The Warren Court, Legalism and Democracy: Sketch for a Critique in a Style Learned from Morton Horwitz

TRANSFORMATIONS IN AMERICAN LEGAL HISTORY, VOLUME II, Alfred Brophy, Daniel Hamilton, eds., Forthcoming

Columbia Public Law Research Paper No. 09-196

20 Pages Posted: 13 Jan 2009  

William H. Simon

Columbia University - Law School; Stanford University - Stanford Law School

Abstract

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social justice that emerged clearly after the Warren Court era but was conceptually available during it.

Suggested Citation

Simon, William H., The Warren Court, Legalism and Democracy: Sketch for a Critique in a Style Learned from Morton Horwitz. TRANSFORMATIONS IN AMERICAN LEGAL HISTORY, VOLUME II, Alfred Brophy, Daniel Hamilton, eds., Forthcoming; Columbia Public Law Research Paper No. 09-196. Available at SSRN: https://ssrn.com/abstract=1325328

William H. Simon (Contact Author)

Columbia University - Law School ( email )

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Stanford University - Stanford Law School ( email )

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