by Jim Newton
In early 1956, the nearly united political leadership of the South, particularly in Congress, joined to add its condemnation of the Court. “We regard the decision of the Supreme Court in the school cases as a clear abuse of judicial power,” the Southern Manifesto began. After a cursory review of public education and the Fourteenth Amendment, the signers blamed the Court for disrupting “amicable relations between the white and Negro races” and for creating an “explosive and dangerous condition.” The Manifesto’s signers praised those states engaged in resistance and pledged themselves to “use all lawful means to bring about a reversal of this decision.”38 The Manifesto pointedly did not say what those “lawful means” would be, unsurprisingly, given that no such means existed to repudiate a decision of the United States Supreme Court. As Robert Jackson had long ago noted, the justices are not final because they are infallible, but they are infallible because they are final. The Constitution provides no avenue for rejection of its work other than constitutional amendment, and that clearly was not what the Manifesto contemplated. Nineteen senators and eighty-one members of the House—nearly the entire representation of the American South in the United States Congress—signed the Manifesto.
Still, as long as resistance to the Court was confined to the South, Warren was safe. Southern prejudices had embedded themselves deeply in the life and social structure of that region, but they were not widely shared in the North and West. The Manifesto thus was provocative—annoying, even—but unthreatening, as long as its complaints were regional. That all changed one month later when the Court announced its decision in the case of Steve Nelson, an admitted member of the Communist Party, who had been tried and convicted for subversion by the state of Pennsylvania. That state’s Supreme Court, however, had concluded that because Nelson had been convicted of sedition against the United States and not against Pennsylvania, its state law was preempted by the Smith Act.
The case had come to the Court the previous fall, but now, on April 26, 1956, the ruling was ready. Warren wrote Nelson, and he did everything possible to contain the reaction to it. Speaking for himself and all but Reed, Burton, and Minton, Warren merely upheld in his opinion the Pennsylvania Supreme Court and did so on the same technical grounds as the court below. Moreover, he took pains to explain the limits of the ruling and even favorably to note the efforts to combat international Communism. “Congress,” Warren wrote, “has devised an all-embracing program for resistance to the various forms of totalitarian aggression. Our external defenses have been strengthened, and a plan to . . . protect against internal subversion has been made by it. It has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world.”39
But none of Warren’s efforts could obscure the bottom line. What Nelson came down to was an assessment of Congress’s intent in passing the Smith Act, its principal vehicle for attacking Communist subversion. And what Warren and the majority concluded was that Congress had produced such a pervasive scheme that it left no room for states to add their own anti-Communist efforts. Pennsylvania’s court was right to let Nelson go, Warren ruled. The grounds were technical and the rhetoric spare to the point of dull, but the fact was that Steve Nelson, an avowed and admitted Communist, won the support of the United States Supreme Court. And the Southern legislators who had once been isolated in their attacks on the Court now had anti-Communist allies across the nation.40
The resolutions came in many shapes and sizes, but typically amalgamated Brown and Nelson under the general charge that the justices, so many lacking judicial experience, were incapable of understanding the law. Sensitive to charges of racism for attacking Brown, Southern leaders instead alleged that the Court had relied on sociologists such as Myrdal (“and their ilk” one resolution added for good measure), rather than on legal precedent. That was the price for footnote 11. The price for Nelson was a charge of treason. That ruling, the Georgia legislature found, constituted “aid and comfort to the enemy.”41 At least the Georgia legislature merely called for impeachment. A California group calling itself the Cinema Educational Guild recommended that Warren be found guilty of treason and condemned to the same fate as Julius and Ethel Rosenberg: death.42
Warren soldiered on. Even as critics derided his intelligence, experience, and loyalty, Warren joined a bare majority of the Court in laying down one of the early markers of its criminal justice jurisprudence. Decided on April 23, 1956, Griffin v. Illinois forced the state of Illinois to give prisoners who could not otherwise afford one a free transcript of their trials in order to appeal. Illinois required that transcript to consider allegations of error during the trial, and as long as it made the transcript mandatory, the Court ruled that the state could not deny it to the poor. Griffin was less momentous than the criminal justice cases of the Warren Court’s heyday in the 1960s, but it foreshadowed the Court’s egalitarianism, which Warren would make its hallmark. “Providing equal justice for poor and rich, weak and powerful alike is an age-old problem,” Black wrote for himself, Warren, Douglas, and Clark (Frankfurter concurred in the result, supplying a majority, but he wrote a separate opinion). “People have never ceased to hope and strive to move closer to that goal. . . . In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color.”43
Racism and anti-Communism found each other in the spring of 1956, just as Eisenhower had recovered from his heart attack of the previous fall and decided to seek reelection. The president was in no mood to defend his wayward Court in its coddling of Communists. As clamor for action against the Court spread, Eisenhower let it spread, and even encouraged it. The president never spoke out against the Southern Manifesto, and as Congress debated legislation to overturn Nelson, the Eisenhower administration announced its support. Only the rapid close of Congress for the summer saved Warren the indignity of having the man who appointed him sign a law to strip him of some of his new power.44 It did not come too soon, however, for Warren to escape a piece of political theater staged by Senators Eastland and McCarthy. Fulminating about the Court and its view of the Communist threat, McCarthy announced that there was “something radically wrong” with the chief justice. Taking up his half of the colloquy, Eastland naturally agreed, and though he made clear that he was not accusing Warren of being a Communist himself, he seemed nevertheless to be taking “the same position the Communists take when they attempt to protect themselves.” Of the Court, Eastland added, “It’s just one pro-Communist decision after another.”45
While members of Congress piled on Warren, they gave shelter to those who yearned to express themselves more viscerally. Late at night on July 13, 1956, a twenty-four-year-old man named Ronald Rowley, affiliated with his local White Citizens’ Council and fed up by “Earle Warren Nigger Lover,” soaked some lumber in kerosene and planted two crosses outside the Warrens’ Sheraton-Park residential hotel, then set the crosses on fire in the midnight quiet. He and a cohort were spotted by an alert doorman as they put matches to their work. They fled in separate cars, but not before the doorman was able to memorize the license plate number of one. Before the night was out, crosses were aflame at the homes of Felix Frankfurter, Senator Herbert Lehman (another Sheraton-Park resident, whose cross identified him as “Jew”), Solicitor General Simon Sobeloff (also labeled “Jew”), and the local head of the NAACP.46 Rowley at first denied his involvement, then admitted it, and said he was provoked by Warren’s Court. “I was just trying to make people aware of something they already know anyway . . . that the Supreme Court really was out of order.” The Washington Post ran Rowley’s comments under the headline “Rowley Issues ‘Apology.’ ”47
The close of Congress cleared the way for the summer Democratic and Republican conventions, and they too provided more opportunities for mischief against the Court. At Eisenhower’s request, the Republican platform that year withheld “support” for the Brown ruling and instead merely “accepted” that judgment while concurring with Brow
n II.48 Democrats were no better. Still, Warren continued to walk through raindrops, in part by staying far away from presidential politics. As the two parties settled on their candidates that summer, Earl and Nina Warren returned to their travels, stopping first in New York City, where they took in a Broadway production of My Fair Lady.49 The following day they left for Europe, intending to spend a long vacation in Switzerland. While there, however, they were beseeched by the Indian government to pay a visit to that country’s judiciary, and after ordering up warm-weather clothing, Earl and Nina ventured to the subcontinent, their first visit to the area and the beginning of a lifelong fascination with it. Their long stay in India then was capped by a return through Hong Kong, Manila, and Hawaii. By the time the Warrens returned to California, both parties had their platforms and nominees. All that was left of the campaign was for Eisenhower and Nixon to march through the earnest but overmatched Adlai Stevenson. For Warren, that election marked a quiet transition: He cast his ballot for Stevenson, the first Democrat, though not the last, to receive Warren’s vote for president.50
As Election Day approached, Sherman Minton announced his retirement, and Eisenhower was handed his third opportunity to leave his mark on the Supreme Court. After his disappointment with Warren, Eisenhower never again picked a nominee without a record on the bench, but judicial selection remained strangely casual to Eisenhower. This time he approached the matter with more thought to the November elections than to the character of the Court he was building. Apparently concerned about Stevenson’s strength in some Northeastern states, Eisenhower asked Brownell to find him a conservative Catholic Democrat with judicial experience—preferably a state court judge, since no other member of the Warren Court came from a state judiciary. 51 Brownell recommended William J. Brennan, Jr., an impishly delightful judge then sitting on the New Jersey Supreme Court. Brownell had met Brennan by chance not long before Minton announced his retirement. Arthur Vanderbilt, still serving as chief justice of the New Jersey Supreme Court (having been passed over for Warren in 1953), had been the scheduled speaker at the National Conference on Delays and Congestion in the Courts, of which Brownell was the organizer. Vanderbilt had been forced to cancel at the last minute and had sent Brennan in his place. Grateful that Brennan delivered and impressed by his speech, Brownell not only befriended the justice but also placed his name on Brownell’s running list of potential Supreme Court nominees. When Minton retired, Brownell read Brennan’s opinions and found them “well- reasoned.”52 Brennan fit Eisenhower’s other criteria—he was a state judge, a Catholic, and a Democrat—and so Eisenhower accepted Brownell’s recommendation and named Brennan to the Court. Once confirmed—a simple matter, with only Joe McCarthy voting against Brennan—Brennan took his place among the brethren.
As with Warren, that would prove a nomination that Eisenhower regretted, for Brennan was a committed and effective liberal. Once there—or at least once he had settled fully into the job—Brennan would become Warren’s most faithful friend, deputy, and ally. Together, the two would join Douglas and Black as a solid block of four liberal votes. For Frankfurter, it was yet another promise turned sour. Brennan had studied under Frankfurter at Harvard, and now took his place beside and in opposition to him. Frankfurter once remarked that he had always encouraged his students to think for themselves, but “Brennan goes too far.”53
Brownell brought Brennan to meet Warren on September 29, and Warren took Brennan under his wing. After they talked that afternoon, Warren suggested that he introduce Brennan to the rest of the justices over lunch that Friday. Brennan arrived as scheduled, and went first to Warren’s chambers. Warren then led the younger man upstairs to the Court’s third-floor lounge. The lights were dim as the two entered, but Warren turned them up, and Brennan could see that the justices were eating sandwiches and watching the 1956 World Series. Warren introduced Brennan to the brethren, who shifted impatiently during the pleasantries. Finally one called out to Brennan, “Sit down so we can see the game!”54 After making his introductions, Warren left that afternoon for the Series himself, taking in games 3 and 4 in New York before returning to Washington to open the Court’s fall session. (Warren missed, by one day, seeing Don Larsen’s perfect game, which he pitched in game 5; he and his old friend Bart Cavanaugh had planned to stay for that game, but Warren insisted they leave. He was convinced the Yankees had no pitching talent that year. Cavanaugh never let him forget it.)55
Warren returned to Washington to a Court that now included Brennan as well. The nucleus of the Warren Court was formed.
Chapter 20
“DUMB SWEDE”
I stood up at a time when many people kept quiet, or became informers, or left the country. I am still an American.
LLOYD BARENBLATT, VASSAR COLLEGE TEACHER WHO,
HAVING REFUSED TO TELL HUAC WHETHER HE WAS A COMMUNIST,
LOST HIS JOB AND WAS HELD IN CONTEMPT AND SENT TO PRISON1
IN 1986, long after Earl Warren was gone, Justice Brennan reflected on his then nearly three decades with the Court and identified one of its enduring truths: “In an institution this small, personalities play an important role. It’s inevitable when you have just nine people. How those people get along, how they relate, what ideas they have, how flexible or intractable they are, are all of enormous importance.”2 By virtue of background and inclination, Warren grasped that essential fact of Supreme Court leadership. Indeed, with the possible exception of John Marshall himself, no chief justice ever sensed it better. From the first moments of his arrival, Warren worked to create a harmony that would ease the work of the Court and erase the Vinson legacy of discord. His first ally was Black. His most reliable would prove to be Brennan. But his main obstacle, almost from the beginning, was Frankfurter. By the mid-1950s, their deepening mutual distrust defined much of Warren’s working life; by the end of that decade, it had nearly cost Warren the effective leadership of his own Court.
There probably was no avoiding a break between two such strong-willed and diametrically different men as Warren and Frankfurter. Warren was the son of Methias, raised in a restrained, Protestant, Swedish home, one with little open affection or acrimony. He spent his youth among those who respected deeds over words and he came to prominence in the compromises and calculations of elected politics. Frankfurter was a Jewish immigrant raised in New York City, steeped in the cultural milieu of verbal jousting and close textual debate. Frankfurter was a brilliant professor used to lecturing students and expecting their attention. Warren was a master at getting others to do his bidding by persuasion, not dominance. Frankfurter’s judicial self-abnegation was a considered response to years of contemplating the appropriate role for the judiciary in the separation of powers. To Warren, it looked suspiciously like an excuse for avoiding hard decisions. Warren’s skill and enjoyment at making those decisions was just as much a product of his professional upbringing as Frankfurter’s belief in restraint was of his. And yet to Frankfurter, Warren looked suspiciously like a thickheaded pol.
With so much to separate them, it was unsurprising that after the initial euphoria of Brown, Frankfurter’s appreciation for Warren entered a steep downward spiral. At first their disagreements flared in technical fields. In 1957, for instance, the Court tackled the second antitrust lawsuit involving the DuPont corporation that had come before it in two years. The year before, Warren had joined the dissenters when the Court found that DuPont had not violated antitrust laws in its cellophane business.3 Now the issue before the Court was one of ownership; DuPont had acquired 23 percent of General Motors stock, and the government argued that such a large stake created an illegal monopoly, since DuPont was a General Motors supplier, not merely an investor. Always suspicious of big business—Warren still nursed one grudge from his battles with big oil in California and an even older one against the Southern Pacific—the chief justice announced at the first conference on the case that he believed DuPont had acquired its share in General Motors “for the purpose of controlling a chann
el for the outlet of its products.”4 That, Warren said, was enough to make it illegal under Section 7 of the Sherman Antitrust Act. Frankfurter objected to Warren’s novel and expansive reading of the act, and wrote a dissent that accused the majority of disregarding the “language and purpose of the statute.”5
That case was part of a developing pattern in the conflicting jurisprudences of Frankfurter and Warren as applied to business. Remembering his own railroad labors as well as the toll such labor took on his father and others, Warren searched for ways to relieve employees of burdens and to shift those burdens to companies, particularly big ones. Ignoring Frankfurter, Warren beginning in 1956 inserted the Court into a series of cases involving individual workers and their claims against their bosses under the Federal Employers Liability Act. Each time, Warren urged the Court to give benefits to the workers at the expense of their employers. At first, the justices, even Douglas, were puzzled, but they soon saw the cases as an expression of Warren’s life and humanity. “He knew enough from first-hand experience to see the human values at stake in these FELA verdicts,” Douglas noted.6 Frankfurter viewed Warren’s commitment less charitably. By 1957, he was so fed up he dashed off an intemperate note to Harlan:
The real truth of the matter is that some of our brethren play ducks and drakes with the jurisdictional requirements when they want to reach a result because they are self-righteous do-gooders, unlike Holmes who spoke of himself “as a judge whose first business is to see that the game is played according to the rules whether I like them or not.”7
With Frankfurter, disagreement almost always slid into contempt. And in this case that natural inclination was egged on by one of those he most admired, Judge Learned Hand. Hand was a great judge, inclined like Frankfurter to see his duties in terms of self-restraint. That put him squarely at odds with Warren’s sense of purpose, and as Hand took the measure of Warren he did not like what he saw. On January 1, 1956, he wrote to Frankfurter as part of their long, mutually admiring, and candid correspondence. Hand praised Warren’s statesmanship and acknowledged that his leadership was helpful in the office of the chief justice. “But somehow,” he added, “deep in my belly, I do long for more distinction.”8 By October, the month that Brennan arrived, Hand could not restrain himself even that much:
