A Battle of the Chief Justices: Earl Warren vs. John Roberts

Recently, I have read the following books Justice for All: Earl Warren and the Nation he Made by Jim Newton and The Chief: The Life and Turbulent Times of Chief Justice John Roberts by Joan Biskupic. These biographies provided in-depth insight of the jurisprudence background of Chief Justice Warren and Chief Justice Roberts and how these figures have become pillars of the law. After reading both of these works, however, one can ascertain the clear distinction in their philosophy and approach to the bench. This piece will briefly highlight some key areas. Both of these books I would highly recommend for an in-depth account.

Earl Warren

When reflecting on Earl Warren, it is important to note the influence of politics on his role of Chief Justice. Earl Warren worked his way up climbing the ladders of the California state legal and political scene. From district attorney of Alameda County to later Attorney General of California and Governor of California, the experiences shaped him to later take a very active and compromising role when he would later become Chief Justice of the United States Supreme Court, after being appointed by President Eisenhower to replace Fred Vinson in 1953. He would serve from 1953-1969. His tenure would be defined by the Supreme Court embracing living constitutionalist and progressive legal philosophies. He would commonly align with Justice William Brennan in forming a solid liberal block on the court.

Warren would also head the Warren Commission in investigating the assassination of President John F. Kennedy. While rising in the California political scene, Warren would make very valuable political allies that would set the foundation for his later rise to national prominence during his campaigns for president. He was especially influenced by former California Governor Hiram Johnson and his progressive approach to politics. Earl Warren, himself, can commonly be described as a progressive Republican.  The book also elaborated on his long-held rivalry and disdain for former President Richard Nixon dating back to their days in the California political machine and vying for the heart of the California Republican Party.

Several cases the Warren Court handled would become major frameworks of Constitutional law as we know it today, however a few we will focus on here that typically get a large amount of attention- Brown v. Board of Education, Miranda v. Arizona and Griswold v. Connecticut.


In Brown, the court considered the constitutionality of racial segregation in schools. Chief Justice Warren delivered the opinion of the unanimous court, ultimately finding segregation unconstitutional. In Justice for All, it provides an extensive background of the efforts of Chief Justice Warren in ensuring this opinion was unanimous. He wanted this to be delivered as a strong statement to the nation. While the outcome of this decision was long-overdue and correct, the reasoning Warren used in his opinion is the subject of debate. Much of his opinion supporting the desegregation was based on sociological studies and political progressive points discussing the detrimental impact segregation has on students with a sparkling of “inherently unequal” under the Equal Protection Clause. While segregation likely had a detrimental impact on students, the bedrock of a legal opinion should not be based on sociological and scientific data, that should be more of a compliment. The Court failed to use natural law arguments or arguments from the founders that recognized the importance of people being offered equality and liberty under the law, especially now that the society had progressed with the post-Civil War amendments.

It did not provide a comprehensive legal analysis, although there were also opportunities to pursue such a path under the 14th Amendment. The court largely shied away because it felt that during the amendment’s original adoption it did not consider the interests of the public education system as understood today and thus cast further analysis aside. A stronger legal analysis, however, would have considered how there were schools in the nation that simply did not provide equal facilities to black students at that time, a clear Equal Protection violation, rather than relying on sociological studies and data. The text of the Equal Protection Clause is clear and should have been in focus. Focusing on “detrimental impact” is a very loose standard and could be used in a plethora of other situations and cases as a vague and hollow substitute for genuine legal analysis. When reflecting on impact and remedies, such references are better suited for Congressional statutes and legislatures’ attempts to meet the needs of society, not for a core principle of Supreme Court opinions, with 9 judges not qualified to delve into those areas. Judges must remain faithful to the text and Constitution and not drift from that premise as a matter of first principle.

Finally, because of the short-comings and inadequate legal analysis of Brown 1, the Court was forced to focus on a mechanism enforcing the Brown 1 desegregation opinion a year later in Brown 2 because many school districts refused to comply.


In Miranda, the court considered a well-known issue of criminal procedure today, the creation of the so-called Miranda Rights. In this case, defendant was arrested and questioned at the police station. He eventually confessed to the crimes and provided a written statement that the defense objected to at trial. The core issue was that the police did not inform him of his right to remain silent and right to an attorney during interrogation. Earl Warren, in writing for the Court, stated that under the Fifth Amendment the plaintiff had a right be warned before questioning right away on the right to remain silent and to an attorney. The rights could be waived, but they must be stated from the beginning. Evidence could not be used against defendant at trial unless there was clear evidence of waiver. This decision stirred much controversy in expanding the rights of the criminally accused and was decided in a 5-4 decision.


In Griswold, the court found that a Connecticut statute banning the use of contraceptives was unconstitutional. The opinion, written by Judge William O. Douglas advanced the principle of the right to privacy and stated within the bill of rights that “penumbras” or zones of privacy that would support this concept. The right to marital use of contraception was a protected interest within this zone, thus the statute was ruled unconstitutional. The right to privacy articulated in Griswold would again be brought into focus in cases dealing with abortion and gay rights cases.

In reflecting on Chief Justice Earl Warren’s legacy, one can ascertain his approach to the law as pragmatic. If he saw a wrong that presented itself in a matter of national importance, he was willing to take a more proactive role in reaching a legal outcome that was reflective of the modern times. He exercised much less judicial restraint unlike (as we will note later) John Roberts. Like Roberts, however, he did focus special attention to the appearance of the Supreme Court before the nation. He sought to elicit judicial compromises in his opinions and final vote count to display a united and uniform approach to legal issues captivating the country.

John Roberts

John Roberts, the current Chief Justice of the United States Supreme Court, has provoked much debate from both sides of the aisle in recent years. Since the retirement of Justice Anthony Kennedy, the typical swing vote in many cases of national importance, Chief Justice Roberts while more conservative than Kennedy will likely now find himself with greater influence and authority on the Court.

Before we focus on a few modern cases of note, we must consider the background of Chief Justice Roberts. The Chief by Joan Biskupic provides an excellent background of Justice Roberts and where the Court may be headed in the coming future under his guidance. Roberts attended Harvard College and Harvard Law School. He clerked for former Chief Justice William Rehnquist; served as a special assistant to the U.S. Attorney General during the Reagan Administration; served as an assistant to the Office of White House Counsel; worked in private practice where he argued several cases before the United States Supreme Court and finally sat as a federal judge on the Court of  Appeals for the D.C. Circuit. Judge Roberts took a more traditional legal path to reach appointment to the Supreme Court and was very familiar with how D.C. operated from his many experiences. A defining characteristic of the legal philosophy Roberts is judicial minimalism.

Some notable opinions of John Roberts included the majority opinion in NFIB v. Sebelius (Obamacare), dissent in Obergefell v. Hodges and his concurring opinion in Citizens United v. FEC.


In NFIB, the book goes in-depth into the widely publicized story that Justice Roberts did in fact change his vote to uphold President Obama’s signature legislative achievement, The Affordable Care Act. He did not, however, rely on the Commerce Clause to uphold it, but rather the taxing power and found the penalty provided in the bill served as a tax and considered its collection by the IRS for further support.

The book also discusses how Justice Kennedy worked into the eleventh hour to try and get Justice Roberts to switch his vote back. It also touched on the frustrations of the other conservative jurists- Thomas, Alito and Scalia on the decision of Roberts.  Justice Roberts adherence to judicial minimalism and his concern for how the Court is viewed likely contributed to his decision. The book also provides a discussion on how Roberts likely disagreed with the law itself as a matter of principle but battled back and forth to assess if it was his duty to interfere in its enactment if there was Constitutional path present. There was also discussion on the political pressures by the media and politicians that were hoping the Supreme Court would uphold the law. The book also briefly touches on a compromise Roberts reached with the traditional liberal justices on finding that the Medicaid expansion provision under the law, however, was unconstitutionally coercive.


            In Obergefell, the Supreme Court created a Constitutional right to same-sex marriage. The majority opinion, written by now retired Justice Anthony Kennedy has been the subject of much controversy. A common critique of the decision is how it is light in legalese and more a prose opinion focused on public policy. In my opinion, Chief Justice Roberts’ dissenting opinion which he read from the bench might be his greatest written opinion throughout his tenure on the Supreme Court to this point. Another point to consider is the fact, that in reading this dissenting opinion from the bench, it took on special significance for him. Judges do not often take this step. He wanted to reinforce his position that the Constitution had lost that day and was very critical of the outcome and supported reasoning of the majority’s decision.

In his dissent, he articulated federalism principles in calling into question the role of the Supreme Court in expanding the definition of marriage in a legal context, thereby, taking the power from the states that had previously defined their own legal definition of the practice. He continues his theme of judicial minimalism in stating that the role of the Supreme Court is not that of a legislature, this was a question left best for the states to handle. The Constitution is silent on the issue of marriage and he raised a major concern of judges assessing which unenumerated rights should be deemed fundamental and critiqued substantive due process as a blank check for judges to reach these outcomes.  One phrase that stands out reflects back to Federalist 78 penned by Alexander Hamilton. Roberts stated “the majority’s decision is an act of will, not legal judgment.” This is a founding principle of our understanding of the Supreme Court, as he borrowed language from Hamilton. Finally, towards the end of his opinion he expresses concern for people of faith and faith institutions who will now be brought into conflict with the newly invented Constitutional right. This foreshadowing would later prove correct in the cases since that the Court has heard and has considered.

 Citizens United

            Citizens United examined the issue of corporate involvement in campaign finance. It is a highly controversial case and the book provides an in-depth look at this case as one of the early challenges of the Roberts Court. Justice Kennedy wrote the majority opinion and Roberts wrote a concurrence. A non-profit conservative organization produced a film targeting Hillary Clinton shortly before the Democratic Primary Election of 2008. It was considered a violation of Bipartisan Campaign Reform Act with its proximity to the election. Justice Kennedy, in writing for the majority, held that the Act violated the right to free speech protected by the First Amendment. Corporate and union independent funding of political speech could not be restricted in such a way by the Bipartisan Reform Act and there was more freedom for their spending. As a result of this decision, there has been a growth of corporate election advertisement supporting political campaigns.

The Roberts concurrence focused on the principle that “the text and purpose of the First Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.” He then continued with an in-depth assessment of stare decisis (adherence to prior decisions) and how the Court was correct in overturning prior case law that was not faithful to the First Amendment in this area. In his analysis of stare decisis he discusses how the Supreme Court is not bound to misinterpreted law and stare decisis is not always an overriding principle. He does cite to Brown as an example of a respectable outcome in overturning Plessy v. Ferguson on the question of segregation among other major decisions that overturned prior cases.

Overall, the Citizens United decision has continued to be very controversial with its assessment of corporate personhood and campaign finance from corporations. Similar to the anger of the conservative jurists in NFIB, the book highlights the anger of the liberal judges when this decision was handed down. It also discusses some of the history of campaign finance jurisprudence and how major this decision was in this area of Constitutional law. This is one of the signature cases handed down by the Roberts Court and remains a relevant topic of discussion in the national scene today.

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