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Jeffrey Stone, David Strauss, University Of Chicago Law School discussed on Bloomberg Law


Violence junior professors Jeffrey stone and David Strauss of the university of Chicago law school they are the authors of the new book democracy and equality the end during constitutional version of the Warren court David explain the significance of the court in law and in history I think it is significant in two ways one is that the attack cold a real problem that's been at the heart of American life from the beginning that the problem of race discrimination racial subordination of African Americans in the Warren court tackle that problem when the other branches of government we're not willing to hand however much progress it made it made progress and that is a permanent part of it's like it's the and no other court in our history tackle that problem we can make progress on to win the war that's one thing I'd say the other is really just a more general version of that which is the Warren court saw as its mission to look out for the people who are not getting a fair shake in society and it started with African Americans in the Jim crow south but the Warren court view was a more universal one and extended to for example criminal defendants political dissidents religious minorities and eventually near the end of its time a little bit poor people and it's thought that's what the Supreme Court should be doing it should be sticking up to the people who are not getting a fair shake elsewhere just do you want to add to that my guess I would add that the Warren court also gave over time a sense of why we need to do for review why we need courts to enforce the constitution and that was something the framers themselves understood it was basically because we love democracy but we know democracy flawed and we know sometimes it could be flawed in serious ways two of the ways in which is most obvious that democracy will not work the way in which one might hope it does his first in its treatment of people who were seen as the other whether they be African Americans or women or gays or or any group at any moment time is seen as the outsider that majorities will tend not to give him a fair shake and you need courts with life tenure the step in those circumstances and ensure that the government in fact acts probably any other has to do with democracy part of it in the sense that one of the other temptations that majorities will have is to manipulate the political process in order to retain their power and they will pass laws about poll taxes and literacy tests and gerrymandering and so on that are designed to undermine the basic principles of democracy in order to ensure that they remain in power and their two one needs courts with judges little life tenure to be able to step in and say no we have a deeper commitment than that and there is sometimes a majorities can't do what they want those two factors the protection of those were vulnerable and the protection of democracy in the political sense were to the central features of the Warren court and I think they were completely right and those decisions have stood the test of time we now have the Chief Justice who thinks the court should remain above the political fray who says justices should just call balls and strikes Jeff had is that contrast with Chief Justice Earl Warren's view well I I think it doesn't mean anything to be perfectly honest it's utterly hypocritical the reality is that the major cases the Supreme Court has the ones that are most important most controversial aren't about balls and strikes they were about complex difficult challenging issues this is the notion of calling balls and strikes really has very little meaning we were talking about a case like brown V. board of education or a case like citizens United there is no balls and strikes those are very hard questions that require serious judgment and beyond that courts injustices do need a principled approach to the exercise of their very large power dinner given under the constitution and to pretend that all you're doing is calling balls and strikes is simply to purport to hide the reality of the judgments that you make it David the Warren court has been criticized as being too activists and changing the law rather than following it imposing its own vision on society how do you answer those criticisms to them in two ways first of all the Warren court was in its bone deeply democratic and here's what I mean by that some of the most important decisions of the Warren court where decisions that actually expanded democracy and needed help like the one person one vote decisions and we quote in the book from an interview or a warrant gave late in his career where he said you know if we have been able to the side of one person one vote decisions earlier brown against board of education would have been unnecessary because the democratic process would have solved the problem no I think that's a little bit naive but it reflected the attitude that pervaded the Warren court which is our primary commitment is to democracy and we are only going to step in and where we think there is some malfunction democracy and then we'll just try to fix the malfunction coming up on Bloomberg long more on the Warren court's landmark decisions I'm June Grasso.

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