by Jim Newton
The president’s withdrawal from the 1968 campaign and King’s assassination occurred within a single week. Just as the nation absorbed those events and the riots in April, it was struck again. Bobby Kennedy, Johnson’s longtime nemesis, had entered the presidential campaign late but had come on strong. By June, he had momentum building toward a likely Democratic nomination for president and thus a Kennedy rematch of sorts with Nixon, who was making headway toward his party’s nomination that spring as well. On June 4, California Democrats selected Kennedy as their candidate for president. At the Ambassador Hotel in Los Angeles, he accepted the victory just after midnight on June 5, then headed for the exit through the kitchen. There, Sirhan Sirhan, a twenty-four-year-old Arab immigrant infuriated by Kennedy’s support for Israel, confronted him with a .22 pistol and fired it over and over into the senator’s head and body. Surgeons at Los Angeles’s Good Samaritan Hospital attempted to save him but could not. Kennedy, forty-two years old, died on June 6. His younger brother, Ted, eulogized him and put him in the ground that Saturday night, buried by candlelight near his brother the president.
It was against that backdrop and in the face of that violence that Warren put the final touches on Terry v. Ohio. The opinion reflected the strains on Warren. One cannot read it without being struck by its caveats, its revealing “howevers” and “on the other hands.” In the end, it upheld the search and deferred to Detective McFadden’s experience in order to allow him and other police officers to act to protect themselves and the public from harm, even if it meant patting down suspects based on little more than a hunch. As Lucas Powe notes, it is difficult to imagine Warren’s writing such a decision only two or three years earlier. The same chief justice who had outraged police with Miranda handed them wide latitude and power with Terry. In light of the events of 1968, however, it is difficult to imagine such a practical, political man writing otherwise. Indeed, left to his own devices, Warren almost certainly would have gone further to defend the police. Brennan pulled him back, and only Douglas, who had commended Brennan for his influence on Warren’s opinion, nonetheless dissented. With gravity and eloquence, Douglas warned the Court to ignore its critics and exclaimed his individualism:
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.153
Terry v. Ohio was handed down on June 10, 1968. The following morning, Warren made up his mind about a matter that he had been considering for some time. At the Court, Warren pulled Fortas aside and asked him to make a call for him; the chief justice said he needed to speak with the president. Fortas, with his direct line to the White House, agreed. Johnson asked Warren to come by the next day.154
As long as Bobby Kennedy was in the race, the Democrats had a chance to hold on to the White House—Bobby would never be Warren’s favorite, but he promised continuity on racial justice and progress elsewhere. In April, with Bobby in the race, Black urged Warren to hang on; Warren gave no indication that he would leave.155 But now Bobby Kennedy was dead, and the Democratic Party was in confusion. Nixon—always Nixon—was in line to win the Republican nomination and thus stood the real chance of becoming president. Warren was seventy-seven years old, and had battled occasional heart troubles. Though his health was fine again in mid-1968, he could not go on indefinitely. And the prospect of a Nixon presidency meant that he would have to hold on for at least four years—perhaps eight—if he were not to hand over his seat to his old enemy. The sand was running from the glass of the Johnson administration. Soon Congress would be gone for the summer and then the fall session would be overshadowed by the campaigns. Warren knew he needed to act quickly. That Thursday morning, Warren met privately with Johnson for twenty minutes, two aging men bound by the political imperatives of the moment. The time had come, Warren said, for him to retire as Chief Justice of the United States.
Chapter 24
THE END
I like to think that the spirit of Earl Warren is abroad in this land, quickening the conscience of our people.
WILLIAM O. DOUGLAS1
WARREN’S RETIREMENT from the United States Supreme Court took the form of two letters, both delivered to Johnson at their June meeting and then held by the president as he considered his response. The first consisted of a single sentence, in which Warren advised Johnson of “my intention to retire as Chief Justice of the United States effective at your pleasure.”2 The second was more expansive. It detailed Warren’s reasons for leaving, or at least those reasons that he felt comfortable disclosing. He began by asserting that he was leaving at a time of his choosing. He was not sick, Warren stressed, nor was he unhappy in his job. “My associations on the Court,” he wrote, “have been cordial and satisfying in every respect, and I have enjoyed each day of the fifteen years I have been here.” The only issue, Warren insisted, was age, and it was “one that no man can combat. . . . I have been continually in the public service for more than fifty years. When I entered the public service, 150 million of our 200 million people were not yet born. I, therefore, conceive it to be my duty to give way to someone who will have more years ahead of him to cope with the problems which will come to the Court.”3
Warren’s letter was true as far as it went, but it stopped well short of candor. Warren had given no sign of wanting to leave so long as Lyndon Johnson or Robert Kennedy might be there to replace him in the coming term. Only when Johnson was out of the race and Kennedy was murdered did retirement seem so appealing. And only when Richard Nixon was the probable next president of the United States did Warren submit his retirement—even then agreeing to leave at the pleasure of the incumbent and thus implicitly threatening to stay if the Congress would not move quickly to appoint his successor. Warren would always deny that he timed his retirement to keep his vacancy out of Nixon’s hands, but those close to him knew better. Drew Pearson, in a piece submitted to Look magazine, wrote that it was “unquestionably” the case that the timing was “strongly influenced by the fact that Nixon may win his campaign for the presidency.” Pearson sent that story to Warren for his approval before publishing; at Warren’s request, he withdrew it.4
At the Court, Warren’s announcement was, naturally, a sobering and sad one. The chief justice took his clerks to lunch that Saturday, as was their custom, and broke the news to them at the University Club. “I felt that I was bearing witness to the end of an era, not only in the life of the Supreme Court, but in the life of the country as well,” Tyrone Brown recalled.5 The brethren took the news hard as well. Warren told Brennan he hoped the president would pick Brennan as the new chief justice, but neither Brennan nor Warren believed that would happen—Brennan was never especially close to Johnson.6 Black, meanwhile, was concerned that Warren would cite his age as his reason for leaving, which would put pressure on Black to step down as well. When Warren’s letter was released, confirming Black’s fear, he slipped into a funk, laboring over his memoirs late into the night and interpreting Warren’s letter and explanation of it as “a dig” at him.7
There was nothing improper about Warren’s attempt to structure his own succession—or about Johnson’s desire to fill a vacancy late in his final term of office. But Johnson’s next moves were to nominate his close friend Abe Fortas to succeed Warren as chief justice and to tap a Texas judge, Homer Thornberry, to fill Fortas’s vacancy. Together, those were provocative steps by a president whose influence was precipitously on the wane. Johnson was warned against trying to do too much—no less than Clark Clifford, the Washington counselor then serving as secretary of defense, advised the president to so
ften the political impact by looking for a moderate Republican to fill Fortas’s seat8—but Johnson believed that no man knew the Senate better than he. Before putting forward the nominations, he secured the support of Richard Russell and Everett Dirksen and relied upon them to neutralize his most obvious opponents, Republicans and Southern Democrats. By the old rules, the rules Johnson had learned as a senator and practiced ever since, that was enough to ensure victory.
But Johnson’s opponents were of a different generation and a different outlook. They were not content to let the leadership impose on the nation two lifetime appointments by a lame-duck president. Even before Warren’s resignation was officially announced—but amid furious Washington rumors that it was imminent—Senator Robert Griffin of Michigan maneuvered to delay action in order to preserve the vacancies for Nixon’s expected victory in the fall. Joined by other Senate Republicans and some Southern Democrats, Griffin made the most of the taint of cronyism. In that context, Warren’s letter was not wrong because it used an improper device—linking the resignation to the confirmation of a successor—but rather because it reinforced the impression that he and Johnson were collaborating to deny the next president, presumably Nixon, his opportunity to affect the Court’s makeup.
Warren’s actions in the days after the announcement also suggested that politics was very much on his mind, no matter how much he sought to deny it. On July 5, after Johnson had accepted his resignation and announced the Fortas and Thornberry nominations, Warren hosted the rarest of Washington rarities, a press conference by a sitting justice of the Supreme Court. He appeared fine and fit—“robust in a dark suit, green tie and California tan,” Fred Graham of the New York Times reported—and he invited reporters to question him in the justices’ conference room.9 He opened by noting that he would not take questions about Court business, but he broke his own rule and commented on his legacy as well as contemporary politics and culture. “We have swept under the rug a number of problems that are basic to American life,” he said. “They have piled up. There must be great adjustment of some kind.” Asked about his Court’s legacy, Warren ranked its most important decisions, starting with Baker v. Carr, then Brown, then Gideon. Warren defended Johnson’s right to nominate his successor and warned conservatives that if Fortas were not confirmed, he would return to his seat. At one point, Warren was asked to identify his most frustrating moments as chief justice. He paused, then smiled and confessed he could not think of one. “It has not been a frustrating experience.”10
The content of the press conference aside, its mere occurrence emphasized Warren’s willingness to engage in the politics of his judicial succession. Justices, even chief justices drawn from the world of politics, do not meet with reporters to discuss matters before the Congress.
Once the nominations were formally placed in the Senate, Fortas’s opponents went to work. There, Fortas became the victim of the Senate’s weariness with Johnson and of the public’s mounting concern about crime and licentiousness, two trends pervasively though tenuously attached to the Warren Court. Those were heavy burdens to bear, but it is possible that Fortas could have succeeded had he not contributed so mightily to his own downfall by the egocentricity that drove him to act as Johnson’s adviser while serving on the Court and by an abiding personal greed that made it hard for him to turn down money. The first attack on Fortas’s nomination was the least convincing: Griffin and other critics of the appointment claimed that by making his retirement effective at the president’s pleasure—and by Johnson’s accepting his retirement upon the confirmation of his successor—Warren had not actually left and therefore no vacancy existed.
Johnson enlisted Warren Christopher, an incisive young lawyer in the Justice Department then in the early years of a momentous career, to take charge of the nomination. Christopher smoothly demonstrated the baselessness of the no-vacancy charge. In fact, there was a long tradition of judges and justices retiring effective at the president’s pleasure, and thus both history and common sense supported the practice.11
Nevertheless, the vacancy argument served its purpose, which at that point was merely to stall for time. Weeks passed, and senators began to peel away from Fortas. Finally, in desperation, Fortas accepted the Senate Judiciary Committee’s invitation to testify—the same invitation that Warren had declined in 1954 on the theory that a sitting justice should not be interrogated by members of a coequal branch of government. Fortas, however, was confident in his abilities, and his nomination was in trouble. He elected to appear.12 On July 16, Fortas took his seat. Beginning that first day, he adopted a strategy that was to prove disastrous. Fortas attempted, with mixed success, to contain questions about the Court and to deflect inquiries about his relationship with Johnson. When pressed on those areas, particularly on topics regarding advice he had given Johnson, Fortas made his most fateful choice: He elected, under oath, to lie.13
Fortas denied that while sitting as a justice, he had proposed candidates for presidential appointments, a lie. He denied helping draft presidential statements, including one on riots in Detroit, another lie. Asked what role the Court should play in leading social change, he answered, “Zero, absolutely zero.” That was a request for an opinion, but Laura Kalman notes that “in the context of Fortas’s other answers, this one seemed symptomatic of his dishonesty.”14 Perhaps nowhere was Fortas more consistently mendacious than over the question of his participation in the inner councils of the Johnson administration’s Vietnam War apparatus. The White House Daily Diary, unavailable to the Judiciary Committee, logged dozens of contacts between Johnson and Fortas, and showed many meetings where Fortas joined the president’s war group, which included Clifford, Dean Rusk, Walt Rostow, and General Wheeler. Just six weeks before his July testimony, Fortas participated in Johnson’s weekly Vietnam luncheon, part of his routine consultation on matters involving Johnson’s management of the war.15 Before the committee, Fortas insisted that he played no meaningful part in the formulation of war planning. That, too, was a lie.
For the moment, Fortas got away with some of his worst deceptions. The only ones who knew the full extent of them were unwilling to speak up. But other details of his testimony came under scrutiny—Fortas was forced to admit, for instance, that he had lobbied a friend and client to tone down his criticism of the war—and deepened suspicions about Fortas’s truthfulness. Moreover, the hearings took time, and time decidedly was not on Fortas’s side. Charges of cronyism shifted to attacks on the Warren Court, particularly its criminal justice and obscenity rulings. Fortas again tried to deflect, arguing that he could not answer specific questions about the Court’s rulings without violating the separation of powers between the government branches. But Fortas was inconsistent—he answered enough questions to encourage senators to keep prying, then retreated when he realized he’d gone too far. The nadir was reached when Senator Strom Thurmond blamed Fortas for a decision that the Court had handed down in 1957, eight years before Fortas joined the Court. That case, Mallory v. United States, was an early exemplar of the Warren Court’s criminal justice jurisprudence, and in it the Court overturned the conviction of a nineteen-year-old rapist because he had been detained and questioned for more than five hours, and subjected to a polygraph, without being told he had the right to refuse and without formal arraignment, where he would have received a lawyer. The rape occurred in the District of Columbia, so Mallory was uncomplicated by issues surrounding the Fourteenth Amendment, and Frankfurter wrote for the unanimous Court that overturned Mallory’s conviction.16 By any reasonable standard, Mallory was irrelevant to the Fortas confirmation: The facts were so clear that even the Court’s conservatives joined the opinion, and Fortas had absolutely nothing to do with it. Thurmond was not playing by the rules, however. “Mallory,” the senator screeched at the shell-shocked Fortas, “I want that word to ring in your ears.”17
Fortas spent four inglorious days on the witness stand. When he was dismissed, his nomination was in serious trouble. Congress
adjourned for the summer without taking a vote, a sure sign that the president’s supporters were not in control. And then, before it reconvened, Fortas’s greed gave further fuel to his opponents. Fortas had been teaching a seminar at American University during the summer, and arrangements for his appearances there were made by his old law partners. What emerged during the break in his nomination proceedings was that Fortas was paid $15,000 for those lectures—a significant sum at a time when associate justices received only $39,000 a year—and that the money to pay him had been raised from clients of the old Fortas law firm. Fortas replied that he had not known the source of the money, but that charge added to the others and completed a picture of an unscrupulous man, willing to bend rules to suit his interests. By September, Fortas’s great opportunity had turned to torment. When the president invited Fortas and his wife to dinner at the White House, Lady Bird thought they might refuse. “I wondered if they could stand to see us, the unwitting architects of all the agony they have been going through,” she confided to her diary. “Lyndon’s only thought—months ago when he nominated Abe to be Chief Justice—had been to find the best Chief Justice the country could provide and to accord Abe an honor he so magnificently deserves.” One can question that, but not Lady Bird’s concluding thought. “Well,” she added, “it hasn’t turned out that way.”18 The vote finally was called on October 1, and 45 senators voted to end debate. Though that was a majority of those voting—43 voted the other way—it was far short of the two-thirds needed to end the filibuster that had delayed a vote all summer. Fortas knew it was over. He asked Johnson to withdraw the nomination.
For Johnson, the vote was an excruciating defeat. In the end, Russell abandoned him (administration debate and foot-dragging by Attorney General Ramsey Clark over a judicial nominee favored by Russell had complicated the Fortas nomination, as Russell became convinced that Johnson was holding the other nomination hostage to force Russell’s support for Fortas). Their friendship, one of the defining relationships in late-twentieth-century American politics, came to an abrupt and unhappy end. Everett Dirksen, as Johnson had warned, bailed out when the nomination threatened to expose his fading influence over his own party. The elders, the great masters of the Senate, had lost, their defeat evidence of a passing era. The principal victim, of course, was Fortas, though he had done much to bring about his own demise. Others suffered as well. Warren Christopher visited Johnson along with other administration deputies during those weeks, and was struck by how old and tired Johnson appeared. Rarely, Christopher said many years later, had he ever seen a man so depleted and still on his feet.19 Thornberry returned home to Texas, denied even a vote by the politics, interests, and lies of others.
