A Look Back at the Warren Court’s Due Process Revolution Through the Lens of Immigrants

Abstract

At the University of the Pacific Law Review Symposium titled “The Warren Court’s Criminal Procedure Revolution: a 50 year Retrospective,” held October 11, 2019, much of the commentary around the legacy of the Warren Court’s due process revolution was somber for very legitimate reasons. Yet, a retrospection of this important due process revolution through an immigration lens elucidates lessons perhaps overlooked. Foremost, by expanding the universe of the laws, people, and context we consider to evaluate the Warren Court’s criminal due process legacy, we glean that it is much broader than initially imagined; indeed, broader than it was intended even by the Warren Court itself. Moreover, this legacy is perhaps not quite finished in the area of immigration law. At least, we foresee that the crimmigration crisis and the immigration federalism wave could still yield an unintended and unimagined due process revolution for immigrants that is long overdue. We proceed in this essay in two principal parts. In Part I, we provide a historical context to the immigration cases decided during the Warren Court and contrast the few due process gains that immigrants enjoyed compared to criminal defendants. In Part II, we expand on the important immigration law developments fifty years post-the Warren Court through the lens of the Warren criminal due process revolution.