Justice for All

by Jim Newton

  The term ended that summer with Warren in a foul mood. Some of the pressure on the Court had subsided, but only because it had gone soft. An editorial in the Washington Post commended the cooler temper in Congress regarding the Court, crediting leaders there but also noting that “the total output of decisions of the Court’s last term seemed to be more moderate than in the previous term.”102 That might have helped ease pressure on the Court, but for Warren, it was nothing to be proud of.

  At the New York Times, Arthur Krock was even more pointed, writing on June 14, 1959, that the Court appeared to have slipped away from Warren and surmising that the new majority was beating its retreat in response to congressional and public pressure. “Two Supreme Court 5 to 4 decisions last Monday [Barenblatt and Uphaus ] have produced a deluge of speculation and firm assertions that ‘conservatives have recaptured the majority from liberals,’” Krock wrote. Those conclusions, he added, seemed somewhat off, but not entirely. Speculating as to why, Krock argued that the “Supreme Court is trimming its sails to ride out a gale.” The columnist even compared the 1959 decisions to the Court when it pulled back in the face of Roosevelt’s Court-packing proposal, and he concluded by noting that Harlan now was leading the Court’s “rechecking process,” while Warren was consigned to dissenting. 103 To his credit, Warren did not waver. It is never comfortable for a chief justice to write in dissent—it advertises his lack of control—but since Warren was both too principled and too stubborn to soften his views, that was all that was left for him to do.

  As summer approached, Earl and Nina looked forward to their annual trip overseas—this time to Europe and the Soviet Union—but first had a few stops to make on the Washington social circuit. At one of those, on the night of June 28, Warren’s accumulated frustrations blew. The subject, as it so often was in his life when frustrations came to a head, was Richard Nixon.

  By 1959, Nixon was well on his way toward announcing his candidacy for president of the United States, the position he had patiently pursued ever since his vice presidential election in 1952. The speculation near the end of Eisenhower’s first term about who might succeed him if he did not or could not run again disappeared when Eisenhower chose to seek reelection. Warren had so firmly taken himself out of that race that few raised it again in 1959, as the administration wound down. But Nixon was openly a candidate. One element of that many-headed effort was the need to soften Nixon’s public persona. Seen by many as little more than Eisenhower’s youthful attack dog, Nixon craved a more complete personality, one that would attract the wider spectrum of supporters needed in order to capture the presidency.

  An author named Earl Mazo offered Nixon the chance to achieve just that. Mazo was at work on a biography of Nixon, and his take was decidedly sympathetic. Nixon cooperated extensively with Mazo, and the resulting book was published in 1959. Warren read reviews of the book with irritation (he insisted he did not read the book itself), and on that June evening in 1959, he ran into Mazo at a dinner party celebrating the twenty-fifth wedding anniversary of two West Coast journalists, Naomi and Barney Nover. 104 In his memoirs, Warren recalled the argument that then broke out between himself and Mazo as centering on Warren’s complaint that Mazo had resuscitated “an old political canard”—namely, that Warren had sought to block Nixon’s career in retaliation for Nixon’s treatment of Helen Gahagan Douglas. That, of course, was not true. Warren had withheld his support for Nixon even before Nixon wheeled on Douglas, and Warren’s real resentment of Nixon dated from the 1952 convention, not the 1946 congressional campaign. But if the facts were off, the underlying point was uncomfortably close—that Warren had stifled Nixon and Nixon had lived uncomfortably under Warren’s shadow for years. Sensing that Mazo was close to the truth and still indignant that his facts were wrong, Warren gruffly insulted the author. The exact words remained in dispute even decades later—a journalist overhearing the exchange reported that Warren had called Mazo a “damned liar,” which Warren denied—but the essence of the exchange was clear. Warren insulted Mazo, in a room full of journalists there to honor the anniversary of two colleagues, and one of the reporters in attendance could not resist publishing the outburst, despite Washington’s general presumption in those days that parties were off the record.

  Whether Warren called Mazo a liar or just incompetent, whether he raised his voice or spoke through gritted teeth, the argument demonstrated more about Warren’s state of mind than it did about the book. Warren prided himself on self-control, and on that June evening, after so many indignities, after the irritations of Frankfurter, the slights of Eisenhower, the defiance of racists, the campaigns of anti-Communists, the rumblings of old and new congressional foes, and now, God forbid, the resurrection of Richard Nixon, Warren blew. And, of course, the controversy only served to sell Mazo’s book and promote the candidacy of Richard Nixon. Warren was lost.

  He left that summer in a funk, brooding over the aimlessness of his Court, unsure of what the coming year would bring. Earl Warren was sixty-eight years old. He had governed California in triumph and had righted the nation’s moral purpose in his early years on the Court. But what was next for him? He fell back on routines—travel that summer, the World Series in October, social graces with the Court in the fall. Every member of the Court was invited to dinner at the Warrens’ in late October. Everyone but Frankfurter came.105

  And then, as suddenly as the Court had been frozen and Warren trapped into inaction, so did those constrictions begin to thaw. In February 1958, Learned Hand had shocked the Court with his erudite denunciation of its work and his snide allusion to Warren and his colleagues as “Platonic Guardians.” Two Februaries later, a new wind blew through American life, this time not the hard gale of one of its most esteemed legal minds but rather the freshening breeze of a group of North Carolina college students who had been pushed too far.

  AT FOUR P.M. on February 1, 1960, four young black men, all students at North Carolina A&T College, wandered into the Main Street Woolworth’s in Greensboro, North Carolina. They shopped for a few minutes, mingling with black and white customers, and then made their way to the all-white lunch counter. They sat down and tried to order. They were ignored. The minutes ticked by as puzzled, anxious customers and employees eyed their silent act of disobedience. At five P.M. the counter closed. The students left, having never been served.

  The following morning, they were back. Accompanied by sixteen classmates, they arrived at ten-thirty, sat down, and waited for service. Whites came and went, eating or drinking as they chose. The black men sat quietly, still ignored even in the middle of the mounting disturbance their presence was creating. One of them, Ezell Blair, Jr., promised a long winter for the Woolworth’s if it did not reconsider its position on serving blacks. “It is time for someone to change the situation,” Blair told the local newspaper. “We decided to start here.”106

  Within weeks, sit-ins were being staged across the South, as the tactic democratized the campaign and replaced litigation with mass action as the movement’s most compelling strategy. Uncoordinated by any central group, sit-ins allowed energetic and brave black men and women to take their fortunes into their own hands. Hundreds eventually would. And the results were gratifyingly immediate: On July 25, just six months after the four “first-dayers” sat down at the counter and were ignored, the Greensboro Woolworth’s served the first black customer in its official history. The tremors of the movement shuddered outward from the South and into that year’s national political campaigns. In Boston, young Senator John Kennedy took note. So, in Washington, did Richard Nixon.

  And so, too, did Earl Warren. A Nixon presidency represented the most dangerous of all possibilities for the Warren Court. It would replace Eisenhower with a president at least as conservative as the current one, and where Eisenhower nominally appreciated Warren in personal terms—he had, after all, nominated him—Nixon resented him personally as well as politically. Moreover, Nixon was crafting a new Republican Southern strategy th
at held ominous implications for relations with Warren and his Court. Aimed at breaking the Democratic hold on those states, it depended on linking Southern white Democrats with Northern white Republicans—a bond built in part out of their common anti-Communism and support for a robust patriotism at home and abroad. Kennedy’s coalition was far less threatening to the main pillars of the Warren Court’s jurisprudence. Its key constituencies included union members, racial minorities, big-city bosses and their followers, and enough die-hard, yellow-dog Southern Democrats to hold off Nixon’s appeal to them on ideological terms. Warren preferred Stevenson. He could live with Kennedy. He could not stand the idea of Nixon.107

  The Kennedy-Nixon contest of 1960 was one of history’s great campaigns, a clash that Kennedy wisely framed as generational and that featured a historic realignment in the place of blacks in American politics. The Warren Court loomed large in its backdrop, as the nation continued to debate the principle of desegregation, a matter brought again to the forefront by the sit-in movement. For the most part, both candidates gave civil liberties a fairly wide berth. Pushed by New York governor Nelson Rockefeller—and over the objections of Barry Goldwater and other conservatives—Nixon persuaded the party to adopt a more expansive civil rights platform but otherwise said little about the issue, hopeful as he was of luring conservative Southerners to his ticket.108 Kennedy straddled, too, in order to avoid antagonizing either wing of his inchoate coalition.

  Once Kennedy and Nixon had their nominations, the race introduced new wrinkles. Campaigns always do. Henry Cabot Lodge, Nixon’s vice presidential running mate, surprised his own team by promising that Nixon would put a black in the cabinet. Kennedy’s selection of Johnson as his running mate disappointed liberals and raised questions about the candidate’s commitment to civil rights. Johnson’s record there was mixed: He did not approve of Brown v. Board when it was first announced (“Like you, the Supreme Court decision left me shocked and dismayed,” he wrote one constituent109). But his ambitions had driven him to the Court’s defense against conservative assault in 1958. He had not signed the Southern Manifesto, but that, too, was evidence more of ambition than of principle. Still, Johnson’s addition to the Kennedy ticket, if confusing as a matter of principle, was clear as one of politics. With Johnson on the ticket, Kennedy believed he could carry the key state of Texas and perhaps some other Southern states as well. To pull that off, roiling the waters on behalf of Negroes was not part of the Kennedy campaign plan.

  Just weeks before Election Day, the efforts of both campaigns to steer clear of civil rights were challenged by what at first seemed a noteworthy but not critical matter. On October 19, with Election Day less than a month away, Martin Luther King, Jr., set aside weeks of agonizing and joined a sit-in at the Rich’s department store in his hometown, Atlanta. He had not particularly wanted to be part of the demonstration but had finally been persuaded by the student organizers that his participation was vital, since the event was taking place in his hometown and since Rich’s, an icon of middle-class Atlanta, was such a prominent target. After being denied service at Rich’s lunch counter and in its upstairs, fancier restaurant, King and the other protesters were arrested and taken to Fulton County jail. Negotiations then ensued to spring the culprits, but in King’s case, they were complicated by an old traffic case in which he had received a suspended sentence, terms of which the judge, Oscar Mitchell, now said were violated by King’s participation in the sit-in. After a hearing at which King arrived shackled and manacled, Mitchell revoked the suspended sentence and ordered King to spend four months at hard labor. Mitchell also denied King the chance to post bond. King, that same night, was rousted from his bed by jailers and shipped, again in handcuffs and shackles, to the maximum-security prison at Reidsville.110

  For Nixon and Kennedy, King’s arrest offered opportunity and risk. Here was an icon of the movement, imprisoned in one of the Confederacy’s most terrifying prisons, denied bail in what was in effect a traffic case, for which he would labor on a chain gang in obvious peril to his safety. Whatever one’s beliefs on civil rights, this was a human story of national and international scope. And yet neither candidate wanted this: Nixon still held out hope of carrying a handful of Southern states; Kennedy needed those same states and could not afford to antagonize his allies among the Southern Democratic leadership. So the candidates tried to stay quiet. Jackie Robinson, campaigning for Nixon, deplored King’s incarceration, but Nixon himself rejected appeals from aides to say something publicly in defense of King.111 At the Eisenhower Justice Department, Lawrence Walsh, later to gain fame as the special prosecutor in the Iran-Contra case, drafted a statement urging King’s release, but did not complete it until the episode had passed; in any case, neither Nixon nor Eisenhower would approve the release of the statement with the election so close.112 Kennedy’s aides similarly rejected a public statement on King’s behalf and stirred uncomfortably when Atlanta’s mayor announced that he was working for King’s release at Kennedy’s behest. What Kennedy did agree to do, however, was accede to the urging of Harris Wofford, his civil rights representative, that he place a comforting call to Coretta King, then pregnant and panicked at the thought of her husband in a Southern prison.

  “I know this must be very hard for you,” Kennedy said after being connected with Coretta by Sargant Shriver. “I understand you are expecting a baby, and I just wanted you to know that I was thinking about you and Dr. King. If there is anything I can do to help, please feel free to call on me.”

  Coretta replied, “I certainly appreciate your concern. I would appreciate anything you could do to help.”113

  The call infuriated Bobby Kennedy, who accused Wofford and Shriver of going behind his back and endangering his brother’s chances in the delicately balanced South. But it largely escaped white attention even as it powerfully spoke to blacks. King’s father, Daddy King, was a lifelong Republican. When Judge Mitchell relented and let King out of prison a few days later, Daddy King was there to take his son home. Greeted by fellow protesters, Daddy King publicly expressed the family’s gratitude for Kennedy’s call. “I had expected to vote against Senator Kennedy because of his religion,” King said. “But now he can be my President, Catholic or whatever he is.”

  Kennedy was amused at Daddy King’s bigotry. “We all have fathers, don’t we?” he joked to Wofford later.114 Unlike his father, Martin Luther King, Jr., would never endorse Kennedy, but the Democratic nominee’s call to Coretta rippled through the black electorate, aided by Wofford’s daring decision to publicize it, without Kennedy’s knowledge, through a hastily assembled blue pamphlet, known thereafter as the “blue bomb.” On Election Day, an estimated 250,000 blacks voted for Kennedy in Illinois; he carried the state by 9,000 votes. In Michigan, 250,000 blacks cast their votes for Kennedy, and he won by 67,000. And in South Carolina, where Nixon had been headed at the time of King’s forced trip to Reidsville, 40,000 blacks voted for Kennedy; he took the state by 10,000. The call to Coretta can plausibly be said to have placed John F. Kennedy in the White House.

  No person was happier at the outcome than Earl Warren. Nixon and Eisenhower were gone, off to contemplate the nation’s rejection of their legacy and campaign. Sweetening the victory was the nature of Kennedy’s election. Not only was a new president in office, but the efforts of black voters, those whose interests Warren and the Court has so assiduously protected, were in no small measure responsible for the outcome.

  As the year drew to a close, Warren’s personal fortunes improved as well. Virginia Warren, the beautiful young woman who was Warren’s eldest daughter, set aside her long and boisterous dating life—one that had included political luminaries and business tycoons—and married John Daly, a confident journalist and television talk-show host. Earl and Nina were thrilled. They both liked Daly, who was more conservative than Warren but not in the least intimidated by him. His union with Virginia would usher in a new tone to Warren family gatherings, as Daly and Earl Warren cheerfully argu
ed issues of the day—though never the business of the Court—generally concluding with a clap on the arm or a playful roll of the eyes.115 Virginia’s choice of him as a husband would warm and complete the Warren family, and they celebrated the occasion by hosting a lavish wedding in their West Coast headquarters, the Fairmont Hotel in San Francisco. Ben Swig, the Warrens’ friend and the owner of the Fairmont, was delighted to have the affair at his flagship hotel, and afterward complimented Warren on the event—even after giving Warren a friendly discount, Swig acknowledged that the “bill was high enough as it was!”116

  At the Court, the year closed on a happy note as well. Jesse Choper, one of Warren’s clerks that year and on his way to becoming one of the nation’s most esteemed legal scholars, struggled that fall with the case of a young black law student who had been headed home to Alabama on a bus from Washington, D.C. The bus left in the evening and the student, Bruce Carver Boynton, got off in Richmond, Virginia, to get a bite to eat. Inside the bus terminal, he found a restaurant, but it was divided into “white” and “colored” sections. The black section had not been recently cleaned, while the white section had. Boynton, the son of civil rights activists and soon to be a lawyer, knew his conscience and so he sat down in the white section, and ordered a cheeseburger and tea. He had not planned to make a protest out of that act, but the waitress ignored him and then the manager appeared at his table. “Nigger,” he told Boynton, “move.” “That,” Boynton recalled more than fifty years later, “resolved it.”117 He refused to budge, an officer was called, and Boynton was arrested, tried, convicted, and fined $10 for staying on the premises after being ordered to leave.118