Justice for All

by Jim Newton

  None of those facts is seriously disputed today. Together, they amount to proof beyond any reasonable doubt on the question of who killed President Kennedy and Officer Tippit.

  They are only strengthened by the questions that those who seek to refute them cannot convincingly answer. If Oswald did not kill Kennedy, why did he kill Tippit? If Oswald was innocent, why did he lie to police about owning a rifle? Why did he tell them he had brought curtain rods with him to the Depository that morning? Why did he deny that a picture of him holding a rifle in one hand and the Daily Worker in the other was real, when his wife clearly remembered taking it, others remembered seeing it, and scientific evidence confirmed it was taken by his camera? If a conspiracy killed President Kennedy, why has no evidence of such a conspiracy ever surfaced, and why have those who believe in that conspiracy been forced to resort to deceit and obfuscation in order to argue for it?

  There was no reasonable evidence in 1964 that anyone helped Oswald carry out those murders or covered up for them afterward. There is no such evidence today.

  For many, Earl Warren’s chairmanship of the Warren Commission would stand as the most momentous act of his large life. And for those inclined to see conspiracy in the Kennedy assassination, the Commission’s report has marked Warren as a dupe or even a fraud. Even some of his admiring biographers have tended to view the Warren Commission as an aberration from a grand career, a blemish standing alongside Warren’s advocacy of the Japanese internment. The criticism of Warren for abrogating the rights of those Japanese and Japanese-Americans is more than upheld by history. But the attack on his Warren Commission service is manifestly unfair, as time and sober reflection have made clear.

  The Warren Commission was not perfect, nor was its chairman. But they were right.

  Chapter 23

  AN ENFORCED CODE OF DECENCY

  Once loosed, the idea of Equality is not easily cabined.

  ARCHIBALD COX, WRITING OF THE WARREN COURT1

  Is it fair?

  EARL WARREN

  WARREN SET OUT in the fall of 1964 a weathered and tired man, but he cast off his problems and strode into the epic that would define the Warren Court as history remembers it. He had his votes inside the Court and his protection outside it. A Democratic president occupied the White House and used it to advance the principles that Warren trumpeted from the Court; a Democratic Congress occasionally balked but often, in the end, acquiesced. Over that time, the Court would stake out and clarify its revolutionary principles of jurisprudence and of American society, only rarely in the face of serious opposition. What emerged from the years of the middle 1960s was the clearest expression of Warren’s America, the America that he had spent his life fashioning and that he now had the license and authority to recast in his terms.

  In those years, Warren’s insistence on racial equality evolved into a sweeping commitment to egalitarianism. His faith in voting rights grew from a belief in the franchise to a conviction that the ballot was the device by which Americans secured not just their political identity but their access to the swelling benefits of a generous government. And Warren’s experiences as a prosecutor, governor, and justice now crested in a conviction that fairness required a redesigned criminal justice system. In all those areas, the Warren Court from 1964 to 1969 would forge a new America, and in every one, Warren led the way forward.

  Only in one of the Court’s pioneering fields of that period did it move without Warren’s leadership. When it came to speech and expression, Warren’s thinking was dominated by his lifelong discomfort with obscenity—an artifact of his Progressive-era deprecation of vice. Moreover, after nearly a half century of public life, Warren had seen plenty of bad, intrusive reporting, and he could not bring himself to sanction it any more than he could stomach the actions of pornographers. In the area of expression, Brennan would lead the Court, and not always well. In all others, the Warren Court was in fact Warren’s Court.

  No sooner had Warren gaveled the Court back into session for its 1964 term than it turned to the familiar area of racial segregation. This time, however, the Court’s allies had made its burden far easier to carry. Johnson’s successful pursuit of the Civil Rights Act of 1964 barred racial discrimination in places of public accommodation, and now this act, not the Court, had the lead role in striking discrimination. There would not be the confusing and bitter debate over sit-ins as in the previous term; the Court now had merely to assess the constitutionality of the act. Two cases, Atlanta Motel v. United States and Katzenbach v. McClung, came before the Court on October 5 and framed the issues. The Heart of Atlanta was a 216-room hotel along an interstate highway, and its owners preferred to serve whites. McClung was the owner of Ollie’s Barbecue in Birmingham, which had sit-down dining for white customers but only take-out for Negroes. McClung too liked running a segregated establishment, even though most of his employees were black. Clark wrote for a unanimous Court in both cases and concluded that Congress’s right to regulate interstate commerce gave it authority to desegregate even a Birmingham rib shack. Ollie’s got forty-six percent of its meat from a local supplier who got it from out of state. That was enough.2

  The Court dispensed with those cases easily, but the first term of Warren’s post-Warren Commission service would forever be marked by one case and, at its conclusion, by a change in personnel. The case that would define the term—and that would set the rules for one of the twentieth century’s most contentious Supreme Court decisions—was launched with a bit of mischief on Warren’s part.

  William Douglas, then sixty-five, had married twenty-three-year-old Joan Martin in the summer of 1963. By the fall of 1964, the Douglas-Martin union, barely a year old, already was suffering the fate of its predecessors.3 And so when the Court was presented that term with a case that called for the justices to consider the sanctity and privacy of marriage, Warren gave it to Douglas to sort out.

  The case before the justices arose out of an anachronistic Connecticut law. Under that 1879 statute, any person using a contraceptive to prevent conception was guilty of a crime and faced a fine of at least $50 or imprisonment of two months to a year. Any person who helped another to commit the crime of using a contraceptive was identically guilty and faced the same punishment.4 In November 1961, Connecticut authorities arrested Estelle Griswold, director of the state’s Planned Parenthood organization, and Lee Buxton, medical director of a clinic in New Haven that dispensed contraceptives. They were fined $100 apiece. Appealing those convictions, the defendants brought their case to the United States Supreme Court, urging it to void the law as unconstitutional. It was Dr. Buxton’s second trip to the Court on that issue, having tried and failed to persuade the justices to strike down the law in 1961, when the Court found that because the law was not being prosecuted, there was no issue properly before it. By forcing the state’s hand and engineering their own arrests, Griswold and Buxton now had a genuine issue for the Court to consider—a “ripe” one, in the vernacular of the law.

  None of the justices liked Connecticut’s antiquated statute, but finding it unconstitutional was another matter. Douglas took his first crack soon after the argument, and his boredom with his work shone through his first draft. Douglas had based his rejection of the Connecticut law on the theory that it infringed a First Amendment right, in this case the right of association, which he said marriage constituted and thus deserved the same protection as political association. He showed an early draft to Brennan, who was, according to his clerks, “somewhat alarmed.”5 Brennan urged Douglas to consider that the right being violated by the Connecticut law was not that of association but of privacy. The Bill of Rights, Brennan emphasized, was full of privacy protections. Griswold gave Douglas an opportunity to consider these protections as a group, and Brennan urged him to try.6 And Douglas, in a rare moment of receptivity to criticism, did agree to try again.

  His second effort was hardly less controversial, but it had the creativity and the intellectual energy of which Douglas was ca
pable. Drawing now not just on the First Amendment but on an elastic—some might say inventive—reading of the entire Bill of Rights, Douglas discovered a right of privacy that pervaded those restrictions on the government. The First Amendment, he wrote, protected not just purely political associations but social, legal, and economic ones as well; the Third Amendment prohibited the government from quartering soldiers in private homes; the Fourth Amendment, perhaps the most specific about ensuring privacy, demanded that citizens be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”; the Fifth Amendment’s protection against self-incrimination in criminal proceedings built a wall of privacy around an individual being questioned by the government; and the Ninth Amendment sought to ensure that even rights not specifically enumerated in the Constitution were retained by the people.7 Douglas’s analysis was ambitious but not without foundation. No less a conservative than Harlan recognized that the concept of “privacy” was essential to the Constitution’s reliance on “ordered liberty,” and found that the “Constitution protects the privacy of the home against all unreasonable intrusion of whatever character.”8

  It is thus false, as some have asserted, to say that Douglas invented privacy out of whole cloth. In Mapp v. Ohio, for instance, the Court had struck down the admission of illegally seized evidence in state trials. Finding that such illegal seizures violated the Fourth Amendment, the Court insisted that “the right to privacy” was “no less important than any other right carefully and particularly reserved to the people.”9 Now, however, Douglas proposed not to apply a right of privacy to an area already identified in the Constitution—protection against search and seizure, in the case of Mapp—but rather to marriage, an institution never named by the Framers and only sporadically honored by Douglas himself. Moreover, the right of privacy upon which Douglas relied existed not in any specific amendment but rather in his imaginative reading of all of those amendments together.

  Douglas may or may not have cared what scholars would say of his work. Given what is recorded of him, it seems likely that the opprobrium of the academy would not have entered his thinking. His opinion reflected his expansive view of what the Constitution granted the nation. In Douglas’s words, the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”10 Those emanations might be vague, but they provided real protections. And having read those shadowy zones into the hard body of the Constitution, Douglas then closed with a snorting dismissal of the police state—one where officers might root around in the bedroom for evidence of contraception—and with a herald to marriage that can only have amused his brethren:

  We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.11

  Warren’s clerk that year, John H. Ely, would go on to an illustrious academic career. In light of that and of Griswold’s later significance in American politics, it is thus worthy of note that Ely strongly urged Warren not to join Douglas’s opinion. None of the amendments cited by Douglas, Ely noted, “sets up a general ‘right to privacy.’ ” Moreover, even if such a right existed, Douglas never explained how the Connecticut law violated it. “The simple answer to this is that if and when the police undertake such searches [for contraceptives, evidence that the law was being broken], courts can get rid of them under a provision which does appear in the Constitution—the safeguard against unreasonable searches.” Ely knew that Warren liked unanimity but added that in his view, “this opinion incorporates an approach to the Constitution so dangerous that you should not join it.”12 Nevertheless, Warren joined Douglas’s opinion as well as those of Goldberg and Brennan, who similarly joined Douglas but also wrote separately to give emphasis to the special language of the Ninth Amendment, with its promise that the people retained rights not specifically enumerated in the Constitution. The Ninth Amendment, rarely relied upon, was an appealing one for Warren and his fellow liberals, as it seemed to offer little restraint on what rights the justices could apply. “The Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive,” Goldberg wrote.13 Black, predictably, disagreed: If a right was not named in the Constitution or the Bill of Rights, he would not find it there. He and Stewart dissented, though even they had to admit the Connecticut law was “every bit as offensive” to them as to the others.14

  Griswold was among Douglas’s most consequential contributions to American law and life. It would become a foundation for Roe v. Wade in 1973—when the Court, under the leadership of one Nixon appointee, Warren Burger, and in an opinion written by another, Harry Blackmun, would find that, within certain medical limits, the “right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”15 Few would ever accuse the Burger Court of liberal activism, but because Roe depended on Griswold, Griswold would be embroiled in America’s exhausting, vicious abortion debate. It came to stand as a symbol of the Warren Court’s adventurism in the field of Constitutional interpretation. Forty years after Warren assigned it to his philandering colleague, Griswold remained a monument of the Warren Court, in fact and in image. For Douglas, it was another day at the office, and a not particularly memorable one at that. In his memoirs, the justice never mentioned the case. When the Court broke for its summer vacation, Warren teased Douglas about the ruling. “Dear Bill,” he jotted in a handwritten note. “Keep our Penumbra flying all summer!”16

  Griswold was the defining case of a peaceful term. Not once in the Court term beginning in October 1964 did Earl Warren dissent from the majority, a far cry from the closing years of the 1950s, when he had refused to soften his principles in the face of nervous colleagues or congressional pressure. But the term’s other moment of long-standing consequence occurred after Court recessed for the year in the summer of 1965. For Warren, it was a double tragedy, though the full effects of it would not become clear to him for some time.

  The first act in that sad series of events began incongruously, with Warren and three old friends out for a morning of fishing in San Francisco Bay. It was a Saturday in July, and Warren was home for his annual refreshment in The City. The friends dipped lines into the same waters that Warren had crossed upon arriving in the Bay Area in 1908. More than a half century later, Warren was far from the young boy who stared in awe at the rebuilding of San Francisco from its earthquake. With him in the boat on this Saturday morning in 1965 were Pat Brown, then at the height of his governorship; Ben Swig, the conscientious and well-connected hotelier from San Francisco; and Adlai Stevenson, the grand and respected diplomat, even then attempting to negotiate peace in Vietnam from his post as ambassador to the United Nations. The businessman, the governor, the ambassador, and the chief justice fished and talked, and then Stevenson left for a date with Meet the Press. Four days later, Stevenson dropped dead on a London sidewalk.17

  “We are shocked and heartsick,” Nina Warren wrote, “can’t believe he’s no longer with us.”18 Earl Warren and Adlai Stevenson came from different parties, and in one sense Warren owed his position to Stevenson’s defeat in 1952, since Eisenhower’s victory required Stevenson’s loss. As Warren had drifted from Eisenhower, however, he and Stevenson had grown closer, and by 1965, whatever differences they had harbored were long behind them. Stevenson’s death robbed the nation of a dignified advocate for peace, and it took from Warren a contemporary, a traveling companion, and a friend—part of the social circle that
included Drew Pearson and Agnes Meyer. On July 19, Earl and Nina traveled to Illinois to honor their friend. They met the party of President Johnson in Bloomington for the service, and there heard Stevenson eulogized in the poetry of Tennyson, imagining a world of the future in which we “Hear the war-drums throb no longer, / See the battle flags all furled, / In the parliament of man, / The federation of the world.”19

  Stevenson’s death was sad by itself, but it also would set off a series of events with far-reaching consequences for Warren and the Court. Suddenly without an ambassador to the United Nations, Johnson went shopping for one, and he quickly lighted upon Warren’s junior colleague, Justice Arthur Goldberg. In Goldberg, Johnson had the opportunity to accomplish two objectives at once, sending to the United Nations a brilliant successor to the revered Stevenson and opening a vacancy on the Court for him to fill. Sensing the opportunity, Johnson invited Goldberg to attend the Stevenson funeral and made sure that he would accompany the president on Air Force One. At the funeral, Goldberg sought out Warren and told him there was talk—still apparently not from Johnson himself—of appointing Goldberg to the United Nations post. Goldberg assured Warren that he was “rather inclined against it.”20 Warren urged his younger colleague to stand fast, saying he would hate to lose him from the Court. But Goldberg had yet to face Johnson directly on the topic, and as Warren well knew, holding off a determined Johnson was something few men could do.

  After the funeral, Warren returned to California, but Goldberg reboarded Air Force One, and Johnson gave him the treatment. Goldberg would long deny that Johnson “twisted his arm,” but that is in the elbow of the beholder.21 What Johnson did was what he did so well—find Goldberg’s weak spot and exploit it. Johnson sniffed out Warren’s patriotism, and Warren ended up the chairman of the Warren Commission. In this case, Goldberg was a sophisticated and extraordinarily intelligent man, a deft negotiator and, though relatively new to the Court, already showing signs of becoming one of its great justices. But his weakness was vanity, and Johnson went for it. “I had the feeling, on the basis of what was developing, that we were going to get enmeshed in Vietnam,” Goldberg said. “I also had the egotistical feeling, based on my long experience with government and private life as a person who could influence policy, that I could influence the President to not get overly involved.” 22 Goldberg resigned his seat on the Court one week later.