Earl Warren, who served as Chief Justice between 1953 and 1969, led the Supreme Court in such brazen assaults on the balance of powers that some of his early biographers called admiring attention to his "Viking" heritage or Viking genes.  Earl's Viking style emerged long before he got on the Supreme Court [1].

In 1939, Warren took office as Attorney General of California.  He had run as a tough, law-and-order guy.  His first high-profile crime busting crusade was an attack on illegal gambling.  Warren was a man who knew how to get the job done.  Before long, most of the state's dog tracks and slot machine parlors were out of business.

However, Earl still saw a big problem; there was a lot of legal gambling going on.  Four casino ships were operating beyond the three-mile limit off LA and Long Beach.  They brought customers out in water taxis.  A California appeals court had ruled they were outside state waters, so they were beyond Earl's reach.  The biggest and most luxurious, the "Rex," was owned by a man named Tony Cornero.

Warren sent a message warning Cornero to get his business further away from California, otherwise he would lose it.  In view of the state appeals court ruling, Tony declined.  Warren then placed an illegal tap on Tony's home phone, but the tap didn't get anything useful.  So Earl resorted to a Viking technique.  He assembled a fleet of state owned boats and rented water taxis; then his men attacked all four ships.  Tony Cornero, on the Rex, held Warren's men off for a while with a high pressure fire hose; he called them "pirates" [2].

In this episode, the future Chief Justice placed an illegal wiretap.  He also attacked and vandalized businesses that the only relevant court ruling had said were legal.  However, the California Supreme Court then decided to cover his backside.  Months after the Viking attack, it reversed the earlier appeals court ruling.  The court said that the gambling ships were not really outside California waters.  They were more than three miles from shore.  But the three-mile limit had to be measured from an imaginary line along the outside edge of Santa Monica Bay.  About fifteen years later, in an offshore oil case, the Warren Court quietly reversed that ruling [3].

Being a law-and-order guy didn't have much appeal in liberal Washington in the 1960's.  Protecting criminals was even more fashionable on the left than it is now.  Earl Warren was at heart a politician; so he wanted to be in harmony with the current political climate.  Besides, most of his colleagues on the Supreme Court were liberals; they would only follow him to the left.  If he wanted to be their leader, that was the direction in which he had to go.  So Earl led the Court into the business of protecting criminals.

Our founders had made it perfectly clear that the Bill of Rights did not apply to the states.  It was intended to protect the states and the people from excesses by the federal government.  However, it was the perfect vehicle for the Court to use to protect criminals from us.  So, almost a century after we adopted the Fourteenth Amendment, the Court suddenly discovered that the authors of the Amendment intended it to "incorporate" certain parts of the Bill of Rights against the states.  From time to time, the Court would let us know exactly which parts.  Our judicial branch of government would not have found it convenient for the Fourteenth Amendment to "incorporate" all of the Bill of Rights against the states [4].

The justices used their clever new story line dozens of times in the early sixties.  Between 1960 and 1965 the Court heard 75 cases in which criminals claimed that "We the People" had violated their rights.  It ruled in favor of the crooks 64 of those 75 times.  Let's consider a few examples.  In 1961, in Mapp v. Ohio, the Warren Court rewrote the 170-year-old Fourth Amendment.  When they started, it said that the federal government was not allowed to conduct "unreasonable searches and seizures" of our "persons, houses, papers, and effects."  When they were finished, it contained a brand-new "exclusionary rule" for state criminal trials.  No state was allowed to use "tainted" evidence in court.  Tainted evidence turned out to be any evidence that a creative defense lawyer could convince a willing judge was obtained in an "unreasonable" search [5].

Prior to Mapp v. Ohio, the Supreme Court recognized the obvious; no part of the Constitution mandated the exclusionary rule, especially in state trials; a few years later, the same Court again admitted this.  In Linkletter v. Walker (1965), it ordered that the benefits of the rule would not be available to persons convicted in state trials prior to the Mapp decision.  It admitted, in effect, that Mapp v. Ohio was judicial legislation [6].

The Court said

(Our) purpose (in Mapp v. Ohio) was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.

PRONOUNCED JUDICIAL FANTASIES

A year later the Court rewrote the Fifth Amendment which says: "No person . . . shall be compelled . . . to be a witness against himself."  Our founders remembered that English kings routinely used torture to obtain confessions.  So they wrote the Fifth Amendment to make sure the new federal government didn't try this kind of stuff.   In Miranda v. Arizona (1966), the Warren Court proclaimed that the Amendment really means that policemen in the states must take affirmative steps to protect criminals from the consequences of their own stupidity.

Back in the early 1960's, somebody raped a woman in Phoenix and stole her car.  About two weeks later, the police found it parked in front of Ernesto Miranda's home.  Ernesto fit the description of the rapist; he also had a prior arrest for rape and half a dozen arrests for peeking in ladies' windows.  So they put him in a lineup and the victim picked him out.

Ernesto knew the cops had him dead to rights.  So, after an hour or two, he confessed.  There was no coercion; but the Court opined that he had not signed the confession "voluntarily, knowingly, or intelligently."  Nobody claimed that the police had tortured or beaten him.  Ernesto had just done something dumb.  The Warren Court said that was enough to violate its brand new revised Fifth Amendment.  The Court opined [7]:

the potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies, . . . to be sure, the records do not evince overt physical coercion or patent psychological ploys.  The fact remains (the police did not) undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.

NOTES & CITATIONS

1.  The word Viking comes from a Norse word vikingr which means pirate.   Earl's mother was born in Sweden and his father in Norway; so his roots were in the Viking homeland.  See the companion article, Viking Jurisprudence.

2.  This episode is more fully described in Cray, pages 100-102.

3.  Cray, Page 463.

4.  See the online essay Unnatural Selection.

5.  The statistics are from Levinson 1994, pages 157-8.

6.  Mapp V. Ohio can be found on the Internet.  See also the 1949 Supreme Court opinion in Wolf v. Colorado.   A transcript of Linkletter v. Walker can also be found on the Internet.  You probably recall that the Constitution emphatically denied "legislative Powers" to our judicial branch of government.  See, for example, Article I, Section 1.

7.  The Miranda opinion can be found on the Internet at http://www.tourolaw.edu/patch/Miranda/.  It's also discussed in Pollack, pages 267-268, and Cray, pages 457-61.

8.  See "Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement," by Paul G. Cassell and Richard Fowles.  As of this writing, the article could be found on the Internet at http://www.law.utah.edu/faculty/websites/cassellp/STANFIN.html.  We provide estimates, in Judicial Activism Causes Crime for the number of extra crimes caused by fraudulent Warren Court constitutional interpretations.