JUDGING CRIMES

The Warren Court was such a flashpoint during the 1960s that it's easy to fall into the mental habit of thinking of its members as '60s sort of guys.  But when you consider they were actually pretty old by then, you might need to revise your mental image a little bit.  How about Dave Brubeck horn rims and black-and-white suits?

Well, push it back a little more.  Back to, say, Queen Victoria.   1961's Warren Court was composed of people who were born during the presidencies of Chester Arthur, Grover Cleveland and Benjamin Harrison.  The youngest member was whiz-kid Potter Stewart, and he was born before Wilson ran for reelection (against a former Supreme Court justice).  When little Potter toddled, Wilhelm was still Kaiser.

Some historians like to talk about the "long nineteenth century", stretching from the beginning of the Napoleonic Wars to the end of World War I.   By that measure, all the Warren Court justices of 1961 were born in the nineteenth century.  The  Stutz Bearcat was the dream car of their youth ... or early middle age.

The age of the Warren Court justices of 1961 directly affected their jurisprudence in two pretty obvious ways.  The first, already mentioned a few times, is that they belonged to the last generations before the advent of pop psychology.  Freud and Jung were new characters on the scene as they were growing up, and B.F. Skinner was a phenomenon of their declining years.

You can learn a foreign language in middle age but it will never become a part of you.  It will always remain an exercise that you perform.  The justices of the Warren Court understood psychology in that clumsy way.  It was something they tried to teach themselves as adults.   And that explains a good deal of what they did to American society.

The other way in which the justices' age determined the course of their jurisprudence was in their conception of the police.   It's easy to forget that police forces were a 19th century innovation.   Most American towns acquired their first municipal police forces only during the era when our Warren Court justices were being born.  But those first professional forces were were professional only in the sense that the cops got paid.  The idea that law enforcement was more than a patronage job was slow to develop, and the consequences were dreadful.

In 1932, Dearborn police killed four striking Ford workers.  In the same year, the Wickersham Commission published its findings on official lawlessness, publicizing the "third degree" that would become so familiar in countless Warner Bros. films.   Five years later, Chicago police massacred strikers at Republic Steel.  In California during the years that Earl Warren served as Alameda County District Attorney, cops served as management's hired thugs in the Imperial Valley and on the Monterey Peninsula.  As for the LAPD of the era, well, now you know the source of James Ellroy's novels.

It wasn't at all irrational for the Warren Court justices of the 1960s to think of cops in terms from the 1930s.   It might even have been accurate.  But one of the effects of their jurisprudence is to make that way of looking at police officers - the appalled, slightly frightened and covertly sneering attitude of a raccoon-coated university man - a seemingly-permanent part of American judicial culture, impervious to any real-world change in the way cops are hired, trained and supervised.