SUPREME COURT OPINIONS: The Warren Court (1953 - 1969)

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OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.
OOOORelevant links, where provided, are found at the bottom of the opinion pages, when possible, or on a separate links page.
1954 Brown v. Board of Education of Topeka, Kansas
Chief Justice Earl Warren
OOOHeld that racial segregation in public education, even in comparable facilities, violated the equal protection clause of the 14th Amendment to the Constitution, in effect, that "separate but equal" is unconstitutional. Brown held "separate" inherently unequal and specifically overruled Plessy v. Ferguson. The following year, Brown II established the framework for remedying segregation in education, though the process would take decades, and still falls short of completion.
1961 Mapp v. Ohio, 367 U.S. 643
J. Tom C. Clark, C.J. Warren, J. Frankfurter, J. Brennan, J. Whittaker
Concurrance: J. Hugo Black
Concurrance: J. William O. Douglas
Separate: J. Potter Stewart
Dissent: J. John Marshall Harlan
OOOMapp stems from the warrantless, and therefore illegal, search of Mapp's residence resulting in the discovery of lewd material, for possession of which she was prosecuted and found guilty. Although the primary question before the Court was the constitutionality of Ohio's law against possessing such materials, the majority chose to decide the case on a secondary issue: whether the exclusionary rule, which prevented the use a trial of evidence gained in violation of the 4th Amendment, and which applied to federal courts, should be applied to state courts. Just twelve years earlier, the Court had considered that question in Wolf v. Colorado, and decided that while the 4th Amendment applied to the states, the exclusionary rule did not. It was the Court's intention to revisit that decision.
OOOCiting the 1914 case, Weeks v. U.S., which had applied the exclusionary rule to federal courts, Clark matched the 4th Amendment's prohibition of illegal search and seizure with the 5th Amendments right against self- incrimination, writing: "If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution." It was Clark's opinion that if the 4th Amendment applied to the states, as Wolf said it did, then the exclusionary rule must also, and for the same reason as in federal courts — without the rule the right would be meaningless. That fact alone made it more than a judicial "remedy" and turned it into a constitutional principle; a critical difference, because while the court could impose constitutional principles on the states, it had no power to make what amounted to a mere "rule of evidence" for their courts.
OOOBlack drew the linkage between the 4th and 5th even more sharply. While the exclusionary rule was in one part remedy against the use of evidence improperly gained under the 4th; it was the 5th that gave it the stature of a constitutional principle, since illegally seized evidence was tantamount to a forced confession — a violation of the citizens right against self-incrimination. He also argued that a broad interpretation of constitutional protections of persons and property was the only way to preserve them. He finally pointed out that, from a practical aspect, the exclusionary rule was a clearer and more certain guideline to what could be used as evidence under questionable circumstances than the Court's prior "shocks the conscience" rule.
OOODouglas' opinion basically followed Clark's, though he seemed to be less concerned whether the exclusionary rule was remedy — though he found it superior to all others — or principle.
OOOStewart avoided the entire controversy and ruled on the original question, finding that Mapp's conviction for possession of lewd materials was an unconstitutional violation of her 1st Amendment rights as applied to the states by the due process clause of the 14th Amendment.
OOOIn dissent, Harlan first took the Court to task for ruling on a question that had only indirectly come before it, had not been briefed and scarcely argued, and at that in flagrant and destructive disrespect for the Court's own precedents to over-rule a decision made just twelve years before. Next he attacked the premise of the decision, reminding the Court that Wolf had not applied the specifics of the 4th Amendment to the states, but only its general underlying right of privacy, and therefore the Court could not apply a mere remedy — which Harlan considerd the exclusionary rule to be — for the violation of those specifics.
1962 Engel v. Vitale, 370 U.S. 421
Justice Hugo Black, C. J. Warren, J. Clark, J. Harlan, J. Brennan
Concurrence: Justice William O. Douglas
Dissent: Justice Potter Stewart
J.J. Frankfurter and White did not participate in the decision
OOOIn Engle the Court found that a state-composed prayer recited in public schools, even though it was non-deniminational, and even though no child was required to participate in it, was unquestionably a religious exercise and therefore a clear violation of the religious establishment clause of the 1st Amendment.
OOOIn writing the decision, Black first pointed out that no party in the case had denied that the prayer was religious; in fact, all had admitted it. He next pointed out that the fact that it was non-denominational and voluntary was irrelevant — the former didn't make it less religious, and the latter didn't make it less of an establishment. He wrote: "The Establishment Clause...does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." He finally noted that the separation of church and state was intended by the Founders to protect both.
OOOConcurring, Douglas went futher than Black on the question of voluntariness: "...no matter how briefly the prayer is said...the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution. It is said that the element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a "captive" audience." In what may be called a nod to reality, Douglas underscored the inherently coercive nature of even voluntary prayer.
OOOIn dissent, Stewart denied that prayer was an establishment, and asserted, as the schools had done, that this particular prayer, though religious, was only a valid expression of the nation's spiritual heritage. Further — in an attempt to turn the constitutional principle away from the establishment clause to the free exercise clause of the 1st Amendment — he argued that by holding the prayer unconstitutional, the Court had violated the rights of those children who wanted to pray.
1963 Gideon v. Wainwright, 372 U.S. 335
Justice Hugo Black
Separate: Justice William O. Douglas
Concurrence in Result: Justice Tom Clark
Concurrence: Justice John Marshall Harlan
OOOGideon extended the right to counsel in non-capital cases — incumbent on the federal government through the Sixth Amendment — to the states.
OOOIn writing for the Court, Black simply concluded that the "due process" required of the states by the Fourteenth Amendment had to include the Sixth Amendment's right to counsel. He wrote, "...reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth." Black's opinion reflected his own view that the 14th Amendment incorporated the entire Bill of Rights and applied it to the states.
OOOClark's concurrence rejected the distinction between capital cases, where counsel had previously been required, and non-capital cases, for which Gideon created that requirement: "I must conclude...that the Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of "liberty," just as for deprival of "life," and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved."
OOOHarlan, ever the conservative, made it quite clear that his concurrence was based on what he saw as the slow evolution of the Court toward the Gideon result. Moreover, he was careful to point out that: "When we hold a right or immunity, valid against the Federal Government, to be [essential to due process] and thus valid against the States, I do not read our past decisions to suggest that, by so holding, we automatically carry over an entire body of federal law and apply it in full sweep to the States...In what is done today, I do not understand the Court to...embrace the concept that the Fourteenth Amendment "incorporates" the Sixth Amendment as such."
OOOIn his very brief separate opinion, Douglas took square aim at the latter view of Harlan: "My Brother HARLAN is of the view that a guarantee of the Bill of Rights that is made applicable to the States by reason of the Fourteenth Amendment is a lesser version of that same guarantee as applied to the Federal Government...But that view has not prevailed, and rights protected against state invasion by the Due Process Clause of the Fourteenth Amendment are not watered-down versions of what the Bill of Rights guarantees."
1964 Malloy v. Hogan, 378 U.S. 1
Justice William Brennan, C.J. Warren, J. Black, J. Douglas, J. Goldberg
Dissent: J. John Marshall Harlan, J. Clark
Dissent: J. Byron White, J. Stewart
OOOMalloy applied the Fifth Amendment's right against self-incrimination to the states. The case arose out of the questioning of one Malloy — on probation for a gambling misdemeanor — regarding a former criminal associate during a broad investigation into gambling in Connecticut. While the investigation did not target Malloy, he refused to answer a number of questions on the grounds they might incriminate him. He was cited for contempt and jailed.
OOOWriting for the majority, Brennan argued that if the Due Process Clause of the 14th Amendment — the amendment which brought the states broadly within the ambit of the Constitution — prohibited self-accusations through coerced confessions based on the 5th Amendment — which the Court and previously and repeatedly held — then it also prohibited self-accusation through coerced testimony, pointing out that the choice between answering and incarceration for contempt was certainly a form of coercion.
OOOHarlan's dissent underscored a fundamental disagreement within the Court regarding the Bill of Rights — the first ten amendments — and the 14th Amendment. The latter, Harlan believed, did not impose the former on the states. Its first section, he argued, only imposed what it said it imposed: that states grant due process to their citizens and the equal protection of the laws. If, he went on, the Court was to find that the Constitution imposed a right against self-incrimination on the states it could not be because that right was part of the 5th Amendment — the 5th only applied to the federal government. Instead, it had to be because that right was a part of due process as imposed on the states by the 14th. Harlan did not deny that such a right might exist (though he did not feel the circumstances surrounding Malloy rose to the level of a denial of due process); he simply rejected the Court's reasons for applying it. In what seems a distinction without a difference, Harlan argued that the difference was real and mattered, since the Court's gradual imposition of the Bill of Rights on the states brought with it the entire body of federal rules and criminal procedure by which those rights were enforced; what he called a "compelled uniformity" which degraded federalism and ignored the differences between the federal and state governments. As elements of due process, a broader and looser concept, the states would still be allowed to create their own rules for procedure and enforcement.
OOOWhite's dissent addressed the issue of law and order. The Court's interpretation of the 5th Amendment, he wrote, gave the witness too much power. Witnesses simply could not decide for themselves what was incriminatory and what was not, picking which questions they would answer and which they wouldn't. There had, first of all, to be a discernable danger of prosecution, and that was for a judge to decide, not the witness. In White's opinion, Malloy had failed to show any such danger and so could not exercise the right. (Brennan had addressed this in the opinion, pointing out that an explanation of why testimony might be incriminating is itself incriminating, and that forcing a witness to justify the right is essentially to deny it.)


1964 Escobedo v. Illinois, 378 U.S. 478
Justice Arthur J. Goldberg, C. J. Warren, J. Black, J. Douglas, J. Brennan
Dissent: J. John Marshall Harlan
Dissent: J. Potter Stewart
Dissent: J. Byron R. White, J. Clark, J. Stewart
OOOIn Escobedo the Court ruled that the Sixth Amendment's right to counsel extended to persons held and questioned by police prior to either arraignment or indictment. In this case, Danny Escobedo was interrogated and eventually made incriminating statements after having been denied repeated requests for his lawyer, and after his lawyer had made repeated requests to consult with him. The Court ruled that, without the presence of counsel when counsel had been requested, statements made during questioning were inadmissible at trial. Escobedo opened the door to the Miranda decision two years later.
OOOIn writing for the Court, Goldberg traced what he believed was a trajectory of recent decisions pointing in the direction of attaching Sixth Amendment guarantees to police interrogations. He also made the point that would be made later in Miranda; that statements made during interrogation were just as critical, if not more so, to a defendant's case as anything said at trial, and so it was just as important that a suspect have access to counsel at the first stages of the legal process against him. That the initial questioning, prior to indictment or arraignment, i.e., before a formal accusation, was part of that process, Goldberg had no doubt: "We hold only that, when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer."
OOOBehind Goldberg's insistence on the right to counsel at interrogation lay another right, the Fifth Amendment's guarantee against self-incrimination. The purpose of counsel was to insure that one being questioned understood and exercised his rights, chief among them the Fifth's. This point would be made the backbone of Miranda.
OOOThe dissents also adumbrated Miranda. Both Stewart and White insisted that constitutional rights do not adhere to mere investigation, but only to "...formal, meaningful judicial proceedings...", by which Stewart meant after "...indictment, information, or arraignment..." at which time he believed "...adversary proceedings have commenced." The test of admissibility of statements was not whether the not-yet-accused had been allowed counsel or been informed of his rights — he hadn't any at that stage — but whether the statements had been voluntary, the fact of which no one, not even Escobedo, had challenged. The voluntariness test was perfectly adequate to prevent police "inquisitions", and no prior decision of the Court had ever challenged or added to it. Nor were any changes required by the Constitution. As White wrote, "Until now, there simply has been no right guaranteed by the Federal Constitution to be free from the use at trial of a voluntary admission made prior to indictment."
OOOStewart summed up his horror at the decision by saying, "I can only hope we have completely misunderstood what the Court has said." Any possible misunderstanding would be cleared up with Miranda.
1964 Heart of Atlanta Hotel Inc. v. United States, 379 U.S. 421
Justice Tom C. Clark, C.J. Warren, J. Harlan, J. Brennan, J Stewart, J. White
Concurrance: J. Hugo L. Black
Concurrance: J. William O. Douglas
Concurrance: J. Arthur J. Goldberg
OOOThe case arose as a challenge by the Heart of Atlanta Hotel, which in the course of its business refused accomodations to blacks, to the right of the federal government to end its discriminatory practices through the Civil Rights Act of 1964. Particularly, it challenged the idea that such a prohibition could be accomplished through Congress' powers under the Commerce Clause (Art. I, § 8, cl. 3) of the Constitution, on which the Civil Rights Act was based.
OOOWriting for the majority, Clark found that Congress did have such power under the Commerce Clause. While agreeing that commerce occuring within a single state was beyond Congress' power to regulate, the Heart of Atlanta's business included out-of-state guests — for whom it actively advertised. Its effect on commerce was the burden it, and businesses like it, placed on an entire class of individuals traveling interstate; an activity clearly falling within Congress' commerce power. To the objection that Congress was actually stretching its commerce power to right a moral, not an economic problem, Clark countered that Congress' motives were secondary to the fact that since Gibbons v. Ogden in 1824 Congress' power over interstate commerce was plenary.
OOOBlack's concurrence echoed Clark, but added two things. The first was Ollie's Barbeque, a second challenger to the Act which, though its clientele was almost exclusively local, Black found to be within the power of the Act because it purchased a substantial portion of its supplies — mostly beef — from outside of Georgia. Second, Black pointed out that along with the Commerce Clause, which allowed Congress to regulate interstate commerce, came the Necessary and Proper Clause (Art. I, § 8, cl. 18) which allowed Congress to regulate a purely single-state activity if it effected interstate commerce. Thus, direct ties to interstate commerce weren't necessary to bring a discriminating business within the requirements of the Act.
OOOConcurring, Douglas agreed with the judgment of the majority, but was dissatisfied with its reasoning. He argued that the Commerce Clause did, indeed, give Congress power to enforce the Act, pointing out that Congress had chosen that particular constitutional foundation to avoid the implications of the 1883 Civil Rights Cases in which the Court had denied Congress the right to enforce the "equal protection" clause of the 14th Amendment against private individuals and businesses, since the 14th Amendment applied only to the states, their actions and agents. Arguing that the Commerce Clause didn't cover enough, and would leave the door at least ajar to continuing discrimination, he urged a return to the 14th Amendment, reasoning that discrimination, even by private entities, did involve state action through the enforcement of trespass and other laws against blacks attempting to purchase goods, service and accomodations. In short, the states violated the equal protection clause of the 14th Amendment when they assisted private businesses in discrimination, and therefore left themselves open to Congressional regulation.
1965 Griswold v. Connecticut, 381 U.S. 489
Justice William O. Douglas
Concurrance: J. Arthur Goldberg, C.J. Warren, J. Brennan
Concurrance in Judgment: J. John Marshall Harlan
Concurrance in Judgment: J. Byron White
Dissent: J. Hugo Black, J. Stewart
Dissent: J. Potter Stewart, J. Black
OOOGriswold held unconstitutional a Connecticut law, intended to prevent adultery and promiscuity, which banned the the use of contraceptives, and which also made illegal the aiding or abeting such use. The appellant, Griswold, was Executive Director of the Planned Parenthood League of Connecticut, and was arrested under the law for providing contraception to a married client. He challenged his conviction as unconstitutional under the 14th Amendment.
OOOWrining for the Court, Douglas focused on the rights of the married couple, not those of Griswold: theirs had been the crime that Griswold had only abetted. Citing precedent, he showed that the Court had frequently found rights which, though not specifically enumerated in the Constitution, nonetheless logically flowed from them, and which gave them meaning. These existed as a sort of supertext behind the specifics of the Bill of Rights. Douglas called them "penumbras" and wrote, "...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Among these unenumerated rights, derived mainly from the 1st Amendment, but also from the 3rd, 4th and 5th, was the right to privacy. Douglas backed this right with the 9th Amendment's guarantee of unenumerated rights, and applied it to the states through the fourteenth. Finally, within this protected "zone of privacy" Douglas squarely placed marriage, concluding that the Connecticut statute, "...cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."
OOOConcurring, Goldberg relied even more heavily on the 9th: "The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments." Further, like Douglas, Goldberg applied the "substantive due process" theory to the 14th Amendment: certain rights — ones not always clearly enumerated — generally were so fundamental, or had through time become so fundamental, that they required judicial recognition and application. Goldberg found privacy to be among such rights, and he concluded that Connecticut's purpose in having the law to be far out-weighed by its intrusion on the privacy rights of married couples.
OOOHarlan concurred only in the result, not in the reasoning of the majority. Unlike many of the other justices who wrestled with the extent to which the Due Process Clause of the 14th Amendment actually applied the Bill of Rights to the states, Harlan argued that Due Process was more than a conduit for the first ten amendments, but stood on its own, founded on "...basic values 'implicit in the concept of ordered liberty...'" He wrote, "While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom." He concluded that the statute did indeed violate basic values.
OOOWhite, too, concurred in the result but not the reasoning. Avoiding the larger issue of privacy, White focused on precedents establishing rights surrounding marriage and family, found that those rights were protected by the 14th Amendment, and concluded that the Connecticut statute served no rational purpose that justified their infringment.
OOODissenting, Black found the statute as odious as the majority, but stopped there. Interestingly, Black believed the 14th Amendment applied the entire Bill of Rights to the states; but he was a constitutional literalist, and simply found no "right to privacy" to apply to the case — nor did he find any other enumerated right violated. Thus, the question of the statute's reasonableness or rationality was irrelevant — the Court had no authority to make that sort of decision. That was for the people of Connecticut and its legislature to decide. Black further accused the Court — specifically Goldberg and "substantive due process" — of doing in the realm of personal rights what it had done for economic rights culminating in the long-rejected Lochner decision: creating rights where none existed based, as far as Black was concerned, on a "natural law" idea of what the Court thought should be, instead of rights actually found in the Constitution.
OOOStewart's dissent essentially echoed Black's: no constitutional rights were violated by the Connecticut statute, and the Court had no standing to annul the law beyond that. Goldberg's use of the 9th Amendment was flawed because the amendment's purpose was to limit the power of the federal government, not the states. He also attacked both Goldberg's "substantive" due process and Harlan's "ordered liberty" philosophies as too broad, countering with his own "procedural" due process stance which treated as unconstititional only irregularities at trial and laws which were unconstitutionally vague. Unlike Black, however, Stewart remained skeptical of the extent to which the 14th Amendment applied the Bill of Rights to the state, and it is interesting to note how two justices, otherwise opposed, find themselves on the same side on such a seminal and philosophically rich case.
1966 Miranda v. Arizona, 384 U.S. 436
Chief Justice Earl Warren, J. Black, J. Douglas, J. Brennan, J. Fortas
Concurrence and Dissent: J. Tom C. Clark
Dissent: J. John Marshall Harlan, J. Stewart, J. White
Dissent: J. Byron R. White, J. Harlan, J. Stewart
OOOIn Miranda the Court specifically brought the police interrogation room within the Fifth Amendment's right against self-incrimination — not done since the Bram decision in 1897and gave rise to the so-called "Miranda" rights.
OOOThe four cases falling under Miranda all involved confessions made during police interrogation. The question for the Court was whether the suspects in those cases made those statements voluntarily and in full knowledge of their Fifth Amendment privilege against self-incrimination. Warren concluded that while "...we might not find the defendants' statements to have been involuntary in traditional terms...", the circumstances under which they were made — incommunicado, custodial police interrogation, and the atmosphere of intimidation that went with it — made them presumptively involuntary. He wrote: "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning."
OOOThe protective device mandated by the decision was to guarantee that suspects were first fully informed of their rights — to remain silent and to counsel — before any questioning began, and that questioning should cease should the suspect choose to exercise those rights. Thus the Miranda decision created a "bright line" rule based on a pre-interrogation "reading of rights" to suspects without which no subsequent statement could be considered voluntary.
OOOAs for the connection between self-incrimination and interrogation, Warren answered the charge from dissent that the Fifth Amendment only applied to testimony at trial, not to interrogation, by pointing out that statements brought to trial from interrogation were as incriminating as anything said in open court, and in the case of confessions, more so. The guarantee was meaningless if it did not apply to interrogation: "Without the protections flowing from adequate warnings and the rights of counsel, all the careful safeguards erected around the giving of testimony...would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police..."
OOOThe dissents fell along three lines. First was a rejection of the idea that the Fifth Amendment privilege against self-incrimination, or the Sixth Amendment's right to counsel, actually applied to interrogation. Second, and relatedly, was the urge to reject the potentially disastrous Miranda rule, and return to the "totality of circumstances" rule which tested voluntariness through individual circumstances on a case by case basis — a rule that fell within the more flexible due process clause. Finally, and probably underlying all of them, was a genuine fear that the right to remain silent and the right to counsel, if exercised during interrogation, would make interrogation impossible and seriously compromise the criminal justice system. Harlan and White were particularly vociferous on this point. The latter wrote: "The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is "to respect the inviolability of the human personality" ...More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus, the values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal weight....Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values."
OOOWhile it is probably safe to say the sky did not fall, Miranda remains controversial.

1967 Loving v. Virginia, 388 U.S. 1
Chief Justice Earl Warren, J. Black, J. Douglas, J. Clark, J. Harlan, J. Brennan, J. White, J. Fortas
Concurrence: Justice Potter Stewart
OOOThe decision stems from the marriage of two Virginia residents, Mildred Jeter, a black woman, and Richard Loving, a white man, in the District of Columbia — where their marriage was legal — and their return to Virginia — where it was not. They were prosecuted under Virginia's anti-miscegenation law which prohibited marriage between whites and members of another race. The trial judge sentenced them to a year in prison, but suspended the sentence provided the couple leave the state for 25 years. Their appeals eventually came before the Court.
OOOThe question came to revolve around the 14th Amendment and its Equal Protection clause. Virginia argued that since the law, and the penalty, applied equally to both whites and blacks there was no equal protection problem. The Court disagreed. Writing for the majority, Chief Justice Warren pointed out that where the state's position might otherwise be valid, the issue of distinctions drawn on the basis of race was too weighty a matter to let pass on the basis of equal application: "In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race."Further on in the decision, he went on to say: "At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny,"...and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense."
OOOFor the Court, Virginia's stated purposes for the statute — ""to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride,"" — clearly fell short of adequate justification, especially as the statute only prohibited intermarriage with whites, which the Court correctly identified as "...an endorsement of the doctrine of White Supremacy."
OOOFinally, calling marriage "...one of the "basic civil rights of man...", Warren concluded that the Virginia statute also violated the couples' due process rights by denying them a fundamental liberty without due process of law.

1967 Katz v. United States, 389 U.S. 347
Justice Potter Stewart, Chief Justice Earl Warren, J. White, J. Fortas
Concurrence: Justice William O. Douglas, J. Brennan
Concurrence: Justice John Marshall Harlan
Concurrence: Justice Byron White
Dissent: Justice Hugo Black
OOOIn Katz, the Court broadened the ambit of the 4th Amendment's prohibition against illegal searches and seizures. The case came as a challege by Katz to the use of evidence in the form of a conversation obtained with a warrentless wiretap on a public phone booth in which he was wont to transmit gambling information. Katz claimed that such illegally obtained evidence could not be used against him under the exclusionary rule.
OOOIn argument, Katz had placed much emphasis on the idea of a phone booth being a "constitutionally protected area", while the government had argued strenuously that no physical penetration of that area had taken place. (The wiretap had been placed on the outside of the booth.) Both these points had been critical to previous Court decisions involving the use of conversations surreptitiously recorded by the police. At the very beginning of his opinion however, Stewart explicitly and definitively swept both arguments aside. Fourth Amendment rights, he wrote, attach to persons, not to places. The question was not whether a person is in some constitutionally protected area — no area provided automatic constitutional immunity — but whether, no matter where someone is, he or she has a reasonable expectation of privacy. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection...But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Stewart concluded that even in a public phone booth, after one closes the door, there is a reasonable expectation that the conversation will remain private.
OOOThe government also argued that the surveillance had been so careful and narrow that it would have easily met the standards for obtaining a warrant, and that the evidence obtained should be admissible for that reason alone. Stewart's answered that if a warrant had been so easy to get, they should have gotten one. Citing past cases, he wrote: "Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause, . . . for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." . . . "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,". . . and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. . . " In short, it was not sufficient for the police to police themselves.
OOODouglas' concurrence is a response to White's. Otherwise agreeing with the Court, White sought to carve out an exception on wiretaps for the President and Attorney General for purposes of national security. Douglas objected, pointing out that neither man was a magistrate, nor were they "detached", "disinterested", or "neutral". Moreover, the Constitution, and more specifically the 4th Amendment, did not make distinctions among crimes: ". . . spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner. . . "
OOOHarlan's concurrence was more narrow than the Court's. Citing its "reasonable expectation of privacy", he reattaches "reasonable" to place, thus drawing a line back to previous interpretations of 4th Amendment protections. Moreover, he signals a willingness to allow more exceptions to the exclusionary rule than the Court, itself, had cited in the opinion.
OOOBlack's dissent is a model of conservatism literallism. He points out that the plain words of the Amendment protect "persons, houses, papers, and effects, against unreasonable searches and seizures" — ". . . tangible things with size, form, and weight, things capable of being searched, seized, or both." Moreover, the Amendment requires that the thing to be searched or seized be described. Black argues that conversations are not tangible, cannot be searched or seized in any constitutionally coherent way, and cannot be described in advance of their happening. Hence, conversations have no 4th Amendment protections. Nor can the Court rely on some constitutional right to privacy because no such right exists. He wrote: "Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to "keep the Constitution up to date" or "to bring it into harmony with the times." It was never meant that this Court have such power, which, in effect, would make us a continuously functioning constitutional convention."
1969 Brandenburg v. Ohio
Per Curiam
OOOEstablished that even speech advocating violence, so long as it is not "directed to inciting or producing imminent lawless action and is likely to incite or produce such action", is constitutionally protected.