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Supreme Court of the ’60s lent ‘legal force to the dissatisfaction with bigotry’

11/04/15 - BOSTON, MA. - Barney Frank speaks after Nancy Gertner during a lecture on the 1960's US Supreme Court in West Village F on Oct. 4, 2015. Photo by Adam Glanzman/Northeastern University

Former U.S. Rep. Barney Frank praised the so-called Warren Court on Wednesday night at Northeastern University, saying that its panoply of landmark decisions in the 1950s and ’60s lent “legal force to the repudiation of bigotry.”

Frank was referring to the U.S. Supreme Court between 1953 and 1969, when Earl Warren served as chief justice. Under his leadership, the court banned the segregation of public schools; ruled that the Constitution protects a general right to privacy; and declared that indi­gent crim­inal defen­dants have a con­sti­tu­tional right to a court-​​appointed lawyer.

“The Supreme Court under Warren brought about enormous transformation,” said Frank, who represented Massachusetts’ 4th district from 1981 to 2013. “It gave force to the dissatisfaction with bigotry,” he said, “yet it was also harshly criticized at the time.”

Frank discussed the Warren Court in 20 West Village F, delivering sharp-witted remarks to approximately 200 students, faculty, and community members. He and former federal judge Nancy Gertner were the latest guest speakers in this fall’s Open Classroom series, which is titled “1965: A 50-Year Retrospective on the 1960s and Lessons for Today.” The course, which is free and open to the public, is being led by Michael Dukakis, Distinguished Professor of Political Science, and Barry Bluestone, the founding dean of the School of Public Policy and Urban Affairs.

From Woodstock and the women’s movement to the space race and the war on poverty, many iconic moments from the tumultuous decade have already been examined. On Wednesday, the discussion centered on the ins and outs of the U.S. Supreme Court in the era known as the “sixties.”

‘A progressive judge’

Gertner argued that the Warren Court’s 1954 ruling in Brown v. Board of Education forever transformed the legal landscape, setting the stage for its progressive rulings on privacy, access to justice, and freedom of expression.

“Once you have a framework for rights, then people of different stripes could claim rights and mobilize around them,” said Gertner, who cut her teeth as a civil rights lawyer before being appointed to the federal bench by President Bill Clinton in 1994. “The court’s docket changed because of the door it had opened, creating leftist lawyers who would use the courts to promote a social agenda. From 1954 to this day, it created lawyers who had never existed before.”

Gertner is a prime example, presiding over several notable cases before retiring from the bench in 2011. In one case, she ordered the federal government to pay more than $100 million for withholding evidence that could have exculpated four men who had been wrongfully convicted of murder. “I didn’t have the guts to disobey the law or become a conscientious objector,” she said, “so I channeled my activism by becoming an activist lawyer and a progressive judge.”

‘The most activist court since the New Deal’

Frank, Congress’ first openly gay lawmaker, noted that the Supreme Court never would have voted to legalize same-sex marriage had it not been for Brown v. Board of Education. But he decried the notion that the Warren Court had been engaged in judicial activism—that is, when judges substitute their own political opinions for the applicable law.

In his view, the Roberts Court is guilty of judicial activism. Pointing to its ruling on the Voting Rights Act, he said, “We have been living with the most activist court since the New Deal. This current group of conservatives has done more to invalidate public policy solutions voted on by elected officials than the Warren Court ever thought of doing.”

Later on, Frank explained that four of the Supreme Court’s nine justices will be well into their 80s by the time the next two presidential terms have concluded. “Next year’s presidential election will be extraordinary,” he said. “Whomever is elected is likely to appoint new justices and reshape the court.”

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