by Jim Newton
American involvement in the overthrow of Mossadegh was long suspected in Iran and the Middle East—though only acknowledged decades later. Even today, Eisenhower’s personal participation remains murky. But in his diary, Eisenhower made it clear that he enthusiastically approved. “The things we did were ‘covert,’ ” he wrote in the entry, which was declassified at the request of the author in 2009. “If knowledge of them became public, we would not only be embarrassed in that region, but our chances to do anything of like nature in the future would almost totally disappear.”
If exposure would have terminated such adventurism, success had the opposite effect. “When we realize that in the first hours of the attempted coup, all elements of surprise disappeared through betrayal, the Shah fled to Baghdad, and Mossadegh seemed to be more firmly entrenched in power than ever before, then we can understand exactly how courageous our agent was in staying right on the job and continuing to work until he reversed the entire situation,” Eisenhower noted. “I listened to his detailed report and it seemed more like a dime novel than an historical fact.” Eisenhower realized that Iran remained unstable, but if all went well, he hoped, “we may really give a serious defeat to Russian intentions and plans in that area.”
Barely had Mossadegh been dislodged than Ike was confronted with a second decision that gave him the chance to shape history. On the night of September 7, 1953, Fred Vinson, chief justice of the United States, complained of indigestion as he nodded off to sleep. He awoke after midnight in breathless pain, then collapsed in his Washington apartment at 2:30 a.m. His son called for help, but Vinson, sixty-three, overweight, and a chronic smoker, died before the ambulance could arrive. His passing ended a disappointing Supreme Court tenure. Despite a lifetime of service to his nation in all three branches of government, the genial Kentucky moderate was outmatched at the Supreme Court by smart and willful colleagues, often bitterly at odds with one another and beyond Vinson’s capacity to control. His final terms on the bench were marked by the deepening fractiousness of its leading justices, and at the time of his death the Court was facing the most divisive issue of the century: Did a Constitution that promised the “equal protection of the laws” mean what it said when those laws were applied to those whose ancestors were slaves, or had the Court, by its precedents, permitted something else?
Through a series of cases challenging separate educational facilities for black and white students, the Vinson Court overturned segregated graduate schools in Oklahoma and Texas, finding that the institutions in those states were not “equal” to those provided for white students. Those rulings in the so-called graduate school cases enforced the Fourteenth Amendment’s prohibition against unequal treatment but allowed for the continuation of a practice endorsed by the Court in its infamous Plessy v. Ferguson ruling of 1896. The Court in Plessy had upheld segregated railcars as long as they were substantially “equal” in amenities, and thus had allowed the construction of American apartheid. Relying on that ruling, the South, and much of the North, had erected Jim Crow, the elaborate system of separate facilities for blacks and whites, insisting on the fiction that such separation implied no denigration and conformed to the Fourteenth Amendment’s command of equality.
The graduate school cases were decided in favor of black plaintiffs because they were able to show that black universities were in no sense equal. At the University of Texas, for instance, the law school open to whites had sixteen professors and a library with sixty-five thousand books; that open to blacks, including the Houston mailman Herman Sweatt, had just four professors and ten thousand books on order. Texas courts had found no violation there, but Sweatt appealed his case to the U.S. Supreme Court and won. “We cannot conclude that the education offered [Sweatt] is substantially equal to that which he would receive if admitted to the University of Texas Law School,” the Court found. However, the Vinson Court specifically and emphatically declined to take the next step of constitutional logic and acknowledge that separation in itself was inequality. It came close in McLaurin v. Oklahoma State Regents, where it recognized that restrictions on the plaintiff—he was cordoned off in the library and cafeteria, among other things—“impair and inhibit his ability to study, to engage in discussions and exchange views with other students and, in general, to learn his profession.” But still the Court held firm. “Broader issues have been urged for our consideration,” Vinson wrote in Sweatt. The Court avoided them.
In its refusal to address those broader issues, the Vinson Court had built a halfhearted record on segregation. It had ruled in favor of black plaintiffs seeking better educations, but it also had delayed reckoning with the real issue in favor of counting books and appraising the quality of librarians and accreditations. “Separate but equal” survived the Vinson Court.
By the time Vinson died, the Court had become divided and querulous. The Vinson Court consisted of four relatively undistinguished justices—Sherman Minton, Tom Clark, Stanley Reed, and Harold Burton—and four of the most brilliant jurists in the Court’s history. Though all four were liberal in their politics and appointees of FDR, Justices Felix Frankfurter and Robert Jackson were the Court’s fierce and principled advocates for a restrained judiciary, while Justices Hugo Black and William O. Douglas anchored the Court’s activist wing.
Black was a courtly Alabamian and former senator whose gracious manners concealed a tenacious advocate and adventurous intellect. Since 1947, he had been developing a singular constitutional literalism and a sweeping view of the constitutional principle known as incorporation.
Where the First Amendment commands that Congress shall make “no law” abridging speech or religious practice, Black accepted those words as written, testament to his literalism. And he strenuously argued that the Fourteenth Amendment had imposed or “incorporated” the restrictions of the entire Bill of Rights onto the states. As originally adopted, the Bill of Rights only limited the federal government; states could, for instance, restrict speech or assembly or protection against self-incrimination in a way that the federal government could not. But the Fourteenth Amendment prohibits the states from making or enforcing any law “which shall abridge the privileges or immunities of citizens of the United States.” It bars states from denying any person life, liberty, or due process, and it commands the equal protection of the laws. To Black, that meant that the states were fully bound by the protections it guaranteed. He never commanded a majority for those views, but his dogged pursuit of them won piecemeal what he could not win wholesale: the Court gradually extended the protections of the Bill of Rights one right at a time, with Black as a fervent advocate.
Black’s most reliable ally was William Douglas, but he could be a difficult partner. Douglas—a self-styled western iconoclast, brilliant, rugged, irascible—practiced a fierce liberal libertarianism under which he resisted government encroachment in such disparate areas as speech, privacy, and travel. Douglas would, over his many decades on the Court, champion the rights of individuals against their government. Though he was an icon for liberals, at his core he was really something of a conservative, deeply wary of government intrusion, fiercely devoted to individual rights. “We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen,” he wrote in 1951. “We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world.” Across his long career, Douglas would rarely waver from that conviction or miss an opportunity to express it.
At the other end of the Court’s spectrum—defined by their view of the Court’s role in society, not their politics—were Frankfurter and Jackson, no less liberal or gifted than Black and Douglas, but more concerned about the Court’s reach. Like Black and Douglas, Jackson and Frankfurter were appointed by FDR and forged in the experience of the Court’s initial resistance to his economic program. Frankfurter and Jackson extracted from that experience one of the core principles of that era’s Progressiv
e jurisprudence. In that view, judges were bound to operate with restraint, and courts were expected, in general, to defer to the elected branches. They rejected the judicial activism of their day for what it had long been—a conservative tool to blunt FDR’s agenda.
Frankfurter and Jackson approached those ideas differently. Frankfurter was an esteemed Harvard law professor, mentor to generations of acolytes, and a Jew who had once found his path toward Wall Street blocked by discrimination. He had emigrated with his family to the United States from Austria as a young boy and grew up in the Progressive Era, imbibing its distrust of big business and its faith in democratic government. He feared the courts were “cumbersome and ineffective” in the pursuit of social change. He wrote and lectured on those topics with unrivaled genius. And yet, despite his brilliance, Frankfurter was a difficult colleague. He lectured and condescended to those around him and could barely disguise his contempt for those he viewed as lesser intellects, which included most men. When Vinson died, most of his colleagues released gracious statements; Frankfurter remarked that it was his first solid evidence of the existence of God.
Jackson was more personable and subtle, though also sensitive to slight. He elected to skip college and attended only one year of law school, but nevertheless apprenticed himself to a New York lawyer and passed the bar in 1913. He practiced as a small-town lawyer in rural New York, where he attracted the attention of Governor Franklin Roosevelt. Once elected president, Roosevelt tapped Jackson for a series of appointments, and Jackson served with distinction as counsel to the Internal Revenue Service, solicitor general, and attorney general. He was regarded by some as the country’s most effective solicitor general, his arguments so eloquent and persuasive that he shaped many Supreme Court opinions even before joining the bench. He brought that eloquence with him to the Court, where his writing is among the greatest in the Court’s history. In 1943, he broke with Frankfurter to uphold the right of Jehovah’s Witnesses not to salute the American flag in school. His majority opinion is a classic of Supreme Court erudition. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts,” Jackson wrote. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” By 1953, Jackson had served for over a decade, with a notable break to act as the chief prosecutor in the Nuremberg trials. He was an advocate without peer.
Four such willful and brilliant men were bound to bicker, and they did. In 1945, Black and Jackson feuded over a recusal matter. Black voted in a labor case involving a former law partner and refused Jackson’s suggestion that he step aside. Frankfurter joined Jackson, and both sides went away bruised. By the early 1950s, they were barely on speaking terms. Jackson contemplated resigning when Truman named Vinson as chief justice, believing he had been passed over in part because of his public squabbles with Black. Meanwhile, the prickly Frankfurter grew increasingly fed up. He called Black and Douglas “the Axis” and mocked their constitutional scholarship. Douglas returned the favor by ignoring Frankfurter altogether, sometimes leaving the justices’ conference table until Frankfurter finished expounding on a case.
Vinson was unable to corral the difficult personalities and equally failed in bringing the Court to terms with the full meaning of the Fourteenth Amendment. As a result, his death in 1953 gave Eisenhower the opportunity to energize the Court with a leader.
Vinson and Ike had been friends, bridge partners, and mutual admirers. News of his sudden death startled Eisenhower, then vacationing in Denver. He released a statement lauding Vinson’s “efficiency, dignity and integrity.” At the funeral, held at the National Cathedral in Washington, Ike paid his respects quietly, stone-faced and grave. A few seats away, Truman, another friend and confidant of the chief justice’s—their shared card game was poker—fought tears.
With Vinson buried, Eisenhower quickly turned to the question of his successor. He relied on Brownell, whose combination of legal and political acumen made him an extraordinarily capable judge of judges. In Ike’s first and most important appointment, however, the president had already made a commitment, albeit a nonbinding one. After winning the 1952 nomination, Eisenhower had spent time with the governor of California, Earl Warren. When California conservatives floated the idea of placing MacArthur’s name on the state’s November ballot, some aides worried that it could hurt Ike’s prospects by splitting Republican votes and tipping the election to Stevenson (Truman had carried California in 1948). Warren, then in his third term as governor, reassured Eisenhower that a MacArthur candidacy would go nowhere. No one knew California politics better than Warren, and his “advice was on the mark,” Brownell recalled.
In those early meetings, Ike grew to like Warren. Both were hearty men, comfortable in the outdoors, strong, straightforward, and likable. Both were veterans, though Warren’s service hardly compared with Ike’s. Both were patriots, devoted to the service of their nation. As moderate Republicans with opponents on both left and right, they had common enemies, though their stiffest challenges tended to come from conservatives. And though Warren was more proficient in domestic affairs and Ike in international relations, both believed strongly that America needed to be engaged in the world, and both regarded the nation’s isolationists as provincial. Even their backgrounds bore some similarities. Like Eisenhower, Warren was raised in modest circumstances: his father was a railroad man blackballed by the Southern Pacific in Los Angeles who then moved his family to rural Bakersfield and raised Warren and his sister there. And, perhaps most important, both were practical and largely nonideological. Ike championed the middle way; Warren eschewed partisanship, refusing to endorse candidates in most partisan races (one of those annoyed by that practice was Nixon, who asked for Warren’s support in his first congressional campaign but did not receive it).
Eisenhower had considered appointing Warren to the cabinet, most seriously weighing him as a candidate for secretary of the interior. Then, before leaving for Korea, he phoned Warren to tell him he regretted not offering him a cabinet post but pledging to find an appropriate role for him later. In that conversation, Eisenhower told Warren—how firmly was later debated—that he would give him the “first vacancy” on the Supreme Court. In the meantime, the administration would keep Warren in mind for other openings. Brownell lit upon the idea of making him solicitor general, where Warren—who had not practiced law since moving from state attorney general to governor in 1943—could freshen his legal skills while waiting for a vacancy. Warren pondered the offer, then accepted on August 3, 1953, in a coded cable from Europe.
Returning home later that month, Warren quietly began to wrap up his governorship, announcing on September 3 that he would not seek a fourth term. Then, before the White House had a chance to announce his appointment, Vinson died. Warren assumed the position was his since Ike had promised him the “first vacancy.” To Eisenhower, however, the promise had been offered for an associate justice seat, not for that of chief justice, and he did not feel bound to deliver that position to Warren.
Rather than tap Warren, Ike weighed possible candidates: he considered John W. Davis, a Democrat and the lawyer representing South Carolina in its campaign to maintain school segregation; several leading circuit court judges; and Arthur Vanderbilt, chief justice of the New Jersey Supreme Court. Brownell admired Justice Jackson and briefly considered elevating him to chief justice and appointing a new associate justice, but Jackson’s squabbles with Black had sullied his reputation, and as a New Deal Democrat, Jackson was hardly right for Ike’s first nomination to the Court. Further proving that he did not consider himself bound to Warren, Eisenhower sounded John Foster Dulles out regarding the secretary of state’s inte
rest in the position, but Dulles declined, saying he was “highly complimented” but more interested in continuing in his “present post.” Eisenhower never mentioned that offer to his attorney general.
Warren, meanwhile, played what cards he had. He called on friends with ties to the White House and then departed for Santa Rosa Island, off the California coast, where he made himself hard to reach while letting Eisenhower stew in the prospects of breaking his word. Warren announced that he was hunting deer with his sons, but really he was trying to make himself unavailable. “It was kind of a hideout,” he conceded later.
As Brownell and Eisenhower sifted through their options, they decided they needed to be back in touch with Warren to clarify his understanding of the president’s promise. A Coast Guard vessel was dispatched to fetch Warren from Santa Rosa. Back onshore, he conferred with Brownell by telephone. As Brownell attempted to explain that Eisenhower did not feel bound by his earlier pledge, Warren was adamant. “First vacancy,” he insisted, “means first vacancy.”
Sensing that they were making no progress, Brownell proposed a face-to-face meeting. Two days later, the two men met privately at McClellan Air Force Base, outside Sacramento. Warren came in his hunting clothes. They retired to a hangar, where they talked for several hours and Warren continued to insist that Ike honor his word. Brownell flew home, and Warren boasted to a friend that the job was his. Brownell leaked the idea to a few friendly reporters in Washington. Their reports were well received. Finally, Ike made it official the next week, naming Earl Warren as the fourteenth chief justice of the United States.
