Warren, Earl (1891–1974)

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WARREN, EARL (1891–1974)

The fourteenth chief justice of the United States, Earl Warren presided over the most sweeping judicial reinterpretation of the Constitution in generations. He served from October 1953 to June 1969. In that time the supreme court, overruling the doctrine that separate but equal facilities for black persons satisfied the requirement of equal protection, outlawed official racial segregation in every area of life. The Court ended the long-established rural bias of legislative representation by opening the question to judicial scrutiny and then ruling that citizens must be represented equally in state legislatures and the national House of Representatives. It imposed constitutional restraints for the first time on the law of libel, hitherto a matter entirely of state concern. It applied to the states the standards set by the bill of rights for federal criminal procedure : the right of all poor defendants to free counsel, for example, and the prohibition of unreasonable searches and seizures, enforced by the exclusionary rule. It limited government power to punish unorthodox beliefs and enlarged the individual's freedom to express herself or himself in unconventional, even shocking ways.

The warren court, as it was generally called, had as profound an impact on American life as any Supreme Court since the time of john marshall. It was extraordinary not only in the scale but in the direction of its exercise of power. From Marshall's day to the Court's clash with President franklin d. roosevelt in the 1930s judges had exercised a conservative influence in the American system. Shortly before his appointment to the Court in 1941 robert h. jackson wrote that "never in its entire history can the Supreme Court be said to have for a single hour been representative of anything except the relatively conservative forces of its day." But the Warren Court in its time was perhaps the principal engine of American liberal reform.

Earl Warren seemed an unlikely figure to lead such a judicial revolution. He was a Republican politician, the elected attorney general of California and for three terms its phenomenally popular governor. In 1948 he was the Republican candidate for vice-president, on the ticket headed by Thomas E. Dewey. On naming him Chief Justice, President dwight d. eisenhower emphasized his "middle-of-the-road philosophy." Yet within a few years billboards in the South demanded Warren's impeachment, and the paranoid right charged that he was doing the work of communism. Putting aside the rantings of extremists, there was no doubt that as Chief Justice Warren consistently favored liberal values and unembarrassedly translated them into constitutional doctrine. Where did that commitment come from in a man whose appearance was that of a bland, hearty political figure?

There were in fact clues in his life and earlier career. He was born in Los Angeles in 1891, the son of a Norwegian immigrant who worked for the Southern Pacific Railroad. He knew poverty and personal tragedy. As a young man he was a railroad callboy, waking up the gangs, and he saw men with their legs cut off in accidents carried in on planks. His father was murdered, the murderer never found: a traumatic event that must have helped to point Warren in the direction of justice, legal and social. He put himself through college and law school at the University of California. After a brief try at private practice he spent all his life in public office, as a local prosecutor and crusading district attorney before winning statewide office.

In California politics he at first had the support of conservatives. As attorney general he blocked the nomination of Max Radin, a law professor known as a legal realist, to the state supreme court because Radin was a "radical." As attorney general and governor Warren was a leading proponent of the world war ii federal order removing all persons of Japanese ancestry from the West Coast and putting them in desolate camps; opposing their return in 1943, he said, "If the Japs are released, no one will be able to tell a saboteur from any other Jap." (In a memoir published after his death, Warren wrote: "I have since deeply regretted the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens.…")

But in 1945 Warren astounded political California by proposing a state program of prepaid medical insurance. Characteristically, he did so not for ideological but for human, practical reasons: he had fallen ill and realized how catastrophic serious illness would be for a person without resources. Then, in his last two terms as governor, he became an apostle of liberal Republicanism. A later Democratic governor, Edmund G. Brown, said Warren "was the best governor California ever had.… He felt the people of California were in his care, and he cared for them."

Many Americans and other people around the world saw that same paternal image in Earl Warren the Chief Justice, for he became an international symbol. He represented the hope of authority bringing justice to the downtrodden, an American vision of change by law rather than by rebellion. A single case gave Warren that status: brown v. board of education, the 1954 school segregation decision. In recent years the Supreme Court had chipped away at plessy v. ferguson, the 1896 decision allowing what were termed "separate but equal" facilities but what were almost always in fact grossly inferior schools and other public institutions for blacks. Yet in 1953 seventeen southern and border states, with forty percent of the national enrollment, still confined black children to separate public schools; moreover, there was involved here, unlike higher education, the compulsory daily association of children. The emotional content of the legal question was high. The Court had given the most gingerly handling to the question, restoring the issue to the calendar for reargument.

Warren became Chief Justice before the second argument. The following May he delivered the opinion for a unanimous Court holding public school segregation unconstitutional. The unanimity was itself a striking feature of the result, and a surprising one. Expected southern resistance made unanimity politically essential, but the known attitudes of some members of the Court had suggested the likelihood of dissents. Richard Kluger's exhaustive study has demonstrated that the new Chief Justice played a crucial part in his management of the process inside the Court. After argument he delayed formal discussion of the cases in conference to avoid the development of rigid positions among the nine Justices. Then he stated as his view that the separate-but-equal doctrine could not be maintained unless one thought blacks inherently inferior: an approach likely to induce shame in any judge prepared to argue for that outcome. He persuaded his colleagues even then to avoid a formal vote but to continue discussing the cases, in tight secrecy, among themselves. He wrote an opinion in simple terms. Finally, he persuaded reluctant members of the Court to join for the sake of unanimity. A law clerk present at a late meeting between the Chief Justice and the most reluctant, stanley f. reed, remembers him saying, "Stan, you're all by yourself in this now. You've got to decide whether it's really the best thing for the country."

What is known about the process of decision in the school cases throws lights on one question asked during his lifetime: did Chief Justice Warren exercise leadership or have influence in the Court beyond his own vote in conference? He shared that bench with men of strong personality and conviction: in particular hugo l. black, who said the judicial duty was to follow the literal language of the Constitution and found in it absolutes, and felix frankfurter, who scorned absolutes and said the Court should defer to the political branches of government in applying the uncertain commands of the Constitution. Warren came to the Court utterly inexperienced in its work; how could he have effective influence? The school cases show that he did.

No Chief Justice can command his associates' beliefs. If Warren had served with different, more conservative colleagues, many of the views that made history might have been expressed by him in dissent. Changes while he was on the Court greatly affected the trend of doctrine, in particular the retirement of Justice Frankfurter in 1962 and his replacement by arthur j. goldberg, who was much readier to join Warren in intervening on behalf of liberal values. But the identification of that Court with its Chief Justice, for all its logical imperfection, has substantial basis in reality.

Warren wrote the opinions of the Court not only in Brown but in later cases that dramatically overturned expectations. The most important of these—Warren himself thought them the weightiest decisions of his years on the Court—were the reapportionment cases. A divided Supreme Court in colegrove v. green (1946) had refused to entertain an attack on numerical inequality in political districts, an opinion by Justice Frankfurter saying that courts must stay out of the "political thicket." In 1962 the Warren Court, in an opinion by Justice william j. brennan, overthrew that doctrine of reluctance and said that federal courts could consider issues of fairness in districting. The decision in baker v. carr left open the substantive questions: must the population be the test of equality, or may states weigh geography or other factors in districting? Does the same standard apply to both houses of legislatures? The answers were given by Chief Justice Warren in 1964, in terms so firm that some who listened in the courtroom felt as if they were at a second American constitutional convention. In reynolds v. sims Warren said for a 6–3 majority that every house of every state legislature must be apportioned on the basis of population alone, with the districts as nearly equal as practicable. Few cases in any court ever had so direct and immediate an impact on a nation's politics; reapportionment was required in most of the fifty states, ancient legislative expectations were upset, new suburban power vindicated. Justice john marshall harlan predicted in dissent, as had Justice Frankfurter in Baker v. Carr, that the courts would not be able to manage the apportionment litigation—or to enforce their decisions against political resistance. But the gloomy prediction was wrong. Resistance from political incumbents quickly collapsed; nothing like the emotional public opposition to the school segregation cases developed in any region.

Emotions were aroused by Warren's opinion in miranda v. arizona (1966), holding that before questioning an arrested person the police must warn him that he has a right to remain silent and a right to see a lawyer first—one provided by the state if he cannot afford one—and that a confession obtained in violation of that rule is inadmissible at trial. The decision touched a nerve among police, prosecutors, and others convinced that judges were impeding the fight against crime. Miranda climaxed a series of cases holding local police to the standards of the Bill of Rights: for example, mapp v. ohio (1961), exclusion of illegally obtained evidence; gideon v. wainwright (1963), right to counsel; Griffin v. California (1965), right against self-incrimination;, each overruling an earlier decision. In Spano v. New York (1959) Warren commented: "The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Impatient with reviewing the facts in case after case of claimed coercion, the Court under Warren sought a general prophylactic rule—and wrote it in Miranda.

Objection to the Miranda decision came not only from the law enforcement community. More dispassionate critics saw it as an example of overreaching by the Warren Court. The opinion seemed more legislative in character than judicial, laying out what amounted to a code of police procedure with little basis in precedent. Moreover, the Court did not confront a situation in which reform by other means was blocked, as it had with school segregation and malapportioned legislatures; various reformers were working on the confession problem.

Freedom of expression was another subject of fundamental constitutional development during the Warren years. The most important single decision was probably new york times v. sullivan (1964), holding that a public official may not recover libel damages unless the statement was published with knowledge of its falsity or in reckless disregard of truth or falsity. That opinion was by Justice Brennan. Justice william o. douglas wrote for the Court in lamont v. postmaster general (1965), holding that a statute requiring the post office to detain "Communist political propaganda" from abroad unless the addressee requested its delivery violated the first amendment—the first federal statute that the Supreme Court ever held invalid under that amendment. Warren joined in these and other expansive decisions. He wrote for a 5–4 majority in united states v. robel (1967), striking down a law that forbade the employment in defense plants of any member of an organization required to register under the Subversive Activities Control Act. Warren's opinion for a unanimous Court in Bond v. Floyd (1966) held that the Georgia legislature could not exclude a duly elected member because he had expressed admiration for draft resisters.

The one area of expression in which Warren departed from the majority of his colleagues was obscenity. He thought that local and national authorities should have a relatively free hand to combat what he evidently regarded as a social evil. Thus, while in Miranda imposing a national standard for fair pretrial procedures in criminal cases, he argued in dissent in jacobellis v. ohio (1964) that each local community should be allowed to fix its own standard of obscenity, a view that became the law under Chief Justice warren e. burger in miller v. california (1973). Another example of a departure from Warren's usual approach came when gambling was involved. He generally favored broad application of the right against self-incrimination; but when the rule was applied for the benefit of a gambler in marchetti v. united states (1968), he alone dissented. Once again he saw a social evil.

Scholarly critics of Chief Justice Warren saw the obscenity and gambling cases as illustrating a fundamental shortcoming in a judge: a concern to reach particular results rather than to work out principles applicable whoever the parties in a case might be. In Warren's view, it seemed, justice consisted not in providing a philosophically satisfactory process and basis of decision but in seeing that the right side, the good side, won in each case. Many of the commentators regretted the lack of a consistent doctrinal thread in his opinions. There was nothing like Justice Black's exaltation of the constitutional text, or Justice Frankfurter's institutional concern for self-restraint.

G. Edward White, in a full-length study of Warren's work, rejected the general scholarly view that Warren had no rudder as a judge and lacked craftsmanship. He was an ethicist, White concluded, who saw his craft as "discovering ethical imperatives in a maze of confusion"—and in the Constitution. Thus the prosecutor so hard on corruption that he was called a boy scout, the Californian politician who stood aloof from party machines lest he be sullied, became a judicial enforcer of ethical imperatives. In general his sympathy lay with the little person, with victims, with people excluded from the benefits of our democracy. But he also was in the tradition of the American Progressives, who thought that government could be made to work for the people. Those two themes came together in the reapportionment cases, decisions designed to make democracy work better by making the electoral process fairer. John Hart Ely, in an analysis of judicial review as practiced in the Warren years, suggested that many of the pathbreaking decisions had a democratic structural purpose: to assure access for the powerless and thus make the system work.

There was a directness, a simplicity in Warren's opinions on the largest issues. "Legislators represent people," he wrote in the reapportionment cases, "not acres or trees. Legislators are elected by voters, not farms or cities or economic interests.… The weight of a citizen's vote cannot be made to depend on where he lives." When the Court held unconstitutional a statute depriving a native-born American of his citizenship for deserting the armed forces in time of war, trop v. dulles (1958), Warren for a plurality argued that expatriation was a cruel and unusual punishment in violation of the Eighth Amendment. The death penalty would not have been "cruel," he conceded, but the deprivation of citizenship was, for it caused "the total destruction of the individual's status in organized society" and cost him "the right to have rights."

Warren's whole career suggests that he was a person born not to muse but to act—and to govern. That view provides a connecting thread through all the offices he held. In each he exerted his powerful abilities in the ways open to him. As a prosecutor he fought crime. As wartime attorney general and governor he was a patriot, worrying about spies. In the postwar years, he turned to the social problems of an expanding California. As Chief Justice, too, he was committed to action, to using the opportunities available to make an impression on American life: to break the pattern of malapportionment, to attack local police abuses, to condemn racial discrimination. The instinct to govern did not leave Earl Warren when he put on a robe.

Many regarded him as a heroic figure because he put aside philosophical concerns and technical legal issues and dealt squarely with what he considered outrageous situations. And there were outrages in American life: official racism, political discrimination, abuse of police authority, suppression of free expression. Warren as Chief Justice had the conviction, the humanity, and the capacity for growth to deal effectively with those issues inside that prickly institution, the Supreme Court. But there were those who shared Justice learned hand's doubts about rule by judges, however beneficent. "For myself," Hand wrote in 1958, with the contemporary Supreme Court in mind, "it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not." Earl Warren may have been the closest thing the United States has had to a constitutional Platonic Guardian, dispensing law without any sensed limit of authority except what he saw as the good of society. He was a decent, kindly law-giver. But the exercise of such power by other judges—before and after Warren—has not always had kindly or rational results. The questions about judicial power remain after its extraordinary uses in the Warren years.

Anthony Lewis
(1986)