by Jim Newton
The Birch Society campaign was both irrelevant and historic. At no point did it reach anything close to the support required to bring articles of impeachment against Warren, so its threat was abstract. Nevertheless, its breadth and duration revealed the intense animus that the Court inspired in those years, and even if that animus was confined to a segment of American society, that segment was large enough to sustain itself and angry enough to go on year after year.
Warren always professed to be unaffected by the Birch Society, but those close to him dispute that, and even he conceded that it took a toll on Nina. Some clerks from those years remember the grim tightening of his jaw, the cold stare, the abrupt end of pleasantries when the subject of “Impeach Earl Warren” was raised. Still, when one clerk, Doug Kranwinkle, called Warren’s attention to a sign that read “A Man’s House Is His Castle: Impeach Earl Warren,” the chief justice tossed it off.23 Warren suppressed his irritation, to be sure. He knew better than most that to respond to a political adversary was to elevate that adversary. Had Warren engaged the Society, its leaders would have enjoyed a platform with the Chief Justice of the United States, rather than on the kooky margins of American politics. Instead, he rationed his fire, betting that the threat would fade. “I recognized it for what it was,” Warren wrote, “an expression of dislike on the part of vested interest groups who were offended by the Court’s interpretation in various cases that came before us.”24 Years later, with the campaign over, hints of Warren’s irritation and amazement crept through. “In all my years in politics in California, I had never been subjected to any such treatment,” he noted.25 Of the campaign against the Court, Warren conceded, “The organization, using the device of making people hate some group by blaming that group for the ills of the nation, as Hitler blamed the Jews in Germany, chose the Supreme Court as the object of its attack.”26
While Warren did his best to ignore the Society, he cheered those who took it on, especially in the press. In 1960, management of the Los Angeles Times passed to Otis Chandler, and he signaled the arrival of responsible journalism at that paper by its publication in 1961 of a five-part series on the Society. The series began on March 5, and it profiled the Society in careful, balanced articles all week. Conservatives used to seeing the Times as their defender were puzzled, and then, with the publication of a Sunday editorial authorized by Chandler himself, furious: “The Times,” the editorial ran, “does not believe the argument for conservatism can be won—and we do believe it can be won—by smearing as enemies and traitors those with whom we sometimes disagree. Subversion, whether of the left or the right, is still subversion.”27 Under Otis Chandler’s oversight of the Times, it shed its disreputable past and ushered in a remarkable journalistic era for the paper. It did not, however, sit well with all his family. Philip Chandler, his uncle, waged a behind-the-scenes attempt to discredit Otis in the wake of the Birch Society stories. Writing to Norman Chandler—Philip’s brother, Otis’s father, and a longtime friend and supporter of Warren—Philip warned of the paper’s lack of appreciation for the threat of Communism. Closing his letter, Philip noted, “No one can deny the fact that the danger of Communism (not to mention the trend toward Socialism in the U.S.) is the No. 1 problem of the free world.”28 Responding, Norman Chandler thoroughly scolded his brother for his attack on the paper and invited him to present his criticisms “face to face.”29 There is no record of whether such a meeting occurred.
Up the coast in Santa Barbara, the publisher of that city’s paper launched a campaign of his own against the Society and in defense of Warren, an old friend. Tom Storke’s editorials infuriated the Society, whose followers hanged him and Warren in effigy in that city’s stately downtown. Storke’s work secured the only Pulitzer Prize in the history of the Santa Barbara News-Press. Warren delighted in his friend’s courage.30
Support from newspapers and old friends helped soften the Birch Society’s campaign. In time, the Society’s campaign against the Warren Court became more curiosity than threat. Yet the fringe right wing, as exemplified by the Birch Society, never let go of Warren. Typical is his entry in the Biographical Dictionary of the Left, which portrayed Warren as a “compulsive publicity seeker” with a “strange” code of ethics and “contempt for the division of powers.”31
WHEN FORCES gathered against the Warren Court in Eisenhower’s years, he let them have their way and occasionally even encouraged them—an obfuscation here, an outburst there. With Kennedy in the White House, however, Warren acquired an ally. Kennedy’s open support for the landmark rulings of the Court during his brief presidency—and his careful, dignified handling of Warren himself—deprived the Court’s critics of even implicit support from the White House. Nowhere was that more evident than in the response to the Warren Court’s second great blockbuster opinion, exceeded in historic significance only by Brown itself and, in the estimation of Warren, even more important than that.
By the 1950s, voters in Tennessee had exhausted their options for trying to reform that state’s voting rules. They pleaded with the legislature and argued with the governor, to no avail. The state had no mechanism for popular initiative, and the officials who had been elected under its voting rules understandably defended those rules against those who were hurt by them. Finally, having lost patience with their political representatives, the marginalized voters filed a lawsuit in federal court. Their argument was simple: The state’s practice of allocating representatives by county meant that sparsely populated areas were overrepresented at the expense of growing urban areas. That, they said, denied equal protection of the laws to those Tennessee voters whose votes in effect counted for less than those of others. The Fourteenth Amendment, they contended, guaranteed them that equal protection—and not coincidentally, the effect of its denial in their state was to ensure that white rural voters continued to have more power than black urban voters, even as urban areas grew.
This was not a problem that had troubled Warren as governor of California. When labor groups had sponsored an initiative in 1948 to redistribute California’s voting power along population lines, Warren opposed it. The racial implications of the state’s voting system were not the issue in that campaign, so there is no benchmark of Warren’s consideration of that question. What is clear is that in 1948, California’s voting rules worked to elect Warren, and since Warren saw himself as a good and progressive governor, he saw no reason to amend those rules. Reflecting on it later, Warren realized he was wrong, and made no attempt to justify himself. “It was,” he recorded in his memoirs, “frankly a matter of political expediency.”32
As chief justice—and, moreover, as a chief justice who by 1960 was all too familiar with the use of legislative power to thwart minority interests—he understood the question of voting power differently. The Tennessee case, Baker v. Carr, first came to the Court in 1960, and at their initial conference to discuss it, the justices moved to their now familiar positions. “Justice Frankfurter unleashed a brilliant tour de force,” Brennan’s clerks recorded, “speaking at considerable length, pulling down Reports and reading from them, and powerfully arguing” that the Court should steer clear of what he framed as essentially a political conflict.33 In Frankfurter’s view, the Court already had foreclosed the area of legislative districting with its decision in Colegrove, a 1946 opinion that turned down a challenge by Illinois voters who complained that congressional districts in that state were unfairly distributed. In his opinion for a shorthanded Court (Black, Douglas, and Murphy dissented; Jackson, who was off in Nuremberg during the consideration of the case, did not participate; and Rutledge concurred, though on grounds that suggested he might have ruled otherwise if faced with somewhat different facts), Frankfurter acknowledged that the disparities between districts were real and objectionable but concluded that the Court should not resolve them. “To sustain this action would cut very deep into the very being of Congress,” he wrote, and then he invoked the metaphor that appeared so often in his writing: “Courts ought n
ot to enter this political thicket.”34 That was hardly a departure at the time of its writing. Through the late nineteenth and early twentieth centuries, the Court declined time and again to assert authority over certain aspects of American life, even when the rules governing those areas were a part of the Constitution. As a result, Colegrove was amply justified by the precedents that Frankfurter cited in it. “It is,” Frankfurter wrote, “hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.”35
But while that held a Court in 1946, much had changed since then. In the interim, for instance, the Court had considered and decided Gomillion, a lawsuit brought by black voters of Tuskegee, Alabama, who sued after the state legislature there redrew the boundaries of their city, including white neighborhoods but dropping black ones. When they were done, all but four or five of its four hundred Negro voters lived outside Tuskegee and thus were not allowed to vote in its elections. The Court in that case concluded that the Fifteenth Amendment, granting blacks the right to vote, was offended by a scheme deliberately intended to dilute the power of that vote. Frankfurter also was the author of that ruling, which, unlike Colegrove, spoke for a united Court, save a strange concurrence by Whittaker, who joined in the result while inexplicably concluding that the Fourteenth Amendment, not the Fifteenth, protected the right of Negroes to vote.36
So now the question before the Court was whether the complaint of Tennessee’s voters more closely approximated the facts of Colegrove or those of Gomillion—and whether the Court was willing to wade into the “thicket.” The aging Frankfurter unleashed his “tour de force” in defense of restraint. Harlan was with him. So was Clark. Warren, Black, Douglas, and Brennan were not persuaded and unlikely to be. Indeed, by 1960 Warren had become convinced not only that restraint had allowed political inequities to fester but that it had in fact encouraged them.
“Because of timidity,” he wrote, “it made change hopeless.”37 In Warren’s view, restraint as a defect had gone beyond reticence; it had become cowardice. And since Frankfurter was its chief proponent, there can be no question about how far that relationship had sunk.
That left Stewart and Whittaker in the crucible, and with their votes wavering, the case was put over from 1960 into the following term. When it came back, Douglas summarized the view of the liberal justices in one characteristically pithy sentence: “Governed by Gomillion.”38 When Stewart spoke, his ambivalence showed through, as he at length expressed sympathy with the problem presented by Harlan and Frankfurter—the danger of the Court immersing itself in the intricacies of legislative boundary-drawing. In the end, however, he could not stomach the inequities of districts that so blatantly reduced the power of one voter over another. He tentatively sided with the Warren camp, giving it a fifth vote, but his ambivalence made it clear that his vote was not assured. Moreover, Stewart’s desire for a narrow opinion so conflicted with Douglas’s interest in a ringing one that the burden now shifted to Warren: To whom would he assign the opinion, and how would he keep both his most aggressive colleague and his most cautious on the same opinion?
Warren’s work over the ensuing several weeks represented his most important and effective coalition management of the Court since Brown in 1954. He initially contemplated writing himself or assigning the decision to Stewart—one common tactic to assure a wavering justice’s vote is to have him write, thus sealing his position. But Warren worried that Stewart might write in such a way that either Douglas or Black would break from the majority, and he also saw that Frankfurter was burrowing in for an extended opinion intended to break up the majority. After consulting with Black, Warren chose Brennan, Warren’s doctrinalist.39 Brennan’s mission was to write an opinion that could hold its own against that of his former professor; Warren’s was to hold their fragile coalition intact.
Harlan saw an opportunity to peel off votes from the majority, and made a direct appeal to Whittaker and Stewart, urging them to consider not just the merits of the case but the place of the Court in society and history:
I need hardly argue to you that the independence of the Court, and its aloofness from political vicissitudes, have always been the mainspring of its stability and vitality. Those attributes have been assured not alone by the constitutional and statutory safeguards which surround the Court, but also to a large extent, I believe, by the wise restraint which, by and large, has characterized the Court’s handling of emotionally-charged popular causes. I believe that what we are being asked to do in this case threatens the preservation of these attributes.
Let me be as concrete and frank as possible. Today, state reapportionment is being espoused by a Democratic administration; the next time it may be supported (or opposed) by a Republican administration. Can it be that it will be only the cynics who may say that the outcome of a particular case was influenced by the political backgrounds or ideologies of the then members of the Court?40
Harlan sent a copy of his note to Frankfurter, who commended him for having “rendered a service to the Court, whatever the outcome.”41
While they attempted to add to the conservative ranks, Brennan went to work for the liberals, digging deep into the historical and judicial record. Through the winter of 1961 and early 1962, he selectively circulated drafts, mollifying first Stewart, then Douglas. On January 31, 1962, the full Court received his opinion, and Frankfurter was incensed, complaining to Clark that the majority had done just as he had expected all along. Frankfurter then promptly circulated his dissent, and the Court nearly fell apart. Clark and Harlan appeared to join with Frankfurter, Douglas threatened to bolt from the majority, and then Stewart indicated that he too was abandoning the coalition. Into the turmoil stepped the calming Warren. The chief justice, a Brennan memo would recall later, “was Gilbraltorlike [sic] in his support for Justice Brennan. . . . With our ‘two wings’ flying off and no saying where matters might come to rest,” Warren helped restore order .42 Over the next twenty days, Warren sounded out his colleagues, seeking to solidify Stewart, calm Douglas, and talk with Clark. Brennan continued to hope that Stewart would return and that he and Douglas, once his irritation had passed, would provide the fourth and fifth votes needed to assure a majority. Then, in late March, Clark emerged from his study of the matter to declare that he had decided to leave the Frankfurter camp and join the majority. He informed Warren, who called Brennan at home with the news. The phone call, “never to be forgotten,” began with Warren spending the first minutes laughing happily in Brennan’s ear.43
On March 26, Brennan announced the opinion of the Court for a majority that, in the end, included all but Harlan and Frankfurter. There were an array of concurrences and dissents, and the majority opinion by Brennan was encumbered by its exhaustive recitation of the legal history. But it had secured the votes needed to assert that federal courts did in fact have the authority to review and overturn state legislative districts. The Supreme Court did not overturn Tennessee’s lines in Baker, but it sent the matter back to the district court to do so, explicitly authorizing that court to undertake what many had assumed to be a matter purely for legislatures. Warren was delighted, and passed a note to Brennan as the two sat together on the bench that day. “It’s a great day for the Irish,” Warren wrote. Thinking again, he crossed out “Irish,” and wrote, “It’s a great day for the country.”44
It was, however, a trauma for the Court. Both sides had ridden their positions hard, and while Warren prevailed, Frankfurter scorched the earth in defeat. In particular, he thrashed the wavering Whittaker, and Whittaker broke under the strain. With the two sides mounting their final offensives that March, Whittaker considered joining the majority, but Frankfurter relentlessly lobbied him to stay. On March 6, Whittaker, who suffered from depression exacerbated by extreme stress, visited Walter Reed Medical Center for a physical examination, and his doctors warned him that his
health was perilous.45 Whittaker confided his condition to Warren, who, partly out of compassion and no doubt partly knowing that Whittaker’s removal might clear the way to strengthen his own hold over the Court, assured him that he could leave anytime, that his clerks and staff would be cared for.46 When Baker came down on March 26, Whittaker did not participate. His retirement from the Court was effective April 1.
For Frankfurter, Baker was a clear and final defeat. He would never again write a major decision of the Court.
Whittaker’s departure gave Kennedy his first opportunity to alter the composition and tone of the Court. Kennedy initially had his eye on William Hastie, an appeals court judge who would have become the first black man to sit on the Supreme Court. But Kennedy asked his brother Bobby to sound out Warren on Hastie, and Warren “was violently opposed.” According to Robert Kennedy, Warren warned that Hastie was “not a liberal, and he’d be opposed to all the measures that we’re interested in, and he would just be completely unsatisfactory.”47 Douglas also advised against it on the grounds that Hastie was too conservative.48 Kennedy heeded that warning and turned instead to an able deputy from his campaign. Byron White was an extraordinarily diverse and accomplished man, the only member of the National Football League Hall of Fame ever to sit on the Supreme Court and the first Court clerk ever to make it to the bench. Ideologically, the switch of Whittaker to White did not change the Court’s balance, but it brought smoother workings and faster dispatch of cases, as White was far more at ease with the workload and responsibility than Whittaker had been. White joined the Court in April, less than a month after Baker had been handed down.49
