Justice-as-Fairness as Judicial Guiding Principle: Remembering John Rawls and the Warren Court

The decade-and-a-half period when Earl Warren served as the fourteenth Chief Justice (1953–1969) was marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association, and religion, voting rights, and more. These decisions led to positive, fundamental changes in the lives of millions of less advantaged Americans who had been historically disfavored because of their race, nationality, gender, socioeconomic class, or political views. The legacy of the Warren Court is one of an institution committed to “a dedication in the law to the timeless ideals of ‘human dignity, individual rights, and fair play, and [a] recognition that the best of us have no more rights or freedoms than the worst of us.’” For its efforts, the Warren Court is considered by some to be the greatest high court in the nation’s history. At the same time, many Warren Court decisions were hugely controversial, upsetting the settled expectations of those who benefited from long-entrenched governmental biases and practices. The ubiquitous “Impeach Earl Warren” billboards seen throughout the countryside during the late 1950s and the 1960s reflected the underlying efforts of laissez-faire conservatives to overturn aspects of the New Deal, which began a quarter century earlier. The intensity of the political opposition to the Court’s newfound commitment to fairness and equality was matched only by the infamous pre-Civil War Dred Scott case a full century earlier. To this day and through the decades, conservative jurists, academics, and others have bemoaned the Warren Court’s “lawlessness” and lack of principle. Ultimately, such criticisms proved wanting. By demonstrating a consistent concern for the plight of less advantaged, less favored members of American society, the Warren Court was, to the contrary, highly principled in exercising its full powers to achieve fairness and equal protection for all, regardless of a person’s status in society. We should demand nothing less from government, which exists, after all, to serve the people—all the people. The Warren Court’s practice of using its power of equity to achieve fair outcomes closely resembles, at its core, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of Justice. At its simplest, Rawls suggested that in order to achieve a just (or “fair”) society, decision-makers should operate from the original position of equality behind a so-called veil of ignorance, where they have no idea of their own personal circumstances, in order to promote a just society. If the individual decision-maker herself knows she might be among the persons most negatively affected by a proposed or possible decision, she is much more likely—operating in her own self-interest—to “hedge her bets” and make a decision that is fair to all. By applying this approach, the interests of less advantaged, more vulnerable members of society are adequately considered, promoting the justice-as-fairness principle of equal opportunity for all, including the least privileged. Of course, Earl Warren and the Warren Court did not adopt justice-as-fairness reasoning per se, since Rawls had not yet published A Theory of Justice by the time Warren left the Court in 1969. Nonetheless, principles of fairness and equal opportunity underlie both the Warren Court’s jurisprudence and Rawls’s theory of justice. Not incidentally, the same core principles guide notions of public virtue, a concept vital to the founding generation, and the Golden Rule’s ancient mandate, long recognized by all of the world’s major religious and moral authorities as to “do unto others as you would have them do unto you.” This article proposes that judicial adherence to the core principles expressed in these various sources would result in a markedly more just society—which should be the ultimate goal for any legitimate system of justice