The Warren Court and Congress: Both Necessary - Neither Sufficient

When we hear the words ‘Warren Court’ and ‘Congress’ most people silently add the word versus – the Warren Court versus Congress. And not without cause. From the Court’s rulings in internal security cases in June 1957 through the last majority opinion delivered by Earl Warren in Powell v. McCormack in June, 1969 the Warren Court often was pitted against a Congress that chafed at judicial intervention and assertions of judicial authority. But in some of the Warren era’s most important rulings, we really ought to insert the words ‘together with’ – the Warren Court together with Congress. This was particularly true of civil rights: Voting rights did not come from the Marble Temple alone; desegregation of public accommodations required an Act of Congress together with court rulings; and inroads against segregated housing only happened when Congress acted together with the court. The words together with are carefully chosen: the Court was not collaborating with Congress. In some instances one institution built on the work of the other while in other cases one institution shaped, framed, influenced and constrained the other. Their medium of communication was constitutional and statutory interpretation and precedent – both legislative and judicial. This paper examines three very different ways in which the words ‘together with’ fit between Warren Court and Congress in an effort not only to learn more about an important chapter in American political history, but also to contribute to a broader theory of the cross-institutional role and function of precedent. Call these (1) The Strange Case of Judicial Precedent as Sword – and Shield; (2) The Case of the Congressional Exploitation of Judicial Precedent – and its limits; and (3) The Case of the Judicial Exploitation of Legislative Precedent.