power to abandon precedent in pursuing retrenchment. That choice by a six-justice majority justifies the public oppobrium that the Roberts court has brought upon itself.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Philip Allen Lacovara was deputy solicitor general of the US for criminal and national security matters, counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

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