by Jim Newton
And that was not all. In addition to the two legislative cases announced that day, the Court handed down two more. The first, Service v. Dulles et al., 38 reinstated John S. Service, a State Department China expert who had been cleared of disloyalty time and again but who was eventually fired by Secretary of State Dean Acheson in 1951 after a loyalty review board mysteriously concluded that there were doubts about him. The second, Yates v. United States,39 voided the convictions of fourteen California Communists under the Smith Act, freeing five immediately and ordering a new trial for the other nine. As with the other two cases decided that day, Service and Yates were written with care not to overreach. What’s more, both were the work of Harlan and thus bore his trademark craftsmanship and conservatism. In Yates, for instance, Harlan painstakingly dissected the meaning of the word “organize,” as the defendants were convicted for their work in “organizing” the Communist Party. Having concluded that the organization of the party occurred in the 1940s and the defendants were not indicted until 1951, he announced that the statute of limitations barred their convictions, hardly a sweeping constitutional conclusion. Similarly, in Service, the Court did not overrule the regulations allowing the secretary of state to fire employees for disloyalty; it only concluded that those regulations had been misapplied in Service’s case.
All those efforts might have dulled the reaction to the decisions, as might have the impressive majorities behind them. But no amount of care in drafting or in assembling votes could blunt the fury that the Court now unleashed. At the FBI, Hoover, so long a Warren admirer, could not believe what Warren’s Court had wrought. Testifying before the House Subcommittee on Appropriations, Hoover mentioned Yates, the decision involving the California defendants charged under the Smith Act, and noted that the Communist Party heartily approved. One “top Communist functionary,” said Hoover, called the decision “the greatest victory the Communist Party in America has ever received. The decision will mark a rejuvenation of the party in America.” In contrast, some judges considered the ruling foolish, he added. One in particular, one Warren Burger, was favorably quoted by Hoover as deploring the “unfortunate trend of judicial decisions . . . which strain and stretch to give the guilty, not the same, but vastly more protection than the law-abiding citizen.” Hoover understandably was accused of using his testimony to criticize the Court—saying that Communists approved of it hardly qualified as an endorsement. Aides replied by insisting that Hoover only had relayed the reactions of others.40 Hoover and Warren remained civil after what quickly became known as “Red Monday,” but their relations were on a decidedly cooling trend.
This time, the Court’s critics also included not just a sulking, reticent Eisenhower but an actively angry one. The president was hosting one of his stag dinner parties on June 18, a day on which headlines across the country trumpeted the news of Red Monday. First the Court had backed the administration into an unpleasant predicament regarding segregation. Now its members had risen to the defense of Communists even as the president was engaged in a global contest for domination over Communism. And fully four members of the Red Monday Court were Eisenhower’s own appointees: Warren, Brennan, and Harlan each played important parts in the cases; Charles Whittaker, whom Eisenhower had appointed just a few months earlier to replace the retiring Stanley Reed, joined the majorities in most but did not participate in Jencks, which was argued before he joined the Court. The president was livid. In front of his guests, he fumed that he had “never been as mad” as he was upon reading the Jencks decision and presumably the balance of the Court’s work in the Communist cases.41 The president’s intemperate remarks quickly made it into print, and an embarrassed Eisenhower then wrote to Warren to defuse the problem. “I have no doubt that in private conversation someone did hear me express amazement about one decision,” Eisenhower conceded, “but I have never even hinted at a feeling such as anger.”42
Undoubtedly amused by the president’s embarrassment—and over his attempt to mince a difference between being angry and amazed by the Court’s work—Warren chose to let Eisenhower dangle a bit. Warren received the letter just before leaving for California with Nina, and waited for three weeks, until returning, to respond. His reply was a masterpiece of telling a president off without quite telling him off. First, Warren acknowledged that he’d had Eisenhower’s letter for three weeks and had delayed responding only because he assumed stories would continue to be written, as if that mattered (in fact, Warren had received Eisenhower’s letter on June 21 and had not left until June 25).43 Then Warren demurred, noting that “it was considerate of you to write, but it was in no sense necessary.” After noting that articles are often wrong for reasons of either ignorance or deceit on the part of the journalist, Warren added, “Whatever the reason, if unfounded, they should be ignored.” “If unfounded” was plainly loaded, as Warren no doubt thought it quite likely that this story was, in fact, “founded.” Turning then to the coverage of the Court’s Communist cases, Warren said it too was often inaccurate, but stressed that he felt he could not respond: “While in other positions, I could and did speak out to counteract such statements. Here we do not respond regardless of what is said.” Again, left unsaid was that Eisenhower’s position, unlike Warren’s, did allow him to speak out. Eisenhower had refused to do so after Brown, and now refused to do so to clarify the Court’s actions in the Communist cases. Warren was chiding him. This time, Eisenhower did not reply.44
It was thus, isolated and angry, that Earl and Nina left for the summer. They were headed to England on the Queen Mary, looking forward to a break from American politics and to Earl’s scheduled appearance before a meeting of the American Bar Association in London. There, it would be Warren’s turn to lose his temper.
The trip across the Atlantic was a pleasant one. The Warrens departed from New York City on July 17. The skies were clear as the ship moved out of New York harbor, and Warren took in the view at the rail.45 On board with the Warrens were legal luminaries heading for the meeting, including Attorney General Herbert Brownell and his wife. The Warrens and Brownells dined together and shared the trip, and Warren found time to mingle pleasantly with others aboard, including New York Times Washington bureau chief Luther Huston. After their easy passage, the group disembarked on Monday, July 22, arriving in Southampton. The Warrens then settled in at the Savoy Hotel and relaxed for the evening before the meetings began the following day. It was then that the trouble started. Warren was always a stickler for ceremony—“a bit of prickly pear,” as one of his clerks said later46—and there was a snafu in the arrangements. Warren’s calendar indicated that the dress for the evening was “informal,” and so Warren arrived in a business suit. Entering the room, he discovered that the rest of the guests were in black tie. Warren suffered through the event, but felt misled and embarrassed by his hosts. Then, as the convention itself began, Warren was blindsided again, this time substantively.
Before leaving New York, the ABA had conducted a number of meetings, and Warren had come to London expecting the events there to be more ceremonial. He was thus taken aback when the convention received a committee report on “Communist Tactics, Strategy and Objectives.”47 The report’s title was misleading. In fact, the report summarized much of the Supreme Court’s recent case law on Communism, criticized those rulings, and recommended that Congress pass legislation to limit the Court’s jurisdiction in such cases. As Warren recalled it, the report concluded with a warning: “If the courts lean too far backward in the maintenance of theoretical individual rights it may be that we have tied the hands of our country and have rendered it incapable of carrying out the first law of mankind—the right of self-preservation.”48
Bad enough that the ABA should issue a statement that treated free expression and association as “theoretical individual rights.” That it should do so without alerting Warren to its plans—and after soliciting his attendance—sent him over the edge. Warren lumbered through the week, then fled London for an extended vaca
tion through Ireland and Scotland, where he brooded with Nina. Returning to the United States later that summer, Warren met on September 4 with the ABA’s president, who came to Warren’s chambers for the discussion.49 Shortly thereafter, the Chief Justice of the United States, head of the nation’s judiciary and one of its most recognizable public figures at home or abroad, quit the ABA.
Warren’s feud with the ABA stretched over years, as he bitterly resented its unwillingness to lend support to the Court in the face of mounting attacks on it. But his anger went beyond pique. Warren felt personally betrayed—set up, even—by the Bar Association. Adding to that sense was an episode that occurred shortly after Warren submitted his resignation in September 1957. The bar’s president asked Warren to reconsider his resignation, but Warren dropped the matter, assuming that his resignation was now final. A few months later, the secretary of the association announced that the chief justice had been dropped from the ABA for “non-payment of dues.” Warren was incensed, worried what his children and grandchildren would think of him, and furious that he should be subjected to what he viewed as “absolute libel.”50 He demanded a personal letter from the bar’s president clearing him of the nonpayment allegation. After several years of wrangling, Warren received it. Satisfied but grumpy, he then recounted the episode in his memoirs at great length.
EVEN IN a presidency of unfortunate utterances, Eisenhower’s comments at a July 17, 1957, news briefing were notable. This time it was not the president’s evasiveness or his garbled syntax that were the problem. Instead, he spoke clearly—and dangerously. “I can’t imagine,” he said, “any set of circumstances that would ever induce me to send federal troops into any area to enforce the orders of a federal court.”51 From that moment forward, it was only a matter of time before some Southern governor would test the truth of the president’s words. It did not take long.
In Little Rock, Arkansas, the local school board had made a better-than-average attempt to respond to the edicts of Brown and Brown II. A week after the first Brown ruling, the board publicly acknowledged its “responsibility to comply with Federal Constitutional requirements” and added, “[W]e intend to do so when the Supreme Court of the United States outlines the method to be followed.”52 The following year, even before Brown II was handed down, the board adopted a plan for integrating high schools first, followed by junior high and elementary schools. The entire district, under that plan, was to be integrated by 1963. Little Rock residents did not like it much, but they acquiesced. Those modest efforts of Little Rock were too much for opportunistic Arkansas state politicians. The legislature passed a slew of new laws aimed at blocking integration and directing the state attorney general to fight “in every Constitutional manner the unconstitutional decisions [Brown and Brown II] .”53
Nine Negro students were scheduled to enter Little Rock’s Central High School on September 3, 1957. Before they could, Governor Orval E. Faubus, under fire for not being segregationist enough, concluded that their admittance threatened the safety and well-being of the state of Arkansas. He mobilized the Arkansas National Guard and directed its armed soldiers to Little Rock. When the students arrived to begin classes, they were met by an angry mob and turned away from school by their state’s National Guard.
Eisenhower might not have cared much for judicial activism or racial integration, but he understood power, and he knew that to allow Faubus to prevail was to announce the effective end of his own authority. The president was on vacation in Rhode Island, and he invited the governor to Newport to discuss the matter. Faubus cautiously agreed, coming to meet with Eisenhower even as his lawyers in Arkansas tried to persuade a visiting United States District Court judge, Ronald Davies, to delay the integration of Central High. Neither the summit in Newport nor the hearings in Little Rock resolved the crisis. At the September 14 Newport meeting, Eisenhower wrested from Faubus a public concession that the Brown decision, regardless of what he thought of it, “is the law of the land and must be obeyed.” But Faubus also continued to insist that “changes necessitated by the Court orders cannot be accomplished overnight.”54
Back in Little Rock, Faubus fought on until September 20, when Judge Davies ordered the desegregation of Central High to go forward and directed Faubus to get out of the way. Faubus’s lawyer stormed out of the courtroom in protest, to the amazement of Thurgood Marshall, there to argue for the NAACP. Then the governor, his constituency now fully stirred, withdrew the Guard and turned Little Rock over to the mob (indeed, Faubus’s actions were even worse than that, as an associate of the governor stayed with the mob and continued to agitate, according to Little Rock’s mayor).55 As Faubus knew it would and encouraged it to do, that mob then descended on the boys and girls who arrived on Monday, September 23, 1957, to begin school. The images of that morning remain, fifty years later, some of the most searing and venomous of the entire civil rights struggle. At least hundreds, perhaps thousands, of angry white men and women rebuffed the boys and girl, their neat clothing evidence of their dignity in the face of spitting and howling hatred. Little Rock’s mayor and police department attempted to protect the students and usher them to school but could not withstand the mob, and eventually the Negro students were taken home for their safety.
The following day, September 24, was worse, and the mayor’s morning telegram to Eisenhower verged on desperate:
SITUATION IS OUT OF CONTROL AND POLICE CANNOT DISPERSE THE MOB. I AM PLEADING TO YOU AS PRESIDENT OF THE UNITED STATES IN THE INTEREST OF HUMANITY LAW AND ORDER AND
BECAUSE OF DEMOCRACY WORLDWIDE TO PROVIDE THE NECESSARY FEDERAL TROOPS WITHIN
SEVERAL HOURS.56
Faubus stood back and watched. Eisenhower returned from Newport to the White House, where he solemnly addressed the nation, beginning by pointing out that he did so from “the house of Lincoln, of Jackson and of Wilson,” about the action he was taking in Little Rock.57
In that city, under the leadership of demagogic extremists, disorderly mobs have deliberately prevented the carrying out of proper orders from a Federal Court. Local authorities have not eliminated that violent opposition and, under the law, I yesterday issued a Proclamation calling upon the mob to disperse. . . .
Whenever normal agencies prove inadequate to the task and it becomes necessary for the Executive Branch of the Federal Government to use its powers and authority to uphold Federal Courts, the President’s responsibility is inescapable.
Even then, Eisenhower declined to lend his authority and popularity to the cause of integration. “Our personal opinions about the decision [Brown] have no bearing on the matter of enforcement,” he insisted, reiterating his oft-repeated sentiment on that topic. As he neared the end of his address, Eisenhower emphasized that he had many friends in the South, even in Little Rock, and that he was confident that they joined him, whatever their views on school segregation, in recognizing the rule of law. In closing, Eisenhower urged the citizens of Arkansas to end their resistance to the federal courts and allow “peace and order” to return to Little Rock.58
The following morning, no such compliance was forthcoming. And now Eisenhower was out of options. Jotting notes to himself, he began by observing the obvious. “Troops,” he wrote, “not to enforce integration but to prevent opposition by violence to orders of a court.”59 Still, troops were troops, as no one knew better than Eisenhower. And dispatching them to control a Southern city summoned a history he dearly wished to avoid resurrecting. He had tried every way to avoid it, but at 12:08 P.M. on September 25, Eisenhower issued the order authorizing the United States military to quell the violence in Little Rock and force obedience to the federal court.60 Seven minutes later, he called the general overseeing the Army’s 101st Airborne Division, and a thousand paratroopers were in Little Rock by nightfall, occupying an American city.
Hatred is the force of a mob. Cowardice is just as surely the essence of its character. The arriving soldiers were greeted with derision. One popular sign among the demonstrators read, “Jo
in the Army and See the High Schools!”61 But the protesters who were happy to stand up to unarmed high school students backed down in the face of rifles and bayonets. The Little Rock nine were escorted to school and guarded in classrooms. Integration, albeit nominal and at the point of a gun, had come to Little Rock.
Warren never commented on the Little Rock crisis of 1957 in public, but there is every reason to believe that he followed it intently. It was, after all, the culmination of the events that he had launched with Brown in 1954 as well as the consequence of Eisenhower’s infuriating tolerance for Southern resistance. Moreover, Warren remained personally invested in the implementation of Brown, and even though his relations with Eisenhower were frayed, he remained in close contact with the administration through Brownell. On September 20, the same day that the district court in Little Rock ordered Faubus to back off, Warren had dinner with Brownell at Brownell’s Washington home.62
