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The Nation Earl Warren Made


This is FRESH AIR. I'm Terry Gross.

I: Jim Newton, welcome to FRESH AIR. So what were some of the accomplishments of the Warren court?


Well, I think you'd have to start with--the landmark decisions of the Warren court would include the right of privacy in Griswold, which is now, of course, the foundational right debated in the context of abortion. The right to counsel in state trials. Before the Warren court, poor defendants were in some states required to defend themselves. Probably the biggest case of all, Brown vs. Board of Education, which curiously was really Warren's first big decision as a Supreme Court justice, which established the principle of school desegregation and then later the follow-up cases after Brown which desegregated a whole host of public institutions. Also a variety of cases in the area of police procedure, Miranda, probably the best known, requires police to read suspects their rights. In case after case, I think what's really interesting about them too is they were almost to a case extremely controversial in that period and yet the rights that they establish are really very much accepted rights of American life today for the most part. So I think the Warren court's legacy has actually worn quite on the country.

GROSS: Now you see Warren as a centrist figure that conservatives and liberals have reasons to dislike.

NEWTON: Mm-hmm. That's right. Or maybe not reasons to dislike but have come to dislike for the wrong reasons.

GROSS: OK. Would you explain?

NEWTON: Yeah. Of course. Warren, first of all, was a Republican and very much an establishment figure in his period. He was the only three-term governor in the history of California, a very popular governor across parties. You know, a member of the Bohemian Club, a grand master of the masons. I think, in every sense, a very sort of traditional establishment figure. At the same time, he pursued a legacy on the Warren court obviously that was controversial in its day, and I think that caused some Republicans, most notably Dwight Eisenhower, to be very disappointed in him, and, at the same time, I think he sort was too establishment and too 19th century for Democrats ever fully to have embraced. So he ends up a little bit betwixt and between I think our modern definitions of liberal and conservative and Republican and Democrat.

GROSS: And one thing that a lot of liberals don't like about him is that he supported the internment of Japanese Americans during World War II.

NEWTON: Absolutely, and in fact, there I think it's a really important episode in Warren's life obviously for its implications for Japanese and Japanese Americans, but also because I think that in internment you see--and in other episodes in his life--a real core principle of Warren, which was his patriotism and his sense of defending the national security. In the case of the internment, it caused him to make the worst mistake of his life, which was his enthusiastic advocacy of it. Later, it caused him to accept the chairmanship of the Warren Commission when he was very reluctant to take the job as the head of the commission, but President Johnson urged him to do so and appealed to his patriotism to do it. He was deeply and all his life a patriot.

GROSS: Earl Warren started in California as a prosecutor and attorney general and then governor. His reputation when he worked in California was as an anti-communist and he developed a pretty close relationship then with J. Edgar Hoover.

NEWTON: He did, part of a lifelong and very complicated relationship with Hoover. One is tempted to say that everyone's relationship with Hoover was somewhat complicated. He got to know Hoover back in the '30s and, as you say, they sort of bonded around their anti-communism as Warren was a very stern and effective prosecutor whom Hoover appreciated. Their relationship wore pretty well through the gubernatorial years. Warren called on Hoover for help in vetting appointees and whatnot. It entered what I described in the book as a sort of cooling phase not long after Warren becomes chief justice and begins to issue opinions that are in defense of communists and in defense of their civil liberties, and then it broke down forever in the wake of the Warren Commission and its findings, which included some mild rebukes of the FBI's handling of that case which Hoover never accepted.

GROSS: Earl Warren had hoped to be Eisenhower's choice for his vice-presidential running mate. But that went to Richard Nixon which I guess was the beginning of a very long rivalry between them. How did Eisenhower end up giving Earl Warren a seat on the Supreme Court?

NEWTON: Yeah, well, two things. First, although it is an important moment in Warren's rivalry with Nixon, the real seeds of their rivalry go back to 1946 when Warren refused to endorse Nixon in his first campaign for Congress, and--so really from the very beginning of the Warren-Nixon relationship, there's tension, and it never goes away, although it really blossoms in 1952 at that Republican convention when Warren was a candidate for the Republican nomination and believe that Nixon had undermined his chances. It's that convention which nominates Eisenhower. After Eisenhower is nominated and ultimately elected, he considered Warren for a Cabinet post for interior or justice. Warren had some reservations about that, frankly, because of the money. Warren was never a rich man and had some reservations about taking a job that would have effectively reduced his salary. But then Eisenhower does promise him, after passing him over for the Cabinet, that he will give him what he described as the first vacancy on the court. Eisenhower when he made that comment did not anticipate that the first vacancy would be the chief justiceship. He assumed that one of the associate justices would leave, and when the first...(unintelligible)...Fred Vinson, Warren's predecessor, died, it opened up the chief justiceship first, and Eisenhower tried to withdraw from that promise to Warren at that point and equivocated. Warren held him to the promise, actually went into hiding for a few days on an island off the California coast to go hunting where he was out of telephone range so he would cause Eisenhower to squirm over the implications of getting out of this promise. Ultimately holds him to it, and, as we all know, secured the chief justiceship.

GROSS: What was the Supreme Court like when Earl Warren became the chief justice?

NEWTON: That's an excellent question and one which I think people would do well to think about today. The most interesting thing to me about the court that Warren inherits is that so few of his justices had been judges. The five great justices of the early Warren court are Earl Warren, Felix Frankfurter, Robert Jackson, William Douglas and Hugo Black. Not one of them had had any significant service as a judge. Hugo Black had served briefly as a night police court judge early in his career but he came from the Senate. Robert Jackson had been attorney general. William Douglas came from the SEC, and Felix Frankfurter was a Harvard law professor, and, of course, Warren had been governor of California. And I think that one result of that was a sort of intellectual diversity on that court that really brought a range of experience and a breadth of vision to it that, ultimately, I think, was very good for that court, and while today's court, by contrast, is all professional judges, and while that's probably had the positive effect of making it somewhat more professional in its legal analysis of cases, I do think it's a narrower court today than the one that Warren inherited and ran for the 16 years that he was chief justice.

GROSS: What do you think Eisenhower was expecting Warren's politics on the court to be?

NEWTON: I think Eisenhower made a fundamental misjudgment about Warren, but an understandable one. I think he saw Warren as very much like himself, and in some ways they were similar. They were both centrist, internationalist Republicans. Both of them ran against Taft in '52 who represented a much more conservative and isolationist wing of the Republican Party. So, in a sense, they were vying for the same constituents and I think tended to see each other in similar terms. What Eisenhower did not understand about Warren was that Warren grew up in California which had its own very sort of unique politics for the period and the really defining feature of Warren's politics growing up in California is that he was a member of the progressive wing of the California party. I think partly because that was not a terribly robust political tradition outside of California, Eisenhower did not fully grasp the extent to which he was buying into a tradition unlike his own, and I think that goes a long way toward explaining his later disappointment with Warren as chief justice.

GROSS: Well, Warren was a recess appointment and then when the Senate did get to confirmation hearings, there was an attempt to smear his reputation. Would you tell us who was behind that and what they had to say?

NEWTON: There were a whole variety of sort of personal and salacious charges against Warren, none of which was substantiated and none of which were true, but for Langer, it served the purpose of sort of rebuking Eisenhower. Langer at the time was critical of the Eisenhower administration for not appointing more nominees from his state, and at the same time, it had the effect of raising Langer's profile nationally by associating with this campaign against Warren. The great irony, of course, once they bring it to the vote on Senate floor, there were no votes against Warren. He was approved by voice vote. And Warren himself--and this is sort of curious to think about in retrospect, Warren refused to testify at the hearings, because as he said, he had been a recess appointee, he was already serving as the acting chief justice and felt it would be a violation of the principle of the separation of powers for a Senate committee to question a sitting justice. So he just avoided the hearings altogether.


GROSS: When Earl Warren became the chief justice of the Supreme Court, there was only one other Republican on the court, and the Democrats on the court were very divided. What were they divided over?

NEWTON: And when Warren arrived, there was a bit of a sort of fight for his soul in that earlier period. Frankfurter and Black each do their best to sort of woo him to their camp. It's no surprise to me that Warren ended up a believer in an activist judiciary and found Black's vision of the judiciary much more appealing to him. Warren, after all, had come as a governor who was used to reaching out and addressing problems, and I think he found that the arguments for restraint is something close to shirking one's duty. I mean, he really felt when cases came to him it was his responsibility to decide them and not to avoid them. As he gravitates closer and closer to the Black wing of the court, Frankfurter became increasingly disenchanted with Warren. In fact, soon began to refer to him by the nickname the "dumb Swede," and Hugo Black, meanwhile, very much enjoyed Warren and Warren settled quite comfortably into the Black wing of the court.

GROSS: How do the meaning of activist court compare in the '50s when Earl Warren became chief justice to what the meaning of it is now?

NEWTON: Well, I think there was a clear understanding that activism and ideological position were two separate debates, so I think that there's something of a misnomer at work in the current debates over activism and that activism is associated almost exclusively on the national level with liberal activism. And I just think that's frankly inaccurate. One can be an activist conservative or an activist liberal, although it is true that the Warren court's activism was generally more liberal than conservative. But the two ideas, activism and ideological principle, are two, you know, entirely separate questions.

GROSS: As chief justice, Earl Warren often wanted unanimity in major decisions, and a good example of that is Brown vs. Board of Education which outlawed school segregation. Why did he want unanimity?

NEWTON: I think, particularly in Brown, Warren understood, and he understood this with the seasoned background of an experienced politician, he understood that a divided court would send a message to those who would resist the opinion that they had sanction to do so. The court that he inherited--had the Vinson court decided Brown, I think it's clear that there would have had at least three votes against the NAACP position and Brown. Warren understood better than most that such a divided court would have given quarter to those who would resist. As it was, those who resisted, resisted long and hard enough, but I think a unanimous court, which he very worked hard to achieve and which I think is a singular accomplishment that can be attributed to him, he understood that a unanimous court would couple a legal result with a sense of moral imperative, and while that did not have the effect of desegregating schools as quickly as Warren would have liked, it did have other effects. It did, for instance, give great protection to the early civil rights movement. It heartened early civil rights leaders and throughout most of the civil right movement, for the leadership of that movement to know that the Supreme Court was united in its defense of those efforts.

GROSS: What did he do to unite the justices on this decision?

NEWTON: So with those early comments and conference, I think Warren framed the debate in a way that pushed it toward a united court and then he proceeded very gently to sort of nudge the other justices along throughout the winter of 1953 and spring of '54. The very final person to come on board was Reed, and Warren goes to him at the near of his deliberations and just says to him, you know, `It's up to you. Is it going to be you or the country?' in effect, and Reed at that point agrees to sign on. Jackson, who had also had reservations about the case, not in ideological terms but in terms of what it said about the court's activism, was in the hospital when Warren took him the case personally. He read it, to great relief believed that he could sign it, and actually dragged himself out of the hospital to be there on the day that it was announced so that he could telegraph the court's unanimity on it.

GROSS: In your book, you describe how Chief Justice Earl Warren limited Brown vs. Board of Education to desegregating the schools. Could he have expanded the decision to other places and why did he limit it?

NEWTON: His interest in limiting it, I think, was largely to limit the target that Brown offered to its critics. The court's great fear in that period was that they would issue an order that would simply be disobeyed and that that would undermine the court's authority. By limiting Brown, it had the effect of limiting the opposition to Brown. I think Warren was to some extent naive in thinking that that would make school desegregation go smoothly, that--if anything, is just exaggerated by what's referred to as Brown II, the case the following year which allows desegregation to proceed, as the court infamously put it, all deliberate speed. All of that though was an attempt to cajole and persuade Southern moderates, in particular, to go along with the ruling. It did not have the effect of moving school segregation nearly as quickly as Warren or his colleagues would have liked. It did have the other consequence of encouraging the civil rights movement and encouraging desegregation in other fields, and then the court after Brown desegregates a number of other institutions one at a time, in each case simply referring back to Brown, which is not a terribly satisfying approach for legal theorists but had the effect of over and over signaling that a united, unanimous court was not going to tolerate segregation in public facilities.



GROSS: The Miranda decision was handed down under Chief Justice Earl Warren and, as you point out in your book, it's a kind of a surprising decision in a court that's headed by a former prosecutor. What was Warren's thoughts about the Miranda decision which requires police to read the rights to suspects when they are arrested?

NEWTON: Mm-hmm. Warren was deeply offended by crime and, yes, he was a prosecutor, but I think his experience as a prosecutor was--part of his experience--part of the takeaway of his experience as a prosecutor was a really stern belief that police and prosecutors should behave professionally. And thus, I think Miranda is an expression of that very stern professionalism that Warren practiced as a prosecutor, as a governor, and then finally as chief justice. I do think it's safe to say that over time Warren became more insistent on a higher degree of professionalism than he practiced himself as a prosecutor. Some of Warren's cases as a prosecutor would not have withstood the Warren court's scrutiny. Some people see that as a contradiction. I intent to see it more as this sort of natural evolution of a person who did grow as he got older and who grew into this job. I think through the time he was chief justice, he became increasingly offended by what he saw as sloppy or unprofessional police practices. And Miranda's in a sense the apotheosis of that development.

GROSS: When I was growing up, there were "Impeach Earl Warren" signs on highways in a lot of places. And you devote some of the book to the "Impeach Earl Warren" movement which got started in 1961.

NEWTON: Mm-hmm.

GROSS: Who was behind it?

NEWTON: The John Birch Society was behind it. The John Birch Society, which was the creation of a guy named Robert Welch. The Birch Society--Warren always viewed the Birch Society's efforts as more an effort at self-promotion than a genuine attempt to impeach him. And it's true that no impeachment articles were ever brought against him. No serious attempt was ever made to impeach him in Congress. That said, it became--it did tap a deep vein of resentment toward Warren and the Warren court. And as much as Warren himself tried to shrug it off, there is evidence that it did get under his skin at times. There are clerks who remember him wincing to references to the signs and even he admitted that it bothered his wife. It was a long, and as I say, even an ultimately unsuccessful in the sense of a political impeachment. It was a huge national highly visible attempt to really call into question the legitimacy of the Warren court.

GROSS: What did the John Birch Society have against Earl Warren?

NEWTON: Well, there are a few areas in which the Birch Society adamantly disagreed with the Warren court's rulings. It was--it believed that the court had overstepped its authority with--in respect to desegregating public institutions, and it believed, quite fiercely, that the Warren court in its defense of the civil liberties of communists had exposed the country to danger from subversion. It is worth remembering, though, too, that the Birch Society had a tendency to see support for communism and communists in a lot of different quarters. They at one point accused Eisenhower himself of being suspect. So they drew a pretty low threshold for what constituted support of subversion and communism. They also were highly critical of other justices of the Warren court as well. But, you know, as one of the great scholars of the Warren court, Scott Poe has written there's a reason why there weren't "Impeach Bill Brennan" signs. I mean, Warren became--Warren was the clear leader of that court and the clear target of the Birch Society and the clear symbol of what they saw as a sort of reckless excess of the court.

GROSS: Did Warren intentionally leave the court so that President Johnson could appoint his successor and that it wouldn't fall to President Nixon?

NEWTON: Johnson then appointed or nominated Abe Fortis to succeed Warren, and Johnson, I think, at that point, really overestimated his own authority and his own power. Johnson was in the last year of his administration and an administration badly weakened by Vietnam. He had announced his intention not to seek re-election. And at the confirmation hearings that summer, first opponents of the Fortis nomination stall and then various disclosures come out about Fortis which undermine the confirmation--his confirmation, so ultimately, Fortis is forced to withdraw his nomination for chief justice. Then there's the very awkward moment where Warren has announced he will--that he's too old to continue serving, and he's ready to leave, but once Fortis withdraws, then his retirement has been predicated on the nomination of his successor. And there is no successor, so both he and Fortis then returned for the 1968 term on the court. And, of course, that meant that once the vacancies arose, first--well, both Fortis and Warren, that it was, in fact, Nixon who replaced them.

GROSS: So who did Nixon replace Earl Warren with?

NEWTON: He replaced him with Warren Burger and oddly, Warren Earl Burger. Their--beyond their sort of curious names--the transposition of their names, very different figures. Warren--Earl Warren was deeply suspicious of Warren Burger. As he would've been, probably, of any nominee that Nixon put forward, but Earl Warren considered Burger an unworthy successor and someone who he very much was concerned about what Burger would do to the court.

GROSS: Considering that Nixon and Warren had not only a rivalry, but they really disliked each other, it must've really hurt Warren to know that his successor was going to be appointed by Nixon.

NEWTON: Yeah. I think there's no question about it. It--he did everything he could to keep that nomination out of the hands of Richard Nixon and then ultimately was forced to give it to him. And I think it had to give him a pain as well to swear in Nixon as president.

GROSS: How did Nixon change the court?

NEWTON: Well, Nixon and Ford replaced five of the justices--of the Warren court justices. It was, therefore, just in simple terms of its membership, a very vastly changed court from the court that Warren left. I believe in some ways, though, the court changed less ideologically than Nixon thought it would. And there's a whole--now that's sort of beyond the scope of this book, but there's a whole set of explanations for that. Not the least of which is the Harry Blackman, one of the Nixon appointees turned out to be far more moderate, I think, than people thought he was going to be. It is, after all, a Republican appointee, Harry Blackman, under Chief Justice Warren Burger that issued Roe vs. Wade. Many people today, I think, think that Roe vs. Wade was a Warren court decision because it seems in line with the Warren court's ideology and activism. The fact is it's a Burger court decision. And so, in that field and in many others, I think where people thought there would be a real radical retooling of the Warren court legacy, I think it ended up being less traumatic than Warren feared and less traumatic than some of the critics of the Warren court had hoped.

GROSS: What do you see as being Earl Warren's legacy?

NEWTON: On a national scale, I think that the architecture of civil liberties that we enjoy today in this society are largely there. Not exclusively, but largely there because the Warren court and Earl Warren put them there. Whether it's a right to privacy or a right to counsel or a right to vote in elections that--where votes are counted equally. Whether it is in the principle of integration as a value of American society. These are the real hallmarks of a mature society, and it's important to remember that they were not there pre-Warren. And so I think Warren personally and certainly the Warren court deserves a huge amount of credit for leaving a legacy of a fairer and more mature country. There is a separate legacy and that is in California that is not, obviously, national in scope, but Warren left a legacy in California of genuine political centrism. He--in 1946, he was nominated not only by the Republican Party in California but also by the Democratic Party for governor. That is an altogether unimaginable achievement in modern California life. But he really does leave for California a sense of what it is to genuinely govern from the center. And I think that, too, while that is not national in scope, that is a profound contribution to the history of the nation's largest state.

GROSS: Are there things that you're looking for in the Supreme Court of today or ways that you're looking at it that you wouldn't have thought of before doing the research on your Earl Warren book?

NEWTON: Two of the stark differences, I think, between the court today and the court in Warren's period, I am much more mindful of today than I was at the beginning of the book. And that is one that is clearly more of a diverse court today in terms of the fact that there are, obviously, women on the court. There was not when Warren was there. It is racially more diverse than in Warren's period. And yet, it is not intellectually and by experience, the diverse place that it was in the Warren years. And I think that the--it is a by-product of our confirmation process that administrations in recent years have been reluctant to put up nonjudges for the court. And I think that's unfortunate. And I am much more mindful today than I was at the outset of the research of the book of how much of a price the court and country had paid for an unwillingness to think more broadly about who should be considered qualified candidates for the court.

GROSS: What is the price you think we've paid?

NEWTON: I think we've accepted a court that is much narrower in its world view. That the--one of the great strengths of the Warren court is that it drew its great minds--its leading justices out of different walks of life and allowed them to argue out these much broader--these issues of the law in a context of a much broader style of debate about where the court fit into the larger structure of government--American government, American law and American life. And I think today's court by confining itself to more narrow legal questions, it is a much less robust institution than the one that Warren headed. And I think that that's diminished as a result.

GROSS: Well, Jim Newton, thank you very much for talking with us.

NEWTON: It's my great pleasure. Thank you.

GROSS: This is FRESH AIR. Transcript provided by NPR, Copyright NPR.

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