In today’s Washington Post Book World Jeffrey Rosen reviews a new biography of Earl Warren by Jim Newton, a Los Angeles Times reporter and editor. Newton argues, according to Rosen,
that Warren was indeed among the greatest chiefs in history precisely because there was little divergence between his politics and his jurisprudence.
Newton’s point, endorsed by Rosen, is that it is necessary to be a good consensus-building politician in order to be an effective chief justice. That’s fine as far as it goes, but the analysis underlying this observation, if any, quickly turns seemy, as indicated by the following paragraph (emphasis added):
Warren wrote some of the most famous passages in Brown in his own hand. But for much of his tenure, he delegated most of the writing to his clerks, giving them broad guidance about his vision of fairness and justice and not fussing about the technical details. This emotionalism sometimes made his jurisprudence seem unprincipled, despite his purported devotion to principle. Warren’s draft opinion in the case requiring police to read suspects their Miranda rights, Newton acknowledges, seemed “nearly as much the work of a governor as that of a justice.” And Warren opposed the burning of draft cards in 1968 but supported students’ right to curse the draft in 1969, apparently because his nemesis, Nixon, had won the 1968 presidential election and Warren had turned against the war. At times, his tendency to view all legal issues in personal and human terms seemed jarringly political.
Do Newton and Rosen think Warren’s legal positions were unprincipled or only that they seemed to be?
You’d think this would be an easy call since one central characteristic of a principled approach to judicial decisionmaking is that it causes judges on occasion to issue opinions that conflict with their political preferences.
Or maybe that only seems to be the case.