by Jim Newton
In his latter years as a justice, Warren had become taken with an organization promoting the cause of World Peace Through Law, whose ideals first captivated Warren when he met with the group at an Athens conference in 1965. Its advocacy of civil rights appealed to Warren’s sense of purpose and its international reach broadened his vision of the law. He spoke at the group’s regular conferences—Geneva in 1967 and 1968, Bangkok in 1969. Those appearances only solidified the far right’s distrust of Warren. The Biographical Dictionary of the Left sneered at the “pacifist cause of ‘world peace through world law’ ” along with Warren’s other internationalist interests, which the dictionary lumped together under the headings of disarmament and “so-called civil rights.”59
World Peace Through Law drew Earl and Nina Warren overseas, and their travel schedule in his early retirement remained busy. He and Nina visited friends and relatives, often traveling to California, where they would make their base at Ben Swig’s Fairmont Hotel but work in trips to Jim in St. Helena, Earl Jr. in Sacramento, Bobby in Davis, and Honey Bear in Los Angeles. Warren’s love of sports never flagged. He pulled for the Miracle Mets in 1969 and happily saw them capture the World Series. When the Redskins made it to the Super Bowl in 1973, Warren flew to Los Angeles with Edward Bennett Williams and his journalistic-politico entourage; that time, they watched in disappointment as the Redskins lost to the Miami Dolphins.60
WARREN CHAFED at his exclusion from the center of national life. He displayed a yearning for politics, as well as a sharpening testiness for opponents, real and sometimes imagined. In 1971, Burger convened a study group to examine the workload of the Supreme Court and to recommend ways to lighten it. Warren, smelling a rat and perhaps a bit overeager for a fight, lit into the proposal. One recommendation of the study group was the creation of a new National Court of Appeals that would screen petitions for the Supreme Court, denying those that appeared frivolous and passing along only those that, in its judgment, warranted consideration by the nation’s highest Court. Warren deplored the idea, and his doubts were fueled by his belief, which Brennan encouraged, that Burger was carrying the proposal for Nixon.61 Warren stewed for months as the panel worked, and took offense that rather than invite him to appear before it as a whole, it sent Peter Ehrenhaft, a former Warren clerk, to interview him one-on-one.62 Warren had seen his share of attacks on the Court and had seen jurisdictional debates mask deeper challenges to its autonomy and authority. This proposal was more innocently crafted, but even the proposed court’s name, the National Court of Appeals, recalled the National Court proposal that Warren had helped squelch in 1963. This time, once Warren concluded that Nixon was behind it, he could not see it as anything other than subterfuge. Warren sent a letter to his clerks—clearly intended to find its way to the press—denouncing the proposal and Ehrenhaft’s involvement in it. Then, when Warren at last spoke out publicly about the proposal, he rejected it with unmistakable force: “I believe it is obligatory not only to speak out to advance the efficiency of the Supreme Court’s processes but also to warn against those proposals that, under the guise of procedural reform, would cause irreparable harm to the prestige, the power and the function of the Court.”63
Substantively, Warren was right. The National Court of Appeals envisioned by Burger was never approved, and still, in the years after Burger left, complaints about the Court’s workload subsided—the result of the replacement of the dithering Burger by Rehnquist, a respected and efficient manager of the Court’s business. Yet Warren’s vehemence exceeded the issue. A few months after first unloading his anger against the proposal, he gathered with his clerks for their annual toast to him in Washington. Those had always been happy occasions, a reuniting of the fraternity of young men—now many growing old themselves—to share their devotion to their chief, who had launched and inspired their careers. Always in black tie, with strong cocktails and a good meal, the event was infused with the male camaraderie that Warren had cherished his whole life. He often spoke at length, good-naturedly fielding questions with the assurance that these were his men, that no breach of loyalty or confidence was even imaginable. This year, however, Warren stood before the clerks and turned on a tape recorder. It played a recording of a recent speech he had made in which he ringingly opposed the Court reform proposal. When the screed was over, Warren turned off the machine and asked Ehrenhaft whether he cared to reply. The younger man stammered out a few words, declining as the rest of the room sat quietly, embarrassed for Ehrenhaft, mystified by Warren.64
Warren’s attack on the Court reform package doomed it, and it stood as a reminder to Burger that his own prestige was infinitesimal in contrast to that of his predecessor. And indeed, the early 1970s were full of reminders of Warren’s esteem, as the Warren Court pivoted from its place as object of controversy to one of lionization and nostalgia. Warren himself was regularly included in any short list of great justices, sometimes joined only by Marshall and Charles Evans Hughes when ranked against history’s other chief justices. Warren’s eightieth birthday, in 1971, brought another round of praise and good wishes. Douglas dropped his old friend a line, and Warren replied with good cheer, recalling from decades earlier a talk that Herbert Hoover had given at the Bohemian Grove on the occasion of his eightieth birthday. “How does it happen that everyone now says such nice things about you when a few years ago they were throwing rocks at you?” one guest asked the former president, Warren recalled. “He answered, ‘I just outlived the bastards.’ ”65 One can easily imagine the cackle in Douglas’s chambers.
Warren kept his place in the life of the nation with his speaking schedule. He spoke most often to students, though also to assemblages of lawyers or judges and occasionally on behalf of environmental protection—he joined the effort to protect California’s redwoods, a cause spearheaded by his old classmate, Newton Drury. But Warren’s abiding political preoccupation was, as it never ceased to be, Nixon. Warren’s reverence for the American presidency prevented him from engaging in personal attacks on Nixon, but after 1972, the gathering storm of Watergate was more than Warren could resist. For twenty years, he had warned those closest to him that Nixon was not trustworthy, that he had crossed Warren at the 1952 convention and had more than earned the nickname “Tricky Dick.” Now Warren was riveted by the disclosures of burglaries, of misuse of government agencies to persecute critics, of secret bombings in Cambodia, and of the compilation of an “enemies list.”
In October 1973, soon after Earl and Nina returned from a Hawaiian vacation with Ben Swig, Swig was hospitalized, and Warren tried to lighten his friend’s spirits with regular updates from Washington. To such a trusted and ailing friend, Warren indulged in passing along gossip, though of a decidedly political nature. Spiro Agnew was under investigation, and Warren predicted on October 3 that with so much talk of grand jury inquiry, “it is about time we hear of some action one way or the other.”66 By October 15, Agnew was gone, and Warren told Swig there was brief rumor that Chief Justice Burger would become the vice president in Agnew’s place. Agnew’s farewell address, an attack against the press rather than an admission that his tax evasion conviction had brought him down, only annoyed Warren, who described it as a “great polemic,” and said it “left everyone here cold.”67 On October 20, Nixon ordered his attorney general, Elliot Richardson to fire Archibald Cox, the special prosecutor then seeking access to the White House tapes. Richardson refused and instead resigned himself. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. He too refused. Finally, Robert Bork, the solicitor general but then acting attorney general, carried out Nixon’s orders. Warren was amazed. “Washington is seething again with the events of last weekend,” he wrote to Swig, “and conditions are far more chaotic than they have ever been in my experience.”68 By month’s end, Warren could genuinely report, “There is no news here except Watergate.”69
In public, Warren was far more circumspect, but he occasionally found it impossible to hold his tongue. In Apri
l of 1973, Warren traveled to Independence, Missouri, to pay homage to President Truman—an old adversary but really more of a friend—who had died the day after Christmas in 1972. Speaking at the library of a president he admired, Warren could not conceal his disdain for Nixon. Although he did not name him, Warren contrasted Truman’s presidency with his successors’, and added: “I sometimes wonder if that wholesome approach has departed permanently from the American scene.”70
Three months later, Warren presided over a happier fulfillment of his own legacy. In Los Angeles, voters elected that city’s first black mayor, Tom Bradley, and Warren, whose contributions to the cause of racial equality were without many peers, was invited to administer the oath. It was a satisfying moment for the chief justice, who had sworn in Presidents Eisenhower, Kennedy, Johnson, and, lamentably, Nixon, but who now came home to guide a black mayor through his oath of allegiance to the Constitution. When Warren, without introduction, stepped to the podium to administer the oath, Bradley began to applaud, and with him, the thousands who had gathered in Warren’s home state on a sunny July morning joined in paying their respects to the former governor. Unable to stay seated, the guests rose and gave Warren a standing ovation. Some wept. One hardened newsman confessed to Bradley that even he wiped tears from his eyes.71 Then Warren turned to the completion of what he had started in 1954 with Brown. He made a black man the mayor of his own birthplace. It was, Warren said, a “heart-warming event for me.”72
By the end of 1973, Warren’s health was beginning to fail, but he remained unwilling to succumb to it. On January 26, 1974, he was hospitalized in Los Angeles while doctors worked to relieve a fluid buildup around his heart and lungs. He was treated and released after a week, and then recuperated a few more days at Honey Bear’s home in Beverly Hills. By March, he was sufficiently recovered to celebrate his eighty-third birthday with a dinner at Virginia and John Daly’s home in Washington, and on April 5 he took in Opening Day in Baltimore. His law clerks toasted him later that month, and Warren accepted a number of speaking engagements for April and May. The last of those was to be in Atlanta, where Warren agreed to deliver a commencement address at that city’s great all-black college, Morehouse. Speaking to those new graduates, Warren reflected on Watergate and urged students not to abandon their history. “The scandal, compendiously referred to as Watergate, has shaken the faith of people, not only in the individuals involved, but also in the procedures which brought them to their high stations,” Warren said. “Many people are so shocked by the disclosures that they are distrustful of all persons in public life and, what is even worse, they are becoming doubtful about the institutions upon which we have relied for so long to bring about the freedom which was promulgated in the Declaration of Independence two centuries ago.”73 That would not do for Warren. Even with Nixon in the White House and the nation torn by his presidency, Warren kept his belief in those institutions, if not in those individuals who occupied them. “The great virtue of our Government,” he said, “is that people can do something about it.”74
That was Warren’s final public appearance. Three days later he suffered a heart attack and was hospitalized in Washington. The last weeks of Warren’s life were spent between hospital and home. During that time, he welcomed to his side the people of his lengthy career, each bringing memories that gave him comfort. On June 27 came Pat Patterson, who as a young California highway patrolman had chauffeured Governor Warren through a vast and varied state.75 Warren was weak but cheerful, and eager to reminisce about their early days together, when the governor and his black driver struck up their friendship. They talked of the governorship, of their rides, of friends they had in common, of their long bond with each other. Patterson immodestly asked whether he was right in assuming that Warren had been writing about him in Brown v. Board of Education when he described the plight of black children in segregated schools. Even sick, Warren knew better than to take that belief away from Patterson. “He laughed,” Patterson recalled, “and indicated many factors and much evidence were taken under consideration in making that decision.” After talking for a while, Patterson reluctantly broke away. Warren encouraged him to write a book. Patterson left their final meeting vowing to try.76
Warren reentered the hospital on the afternoon of July 2. And soon after being admitted came the representatives of a deeper, older, more cherished memory. The University of California, Berkeley, had held a place in Warren’s heart from first sight, and now to his bedside it returned, carried by two men who shared his love of it. His oldest son, Jim, whom Warren had adopted as his own when he married Nina, came with his own son, Jeffrey, who had presumed to introduce his grandfather to the writing of Eldridge Cleaver and who had begged him to stay on the Court. All three Warrens were members of the Order of the Golden Bear and were fraternity brothers across their three generations. Together, they loved poetry, and Jim and Jeffrey read to the old man as he lay in bed. Then Warren spoke up. There was one poem he wanted to read to them, he said. It was “The Explorer,” by Rudyard Kipling, precisely the type of narrative, eventful poem that Warren always liked. Determined to read it aloud in accordance with the traditions of their society, Warren pulled the poem close and gravely sounded out its lines. It told the story of a man, driven to discover the “land behind the ranges” by a voice compelling him forward. It told of the man’s patience and his vision. It had tinges of bitterness, the lack of appreciation that those who would come later would have for the man who blazed ahead. Warren read it slowly, his son and grandson by his side. And then, Warren came to the poem’s final verses, three stanzas written as if for him:
Have I named one single river? Have I claimed one single acre?
Have I kept one single nugget (barring samples)? No, not I!
Because my price was paid me ten times over by my Maker.
But you wouldn’t understand it. You go up and occupy.
Ores you’ll find there; wood and cattle; water transit sure and steady
(That should keep the railway-rates down), coal and iron at your doors.
God took care to hide this country till He judged his people ready,
Then he chose me for His Whisper, and I’ve found it, and it’s yours!
Yes, your “Never-never country”—yes, your “edge of cultivation,”
And “no sense in going further”—till I crossed the range to see.
God forgive me! No, I didn’t. It’s God’s present to our nation.
Anybody might have found it, but—His Whisper came to me!
Earl Warren tossed up his hands in triumph. “We’ll see ya, fellas,” he exclaimed. Jim and Jeffrey left believing he might bounce back.77
On July 9 came greetings from the Court, delivered by Warren’s two enduring friends from his era—the elfin William Brennan and the irascible William Douglas. Along with Marshall, those two colleagues were all that remained of the once dominant liberal bloc. Black had died in 1971, just eight days after retiring his seat. Goldberg and Fortas preceded Warren from the bench. Now Warren Burger sat in Warren’s chair, and Harry Blackmun in the one that Goldberg and Fortas had occupied. The Nixon appointees had not done much to roll back Warren’s work, but his legacy was under attack, and it seemed only a matter of time until it would fall beneath the weight of conservative appointments. And yet there were other currents coursing through politics in those days, particularly as the stain of Watergate and its associated deceptions spread through the Nixon White House. Unable to squelch demands for his tapes by firing Archibald Cox—or, rather, by persuading Bork to fire Cox—Nixon now turned to the Supreme Court for relief. Nixon’s lawyers argued that they should not be forced to surrender secretly made tapes of Oval Office conversations, that executive privilege protected that material. On July 8, prosecutor Leon Jaworski came to the United States Supreme Court—four of whose members had been placed there by Nixon—to demand that the president yield to the law and surrender the tapes. The Court heard three hours of argument that day, then re
treated to its conference room on July 9 to debate the emergency matter.
When they arrived at Room 6103 that afternoon, Brennan and Douglas joined their old chief on the seventh floor of the Georgetown hospital.78 Outside was the Watergate complex, where an alert security guard had caught the five burglars whose case tugged apart the web of deceit and cover-up that now was unraveling the Nixon presidency. They entered, and Warren took Douglas by the hand: “If Nixon is not forced to turn over tapes of his conversation with the ring of men who were conversing on their violations of the law, then liberty will soon be dead in this nation. If Nixon gets away with that, then Nixon makes the law as he goes along—not the Congress nor the courts. The old Court you and I served so long will not be worthy of its traditions if Nixon can twist, turn, and fashion the law as he sees fit.”79 Warren was tired, but Brennan assured him that he would not be disappointed in the Court, that it had met that day and that it would vindicate itself in its ruling on United States v. Nixon.80 Warren smiled and asked his friends to stay longer. Fearing they would tire him, they left after about an hour.
That night, Warren was joined at his bed by his wife and Honey Bear. They were by his side when, just after eight P.M., he seized up. Honey Bear dashed into the hall for help. Returning with a doctor, she found her mother holding her father in her arms. At 8:10 P.M., Earl Warren died. More than thirty years earlier, Earl Warren had wept in the hallway, shrugging off his own Election Night, at the news that his little girl had polio. Now she was grown and healthy, there with her mother and namesake, whom Warren had cherished since their chance meeting at an Oakland pool party fifty-three years earlier. As her father died, Nina “Honey Bear” Warren staggered into another hospital hallway. She wept, comforted by her mother yet as bereft as her father had been at her illness so many years before.81
