Justice for All

by Jim Newton

  Douglas was a nationally renowned law professor and the flamboyant head of the Securities and Exchange Commission before turning forty, the age at which he joined the Court.35 When he arrived in April 1939, Douglas was more than ten years younger than his next oldest colleague. Many thought he would not stay long, that the Court was a way station on his route to the White House. He would end up serving longer than any justice in history. His restlessness was evident, however. Long after moving to the bench, Douglas continued to dabble in politics. He considered leaving the Court during the war when Roosevelt talked with him about taking over some defense operations. And in 1944, when Roosevelt was ailing and the vice presidency thus an important prize, Douglas came close to making the ticket, only to see the nomination go to Truman. Meanwhile, Douglas’s scattershot intellect nurtured his love of travel and his fondness for writing. While his opinions were often brief to the point of brusqueness, Douglas was a talented and prolific writer who published more than thirty books, their royalties helping him to cover his mounting alimony obligations. His travel works are models of curiosity; his treatises are exhortations of individualism (titles like Points of Rebellion and International Dissent tell much of the story); his two-volume autobiography is both tantalizing and riddled with factual errors, typical of Douglas in both its pugnacity and its inattention to detail.

  Douglas’s closest friend among the brethren was Black. They wrote together often, feeling their way in the early years toward the libertarian liberalism that would become their hallmark. Off the bench, at least in the early years, they were friends and confidants. Douglas turned to his senior colleague for guidance during his periodic bouts of restlessness with judging. Doctrinally, they also were close, though they arrived at their philosophies differently. Where Black constructed a literalist reading of the Constitution and the Bill of Rights and melded it to his individualism, Douglas evolved into a more pure libertarian. He developed that orientation on the bench, characteristically, as an expression of defiance. The arrogation of power offended Douglas and drove him toward the defense of individual liberty. Particularly searing for Douglas was the Court’s consideration of the Smith Act in 1951. Written by Representative Howard Smith of Virginia and formally if misleadingly titled the Alien Registration Act of 1940, the legislation made it illegal not just to attempt to overthrow the government but to advocate, abet, advise, or teach the “desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession.” The act thus punished not just those who actively sought to overthrow the government but also those who merely talked about it or believed it to be desirable even without doing anything to bring it about. Using that broad definition of subversion, the government charged eleven members of the American Communist Party in 1948, indicting Eugene Dennis and his codefendants for conspiracy as defined by the Smith Act. All eleven were convicted on October 14, 1949.36 The Vinson Court accepted the government’s contention that the Communist Party leaders, through their words, were planning and encouraging the overthrow of the government and rejected the argument that the First Amendment allowed them to do so. “We reject,” the majority concluded, “any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy.”37 Instead, the Court adopted the approach of Judge Learned Hand: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” That calculus was used to uphold the convictions of Dennis and the other Communists.

  Douglas was incensed, and his anger elicited his eloquence, as he rose in defense of the principle of free speech:

  Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest. This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. 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.38

  Black dissented as well, and in the years to come “Black and Douglas, dissenting,” would become a staple of the Vinson Court. By the time Warren arrived, Douglas’s views were steadfast and hardening. He believed simply that government intruded too deeply in the lives of its citizens, and as a judge he enjoyed clipping the wings of government officials at all levels who stymied civil liberties. Douglas eventually would draft the Court’s signature work on the privacy of the individual, and thus of the limit of legitimate government interference in the lives of its citizens. The Court, in Douglas’s view, existed to protect those citizens—to demand the fulfillment of their rights in the face of a government sometimes all too willing to subordinate them. In his core, Douglas was an individualist, and though he would become the whipping boy for generations of conservatives, he was, in many ways, one of them: rugged, independent, suspicious of the state, and committed to the individual.

  Black appreciated Douglas’s idiosyncrasies. They were singular men, willing to live apart from those around them. Black in his years as a justice would disappoint many of his Alabama friends. Douglas would disappoint almost everyone who cared about him personally. And so they found each other, and they liked and appreciated each other. When Stone died on the bench, Douglas hoped Black would ascend to the chief justiceship. When Vinson died in his apartment, Douglas again pulled for his Southern colleague. This time, it was Warren who received the nod.

  In 1953, Warren and Douglas were two of America’s most prominent Western politicians, and though they were of different parties, their paths had crossed. Warren recalled meeting Douglas at legal gatherings, but said they were only “slightly acquainted.”39 Douglas thought their bond deeper, and was one of thousands who took the time to write to Warren to express his sympathies and well-wishes for Honey Bear when she was struck with polio. The letter, Warren said in reply, “touched us deeply,” adding that Honey Bear was looking forward to reading Douglas’s memoir, Of Men and Mountains.40 Given his regard for Warren, Douglas remembered being “more delighted than surprised” when Eisenhower named Warren to the Court.41

  And so, on the first weekend of October in 1953, Warren signed the papers resigning the governorship of California and flew to Washington to join his new colleagues, whose work had now become his and whose family he would now preside over. So quick was Warren’s transition from governor to chief justice that he arrived without a robe and had to borrow one. At precisely noon on October 5, 1953, the Court clerk read Warren’s appointment, and Warren took the judicial oath. He then was escorted to the Court’s center chair, reserved for the chief justice, and as he stepped up to occupy it, Warren tripped on the hem of the borrowed robe, almost falling into the chair. “I suppose it could be said that I literally stumbled onto the bench,” he remembered.42

  President Eisenhower and his wife attended the ceremony, as did Richard and Pat Nixon. Warren’s old friend and trusted aide Warren Olney III was on hand as well, waiting for admission to the Supreme Court bar, as he had come to work for the Justice Department as an assistant attorney general. Nixon moved for Olney’s admission (and muffed his line, presenting Olney for “nomination” rather than “admission,” a slip that Warren noted and could not resist including in his memoirs). 43 From his post, Warren administered the oath to his old friend.

  Black was the senior justice, and Warren knew formalities well enough to seek him out first, presenting himself at Black’s chambers just moments after first arriving at the Court and
introducing himself to his clerks and personal staff. Flattered, Black welcomed the new chief with grace, and introduced him to the rest of the brethren. Their first stop was Burton, and Warren mischievously assumed an intimacy with his new colleague, urging him not to let any of his more senior colleagues, notably Reed, know that Warren had come to see Burton first.44 Already, Warren was making friends under the approving eye of Black. To Black directly, Warren acknowledged his unfamiliarity with the Court’s procedures and again flattered his senior colleague by asking him to take over the conference while Warren settled in. Even more deferentially, Warren asked Black what he should read to learn about opinion-writing. “Aristotle on Rhetoric,” the classically self-educated Black replied. That night, as midnight approached, Warren was reading Aristotle in his chambers.45

  Warren moved slowly to assume the full scope of his duties, but his friendly presence immediately lightened the mood of the Court, as his fellow justices warmed to his personality and came to his assistance. Burton, an amateur historian, forwarded to Warren a copy of his history of the site on which the Court stood, a monograph that traced the land from 1550 through eight periods, culminating in the construction of the Court as it was completed in 1935.46 Douglas sent over a copy of “Washington and Manifest Destiny,” an address he had delivered a few months earlier .47 Clark offered help finding an apartment, recommending a place on Connecticut Avenue.48 Frankfurter delighted in taking Warren under his wing, commencing a series of lectures for the new chief on desegregation.49

  Warren was grateful for the courtesies of his new colleagues. From the first days, his notes to them—and theirs to him—conveyed fondness and respect. They were, as Warren’s notes almost always were, formal, but they went beyond stiff collegiality; they were genuinely appreciative. A few days after Warren’s arrival, Black wrote to his sons. In his note, Black demonstrated his keen eye for character. He had only known Warren for ten days, but already Black had intuited his essence. “The new Chief Justice is a very attractive, fine man,” Black wrote:

  Just a short acquaintance with him explains why it was possible for him to get votes in both parties in California. He is a novice here, of course, but a man with his intelligence should be able to give good service. I am by no means sure that an intelligent man with practical, hard common sense and integrity like he has is not as good a type to select as could be found in the country.50

  Chapter 16

  SMEAR

  The biggest lot of tommyrot ever brought before a Senate committee.

  SENATOR ARTHUR V. WATKINS 1

  WARREN’S EARLY MONTHS with the Supreme Court were tentative; as the recipient of a recess appointment, he was guaranteed his position only until Congress returned and took up the matter of his nomination to the position permanently. It was not until early 1954 that Congress set about the awkward business of deciding not whether Warren deserved to be seated on the Court—he was already there—but rather whether he should be allowed to stay.

  Warren himself said little about his confirmation, but that was not because he enjoyed it or took it lightly. Like other experiences that deeply upset Warren, he responded by minimizing it, in this case pushing it out of his official history altogether. His memoirs dismissed his confirmation as Chief Justice of the United States in a footnote supplied by his editor: “The Chief Justice, in writing this book, did not feel that the accusations brought against him had enough validity to deserve attention at the expense of other matters.”2 Because Congress by statute seals its own judicial confirmation records for fifty years, Warren’s decision to skip over the story of his own confirmation has meant that no serious examination of it has ever been undertaken or published. Warren’s biographers have been unable to access the relevant files, so the only descriptions have come from contemporary accounts, based solely on the public workings of the Senate Judiciary Committee and on some enterprising reporting at the time, most notably by James Reston of the New York Times. Only in March 2004 did the Judiciary Committee records at last become available. Their contents reveal a smear of the first order, a deliberately deceitful attack on Warren’s character by the committee’s chair, aided by a self-aggrandizing political disciple and a delusional California private investigator.

  As the cast assembled for that episode in late 1953, Warren was suffering in silence. He was, in those early months on the Court, alone and unhappy. Nina accompanied him to Washington and attended his swearing in, but the next day she returned to California. There, Nina packed up their things, while Goodwin Knight impatiently waited for her to vacate the mansion. The Warren children were in school or on their own, and so the new chief justice was by himself. And Earl Warren without Nina Warren was a diminished, sulky man. “I was,” he remembered later, “perfectly miserable.”3 It was Nina who organized the details of Warren’s unofficial life, she who cooked and kept their home, who laid out his clothes, who made sure his shirts were cleaned without starch—even the slightest bit of starch would give Earl Warren a rash.4 Nina oversaw their modest social schedule and charmed friends and neighbors with her devil’s food cakes. Earl Warren liked order—depended on it, in fact—and it was Nina who brought order to his life. Without her, even briefly, he foundered.

  Friends were also hard to see. Most were far away, in California, and those in Washington were difficult to socialize with under the new strictures of his work. Chief among those was Olney, whose new position as associate attorney general of the United States meant that he and Warren were both in Washington. At first, they resumed their friendship, as the two men enjoyed walks together along the Potomac, reminiscing about California and warming in their old, deep camaraderie. Some nights, Warren would eat at the Olney home, reconnecting with the family as well.5 Soon, however, it became clear to both that it was potentially compromising for the chief justice to maintain a friendship with a senior official from the Justice Department. The walks ceased, as did most unofficial contact between two men who had grown up professionally together and who both were now far from home. Olney took special care never to argue a case before the Supreme Court during the years that he was with Justice; he and Warren reduced their social contacts, and though they saw each other occasionally, those events were few and far between. The separation was difficult—and, as it turned out, temporary—but while it lasted, both accepted it with the stern self-discipline that was the mark of their common professionalism.6

  While some aspects of the sanctum of the Court were comfortable for Warren in those early days—he welcomed the new and complex work—Warren also found it confining. In California, Warren’s schedule was full of public events—speeches, receptions, radio addresses. He was used to speaking his mind, and enjoyed the response it generated. Now he rarely appeared in public outside the Court, and he was especially cautious during the months that his confirmation was held in abeyance. Not until January did he deliver a significant public address. And then it was one so bromidic that it was sure not to give his Senate critics material to use against him. Speaking at Columbia University on January 14, 1954, Warren proclaimed that freedom of thought was the tool by which free nations would prevail over Communist and fascist ones. “Liberty, not communism,” Warren said, “is the most contagious force in the world.” Only in one passage did Warren hint at a controversial notion, his willingness to tolerate excess in the name of freedom:

  When men are free to explore all avenues of thought, no matter what prejudices are aroused, there is a healthy climate in the nation. Dissenters can let off steam. That is important, too. The greatest figures in American history have always recognized this as inherent in our system. The founding fathers themselves were not orthodox either in thought or expression. They recognized both the right and the value of dissent in their generation.7

  Two days later, the United States Senate received President Eisenhower’s nomination of the acting chief justice. It was promptly referred, as judicial nominations typically are, to the Judiciary Committee, which appointed a subcom
mittee to examine Warren’s qualifications. And there the trouble began. The chairman of the Judiciary Committee at that time was North Dakota’s senior senator, the strange and irresponsible William Langer. Hawk-nosed and jowly, with piercing eyes that peered from beneath heavy lids, Langer was a strange blend of abstinent and indulgent: He refused to touch alcohol but chomped a cellophane-wrapped cigar. As a prosecutor, he pursued felons with zeal but amassed a long rap sheet of his own, including arrests for inciting a riot, defrauding law clients, and engaging in numerous suspicious financial deals.

  Nevertheless, Langer clawed out a political career, eventually rising to governor of North Dakota. While in that job, he was convicted of conspiracy and then declared martial law rather than vacate his office. Ousted despite his efforts to hold on, Langer then saw his conviction overturned on appeal and in 1940 ran a successful Senate campaign. That victory brought him to Washington in 1941, but Langer held his office provisionally for over a year as the Senate debated denying him a place in the chamber; only in March 1942 was Langer seated, and then over the objections of thirty senators, including Harry Truman. The nation’s newest senator was among its oddest. His behavior was too erratic to be ignored.8