Come Back to the Nickel and Five: Tracing the Warren Court's Pursuit of Equal Justice Under Law

Abstract:     
Korematsu v. United States, 323 U.S. 214 (1944), presented a constitutional conundrum: How did the Supreme Court justify subjecting an act of the United States government to the demands of the equal protection clause of the fourteenth amendment, a full ten years before the development of the reverse incorporation doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954)? The solution to this problem of premature adjudication explains an extraordinary number of doctrinal wrinkles in contemporary constitutional jurisprudence. The California attorney general who inflamed the anti-Japanese sentiment leading to Korematsu, Earl Warren, later presided as Chief Justice over the rise of a three-pronged consensus that defined civil rights law throughout much of the later twentieth century. First, according to Bolling's reverse incorporation doctrine, fifth amendment due process binds the federal government to equal protection standards that constrain states under the fourteenth amendment. Second, Congress enjoys expansive power under Section 5 of the fourteenth amendment to enforce the substantive guarantees extended by Section 1 of that amendment, particularly due process and equal protection. Third, the expansive power of Congress over interstate commerce, first recognized during the New Deal, includes the power to pass comprehensive civil rights legislation.

The Warren Court's civil rights consensus, which may be called the Nickel and Five, would unravel in subsequent decades. The Burger Court sustained all three prongs of its predecessor Court's approach to civil rights. But the issue of race-based affirmative action exposed a fundamental tension between the Nickel of reverse incorporation via fifth amendment due process and the Five of expansive congressional power under Section 5 to define the substantive content of fourteenth amendment due process and equal protection. The revival during the Rehnquist Court of meaningful judicial review of Congress's commerce clause and Section 5 powers has effectively reduced the Warren Court's civil rights legacy to reverse incorporation. The Warren Court's insistence upon judicial equivalence in the review of racial classifications under federal and state law could not coexist with an expansive vision of congressional power over civil rights. The Nickel and Five has collapsed, and with it has fallen Earl Warren's magisterial vision of equal justice under law.

Number of Pages in PDF File: 106

Keywords: Civil rights, reverse incorporation, due process, equal protection, commerce clause, Korematsu, Bolling, Morgan, Lopez, Seminole Tribe, Earl Warren, Warren Burger, William Rehnquist

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