Podcast Summary: Advisory Opinions

Episode: The Conservative Warren Court of Today
Host: Sarah Isgur (The Dispatch)
Guest: Professor Richard Ray (Harvard Law School)
Date: January 13, 2026

Episode Overview

This episode features a deep, critical, and historically informed discussion on the Supreme Court’s current conservative supermajority. Professor Richard Ray joins Sarah Isgur to make the provocative case that today's Court bears a strong methodological resemblance to the transformational, liberal Warren Court of the 1950s-60s. They trace the history and shifts in legal philosophies across generations, examining key doctrines such as originalism, textualism, deference to agencies, and more. The discussion is honest, nuanced, and challenges listeners to think seriously about consistency, discomfort, and what judicial power means—regardless of which ideology is in charge.

Main Theme:

Is Today’s Supreme Court a “Conservative Warren Court”?

• Ray argues that, just as the Warren Court used its power to advance a discretionary liberal vision, today’s conservative majority is acting with similar discretion, but in pursuit of conservative ends. This raises challenging questions about methodological consistency, judicial power, and what it means to both criticize and defend the High Court.

Key Discussion Points & Insights

1. Introducing Professor Richard Ray and His Thesis [03:02]

• Ray’s Harvard Law Review foreword frames the current Supreme Court as a "conservative Warren Court."
• Ray describes his intellectual evolution from formalist to pluralist, believing the legal system benefits from a diversity of approaches.
  • Quote: “My own views...are still pretty far on the formalist side, I no longer think...there should be a whole legal system of just formalists...A whole legal system requires a diversity of approaches.” [03:58]

2. Historical Comparison: From the Warren Court to Today [05:40]

• The Warren Court (1950s-60s): Strong liberal majority, enthusiastic about “discretionary legal principles,” relatively unconstrained by precedent, text, or history.
• Conservatives of that era responded by championing formalism to constrain the Court.
• Over decades, conservatives gained power—a reversal of roles.
• Quote: "Conservatives are formalists in dissent, and liberals are discretionary in the majority...Now, those incentives are in the hands of the conservative supermajority of the Supreme Court." [07:15]

3. The ‘Swing Justice’ Era [12:25]

• Ray clerked for Justice Kennedy (“epitomized this swing justice era”).
• Swing justices (O’Connor, Kennedy) made the Court less partisan and more unpredictable.
• Quote: “There was a degree of unpredictability...When you came to the Supreme Court to argue, you argued about things that were not just partisan politics.” [13:21]
• Acknowledgement that Court is now more predictable with fewer true swing votes.

4. Key Legal Concepts Where Left and Right Have Flipped

a. Stare Decisis [15:25]

• Warren Court frequently overruled precedent; conservatives were pro-stare decisis.
• Roe and Casey flipped the script; now, liberals emphasize constraint via stare decisis.
• Quote: "The real pivot...occurred...around the time of Casey, where the perceived need to preserve Roe based on stare decisis kind of flipped the ideological orientation..." [15:49]

b. Originalism [16:54]

• Grew on the right after Brown v. Board and Roe v. Wade as a constraining tool.
• Today, some conservatives move away from pure originalism (e.g., common good constitutionalism echoes Dworkin).
• Quote: “Dworkinian, which is thought to be highly anti original and anti conservative in the 80s. Now it's associated with common good constitutionalism.” [10:47]

c. Textualism [17:58]

• Once the conservative gold standard, but recent conservative Court decisions (e.g. Major Questions Doctrine) deviate.
• Liberals like Kagan now sometimes charge that conservatives are abandoning textualism.
  • Memorable moment: “Sometimes you run into a get out of text free card like the Major Questions doctrine.” – Sarah Isgur, [18:38]

d. Deference/Judicial Minimalism [21:13]

• Liberal Justices (e.g., Frankfurter) once promoted deference to political branches; post-Nixon conservatives revived deference to favor deregulatory policies.
• Now, conservatives, in power, have less incentive to defer, while liberals sometimes defend judicial constraint.

e. Substantive Due Process [28:55]

• Lochner era’s unenumerated economic rights became anathema post-FDR.
• Warren Court revived substantive due process for social rights.
• Modern conservative Court beginning (cautiously) to identify unenumerated rights that favor conservative causes.

f. Use of Foreign Practice [31:29]

• Warren-Kennedy Courts cited foreign law for liberal outcomes (e.g., criminal justice).
• Recent cases (e.g., Scarmetti) see conservatives using foreign/European practice to validate restrictions on trans medical care—roles reversed.

g. Legislative History vs. Originalism [33:57]

• Tension: Conservatives reject legislative history in statutory interpretation but rely on historical material for originalist arguments (“Scalia’s cocktail party”).
• Criticism that some “historical” analysis is effectively cherry-picking.

h. Standing [35:44]

• Warren Court expanded standing for access to courts; conservatives later limited it.
• Now, with conservative dominance, there is subtle expansion/less restriction of standing to reach merits with conservative outcomes.

5. Representation Reinforcement [41:12]

• The “representation reinforcement” theory (John Hart Ely, Carolene Products): Courts should protect minority/discrete groups blocked in political process.
• Ray argues conservatives now use this rationale to justify decisions favoring discrete, insular groups (e.g. religious minorities, SFFA v. Harvard for Asian Americans).
  • Quote: “There are lots of groups in society...that are discrete insular minorities. Religious groups are examples of that…” [43:11]
• Ray: If one values Warren Court decisions on this premise, consistency demands grappling with their use today for different groups.

Notable Quotes & Memorable Moments

• On common good constitutionalism:
  Richard Ray: “Adrian Vermeule's work...is explicitly, emphatically Dworkinian...a leading avant garde conservative intellectual is saying actually Dworkin...was basically right, explicitly on the nature of jurisprudence.” [10:47]

• On vibes vs. reality in precedent overturning:
  Sarah Isgur: “The vibes often don't match the reality. The Warren Court...was [overturning] over three precedents a year...the rate for the Roberts court is the lowest it’s ever been...” [15:59]

• On judicial unpredictability and nonpartisanship:
  Richard Ray: “There was something good there as well...the benefits of having this unpredictability and relative nonpartisanship...” [14:20]

• On the dilemma of embracing Warren Court methods:
  Sarah Isgur: “If you really want to...avoid hypocrisy...you need to love the Warren Court representation reinforcement, as you love this [conservative] Warren Court’s representation reinforcement...” [41:47]

Noteworthy Segment Timestamps

• 03:00–05:40: Ray explains his thesis and personal jurisprudential stance
• 05:40–11:30: Detailed Warren Court to present history, comparison of incentives
• 12:25–15:17: The ‘Swing Justice’ era, unpredictability, Kennedy reflection
• 15:25–21:13: Deep dive into stare decisis, originalism, textualism, and deference
• 21:13–24:23: Deference to administrative agencies: Frankfurter to present
• 28:55–31:03: Lochner, substantive due process, and reversal of fortune
• 31:29–34:30: Use of foreign law/practice for arguments shifts rightward
• 35:44–38:29: Standing doctrine, its reversals and political influence
• 41:12–46:52: Representation reinforcement and the challenge of consistency
• 48:44–53:48: Critique of Justice Kagan’s comments on agencies; Judge Jim Ho’s skepticism about judicial arrogance and supremacy
• 56:16–64:29: The “legitimacy” critique—are the courts acting improperly? Discussion of empirical “pro-rich” studies and legitimacy narratives.
• 64:42–67:29: Ray’s argument that the Supreme Court, despite criticisms, is a net protector of democracy and rule of law.

Addressing Criticisms & Broader Context

Judicial Arrogance and Supremacy [52:02]

• Judge Jim Ho criticizes judicial arrogance and the dangers of unchecked “judicial supremacy.”
  • Ray notes this is reminiscent of a former era where conservatives demanded constraint, less so today.

“Legitimacy” Attacks [56:16]

• Media and academic critiques increasingly frame Court as acting for Trump or the rich, disregarding traditional legal analysis.
• Ray is cautious of excessive cynicism; believes descriptive and internal-legal analysis need not be at odds.

Is the Supreme Court Saving Democracy? [64:42]

• Ray: Yes—the Court, through carrots and sticks, has checked executive overreach while allowing legitimate moves by the current administration.
• Cites historical antecedents (Marbury, Warren Court) in explaining modern Court’s balancing act between principle and pragmatism.

Final Reflections

• Ray and Isgur encourage listeners to challenge their comfort levels and strive for methodological and ideological consistency. They stress the importance of understanding shifts in judicial attitudes as structurally—and predictably—tied to changes in institutional power, not just accidents of personality or politics.
• The episode is forthright in challenging partisans of both left and right, ultimately inviting a broader conversation about the role of courts in American democracy.

Suggested Further Listening/Reading

• David Strauss, Leah Litman, Melissa Murray on representation reinforcement
• John Hart Ely’s “Democracy and Distrust”
• Will Baude’s “Marbury Now” (for historical continuity in judicial strategy)
• Andy Smarrick and Jonathan Adler for external critiques referenced in the episode

If you want to question your assumptions about judicial power—no matter your politics—this rich episode is a must-listen for legal thinkers, lawyers, and anyone interested in the evolution of the Supreme Court’s culture and influence.