Weaving public law’s fetish with explaining post-1937 constitutional development into this
account, we see little examination of the ideas of change and history that individual judges and other
political actors have about “change” and “history” themselves, either in court decisions, congressional
legislation, or public opinion. Revisionists and New Deal apologists alike, instead focus on how we
should understand constitutional development in the twentieth century as one institutional order (the post-
1937 courts) reacting to an older order (the Lochner-style economic substantive due process of pre-1937
courts), with revisionists showing that certain cases showing a deference to majorities on economic issues
actually occurred before 1937 and apologists showing how, not withstanding, post-1937 courts as
institutions developed, for example, bi-furcated judicial review as an institutional mechanism of
legitimacy when they too engaged in substantive issues. What is lacking , then, in APD more generally,
and public law scholarship specifically, are sustained analyses examining the ideas or justifications by
individuals on courts, in legislatures, or in public opinion, for the political and judicial outcomes they
desire. Courts as “institutions” have been problematized as meaningful variables, and the literature
concerning their development picked over, but their ideas of their own role in history have not.
beyond meta-critiques of literature to the actual expositions of history and change by political actors
themselves might actually give us a more accurate account of how change and development affect politics
and the institutions they motivate.
I propose to attempt this synthesis of sorts by examining the development of habeas corpus
jurisprudence during the Warren Court, which is usually seen as the institutional apotheosis of post-1937
jurisprudence. The choice of habeas corpus is not only important because of its immediate salience today
(for it has always been important) but because, since Reconstruction, seismic-like changes in habeas
corpus did not occur until the Warren Court sought to enforce its larger incorporation jurisprudence with
7
One exception is Randall Kennedy, who argues that the Warren Court’s decision in Brown neglected to inform or
“teach” the public about its own complicity in fostering ascriptive racism. Randall Kennedy, “The Supreme Court
as Teacher,” in, Wilson and Masugi, eds., The Supreme Court and American Constitutionalism (Lanham: Rowman
& Littlefield, 1998) 17-26.
4
Convention