William and Mary Law Review
The Warren Court's most important decisions-on school segregation, reapportionment, free speech, and criminal procedureare firmly entrenched in the law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a common law court. The decisions in Brown v. Board of Education,' Gideon v. Wainwright,2 Miranda v. Arizona,3 and even in the reapportionment cases all can be justified as common law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the common law, such as Cardozo's decision in MacPherson v. Buick Motor Co.4 In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a common law system: that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before.
David A. Strauss, "The Common Law Genius of the Warren Court," 49 William and Mary Law Review 845 (2007).