by Jim Newton
At Warren Burger’s suggestion, Earl Warren lay in repose at the United States Supreme Court from July 11 until his funeral the next day. His clerks stood guard over the bier through that night into the warm summer day that followed, silently paying vigil as thousands of everyday men and women filed past. Warren’s family converged on Washington. On July 12, Nixon accompanied Nina Warren to the funeral at the National Cathedral. Warren’s clerks, one pew behind the family, winced at that, but they kept their peace.82
Nina Warren considered bringing her husband home to California for his burial, but his connections to California were scattered—from his birthplace in Los Angeles, to his boyhood home in Bakersfield, to the Bay Area he loved, to Sacramento where he governed. Instead, she elected to return him to his nation. Warren had served in World War I and honored his country in the decades since. Nina laid his body at Arlington National Cemetery, where he was buried at the crest of a hill overlooking the Tomb of the Unknown Soldier.
Earl Warren died hours after learning that the Court he loved would force justice on the man who had bedeviled him much of his life. On August 5, President Nixon, Warren’s nemesis, bowed to the Supreme Court, Warren’s seat of power for sixteen years. As ordered, Nixon turned over the tapes. Four days later, on August 9, 1974, Richard Nixon resigned the presidency of the United States.
EPILOGUE
It is the spirit and not the form of law that keeps justice alive.
EARL WARREN
EARL WARREN left a great and voluminous legacy that modern America has not known quite how to absorb. In personal terms, his family bore him testament. Nina lived to celebrate her hundredth birthday and spent her remaining years as she had her life, happily consumed by her family, by then a full complement of her own children and their children—sixteen grandchildren in all. Although not a public person, Nina did occasionally visit the Court, where the staff and justices welcomed her with familial kindness. She was there, for instance, in hat and gloves, when the Court heard arguments in the Bakke case, which challenged affirmative action laws and grew out of California. As her husband always had, she refused to comment on what she’d heard. Through the 1970s, ’80s, and early ’90s, Nina resided modestly in the apartment she and Earl had shared, surrounded by memories and memorabilia of their life. “It’s all right to be sad,” she confided to the Sacramento Bee in a rare 1977 interview. “But one must not be dismal.” Today, Nina Warren is buried with her husband at Arlington National Cemetery. They lie together on a sunny hilltop, surrounded by the dignified white crosses and stars that blanket Arlington’s slopes. Their bodies rest beneath a tombstone inscribed with a passage from Warren’s book, A Republic, If You Can Keep It:
Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved we should add them permanently to our storehouse of treasures.
The Warren children and grandchildren, meanwhile, scattered across the American landscape, most but not all settling in California, growing up and growing older in the state that had fashioned Warren and that he, in turn, remade for them. Today the Warrens prosper in all walks of life. They work in real estate and the law, in education and politics. They are the living memory of Earl and Nina, blond and buoyant, exuberant and successful. They uphold their family’s legacy with grace.
But while Warren survives through his family, his place in the politics of the nation is more complex. The decisions he authored and orchestrated at the Supreme Court continue to set the parameters of modern American life, and most have become more settled over time. The decisions that launched the movement to impeach Earl Warren—the desegregation of schools, the insistence on free and fair elections at all levels of government, the curbs on prosecutions of Communists, the end to government-sponsored prayer in public schools—are such settled facts of American society that they barely stir dispute. No serious person today suggests that the poor be denied lawyers in state trials, as they were before Gideon. Few argue that illegally seized evidence should be admissible in trials, as it was before Mapp. Even Miranda, the source of fury in its time, has embedded itself so firmly in the law that police have learned to live with it and conservatives are loath to disturb it. The great exception, of course, is Griswold, an opinion that continues to roil the American landscape by providing the philosophical underpinnings for a right of privacy and thus for constitutionally protected abortion. Still, given the range and depth of the decisions of the Warren Court, one cannot help but be struck at the endurance of its work.
Warren, by contrast, has defied easy appreciation, as perceptions of him vary widely, according to the vantage point from which he is seen. In Sacramento, Warren’s images are dusted off periodically by politicians eager to associate themselves with his moderation. When Arnold Schwarzenegger signed compacts with California’s Indians in 2004, he pulled Warren’s old desk out of storage for the event, and when voters rebuked Schwarzenegger in the state’s 2005 special elections, he returned with a State of the State address in which he cited Warren, along with Pat Brown, Ronald Reagan, and Goodwin Knight, as the “governors who built the foundation of California’s prosperity.” For Schwarzenegger, Warren’s legacy is an attractive association, a reminder of a bipartisan and productive past.
But the same Warren who stands for centrism and bipartisanship in California is the punching bag in the nation’s fratricidal Supreme Court confirmation battles, where he has come to symbolize reckless, liberal judicial activism, against whose jurisprudence justices like Samuel Alito boast of having sharpened their skills.
When Republicans fret about the possibility of conservative justices abandoning the faith on the bench and heading off into unpredictable terrain, it is Warren who strikes that fear. Substantively, Warren’s work also courses through modern legal debate in topic after topic, nowhere more so than in the nation’s unwinnable argument between the forces of security and those of liberty. Warren started out a prosecutor, and his first case took aim at those whose advocacy challenged the state. Over the course of his life, he came to value freedom more highly and to see security not as undermined by freedom but rather as its product. Today’s challenge to American liberty is terrorism, not Communism or the IWW, and the methods that the government chooses to defend itself have changed as well—from congressional hearings that tested loyalty to wiretaps with and without court sanction. If methods have changed, however, the question fundamentally has not: Must liberty be curtailed in order to preserve the nation, or is the nation better understood as an expression of its freedoms?
Liberty is not a partisan value, nor is it one of special interests. It is, after all—along with life and the pursuit of happiness—one of the founding values of the nation itself. Warren’s belief in it thus hardly stamped him politically, and little about him fit the strictures of a runaway liberal. His manner was too conservative, his rhetoric too restrained, his devotion to nineteenth-century values too sincere for Warren ever to be a liberal in the modern sense. He was a veteran, married his whole life to one woman, a father to six children, appalled by pornography, and deeply patriotic. He was a Grand Master of the Masons. He appreciated power and those who had it. He liked to summer at the Bohemian Grove. Earl Warren was no Eldridge Cleaver.
And so Warren’s legacy is a perplexing one. To a polarized society whose leading cultural and political figures seem in constant search of affirmation, Warren offers both sides a little and neither side all it wants. Too straight and too Establishment to fit a liberal model, too devoted to an expansive civil libertarianism for conservatives to honor him, Warren falls between our modern cracks. He is a reminder that centrism today is a lonely idea, honored mostly in the breach.
That is illustrated by a strange fact of Sacramento. In a city where plaques and monuments are ubiquitous
—where there is a statue to Junípero Serra, a museum to its railroads, and another to its Indian heritage, where the county courthouse is named for Gordon D. Schaber and its Federal Building for Congressman Robert Matsui—there is scant mention of the man who governed California the longest. No building bears his name. There have been proposals now and again, but they fail because neither side claims Warren and because his legacy is so large that it must inevitably contain something for everyone to disapprove of. No man who desegregated schools, who prosecuted some criminals and then ordered others freed, who lobbied for the internment of Japanese-Americans, and who insisted that a lone assassin killed John Kennedy can avoid detractors. When, in 2003, a bill was introduced in the legislature to install a pair of memorials along the walk that Warren used to take from the mansion to his office, it made some headway. But like previous proposals to honor Warren, it died. In this case, it was the legislature’s Asian caucus that doomed the bill, retribution for Warren’s advocacy of the internment.
Jim Gaither, one of the perceptive and learned men who clerked for Warren, wistfully observed in our interview that the Supreme Court could not function with nine Earl Warrens. It would be too conscious of delivering individual justice and perhaps too heedless of the need to construct an architecture of law. But nor, Gaither added, can the Court survive without one Warren. Someone needs to look after the law, as Warren did, to see not only that it is faithful to its principles but also that it is effective in action, that it serves society and does not merely bind it, that it delivers not just abstract justice but actual fairness.
In the decades since Warren left the Court, America has never suffered from too many men or women like him. It is equally true that the nation today—certainly the Court—is less fortunate not to have one of him.
Acknowledgments
TOO MANY FRIENDS, old and new, have contributed to this book for me to thank them all. There are some, however, to whom I am so clearly in debt that they bear special recognition.
There is no question but to whom my first acknowledgment is due: Tina Bennett read my early attempt at a book proposal and guided me—with kindness, patience, and literary excellence—toward a book. Without her, this book would not exist. I am grateful to her for her work on every aspect of this project as well as for her unending good cheer, imaginative encouragement, and unsurpassed intelligence. No author could ask for more. Tina’s effectiveness is magnified by that of her able and cheerful assistant, Svetlana Katz.
At Riverhead Books, Susan Lehman saw early promise in the work and helped launch it. Jake Morrissey brought it to a conclusion with deft editing and devotion. I am happy to end this project not only as his writer but also as his friend. Thanks, too, to Jake’s assistant, David Moldawer.
Beyond them, there are three sets of people to whom I owe thanks: those who helped me research this book, those who read drafts or parts of drafts, and those who supplied comfort and cheer throughout. Of the first group, I am indebted especially to courteous and intelligent librarians from Berkeley to Washington, D.C., who have helped track down the far-flung records and recollections of Earl Warren’s California and Washington lives. Genevieve Troka at the California State Archives in Sacramento; Paul Wormser, Director of Archival Operations, National Archives, Pacific Region; and Greg Cumming of the Richard Nixon Library and Birthplace all helped me to locate material relating to Warren’s time as governor and his relationship with Richard Nixon. Mike Lange at the Los Angeles Times opened the paper’s History Center for my use, and Richard Beene, an old friend and the distinguished president and CEO of the Bakersfield Californian, made his paper’s archives available to me, as did the equally eminent Jerry Roberts, former editor of the Santa Barbara News-Press. Susan Fukushima of the Japanese American National Museum unearthed rare material in that museum’s collection on the World War II internments and Warren’s role in advocating them. Octavio Olvera of the UCLA Department of Special Collections guided me to materials in that library, especially the papers of Carey McWilliams, that helped illuminate the views of others regarding Warren’s rise through California politics.
Throughout, Charles Faulhaber and his exemplary staff at UC Berkeley’s Bancroft Library provided wisdom for understanding Warren’s life in California and the broader history of the state during that period. There, one person in particular deserves special thanks: Laura McCreery is a gifted historian who was compiling her important oral history of Warren’s clerks at the same time that I was at work on this book; I thank her for her many contributions to my work and to the Regional Oral History Office, where she and her colleagues for years have compiled the record of Warren’s friends and intimates. Because of Laura and others at Berkeley, my months there were among the most pleasurable of this project, and were aided by support from the Institute of Governmental Studies, which generously named me as its John Jacobs Fellow for 2004 and 2005.
Records relating to Warren and his Court years are scattered in libraries across the country, and I am grateful thus to many researchers in many places. Mary Wolf-skill was a gracious host at the Library of Congress; the staff of the Manuscript Division there is superb in every respect. At the National Archives, Kristen Wilhelm located and unsealed the records relating to Warren’s 1954 confirmation by the Senate. Those records were supplemented by the files of Senator William Langer, whose papers Sandy Slater kindly culled for me in Grand Rapids, North Dakota. At the Court itself, Brian A. Stiglmeier found transcripts and other vital documents and managed to get them to me with much-appreciated alacrity. In Princeton, New Jersey, Dan Linke and Ben Primer steered me through the papers of Justice Harlan, an exquisitely maintained and underappreciated resource on the Warren Court. In Austin, Texas, Mary Knill went beyond all bounds of courtesy with her help navigating the holdings of the LBJ Library, including papers relating to the Warren Commission as well as the personal papers of Warren Christopher, Drew Pearson, and others. Other librarians—too many to mention but all appreciated nonetheless—helped me locate records and papers at the National Archives in College Park (main repository of the Warren Commission’s files) and documents among the presidential papers of Presidents Hoover, Eisenhower, Truman, and Kennedy. Finally, Alexander Charns, whose Cloak and Gavel is a fascinating study of the relationship between the FBI and the Court, guided me to his extensive FBI files at the University of North Carolina during a stressful period when the FBI was not responding to my own Freedom of Information Act requests. I thank Alexander for his work and for his help.
This book is constructed largely around the original materials in the aforementioned libraries and from dozens of interviews, but it rests also on many secondary sources, which are cited in the bibliography and in footnotes accompanying the text. A few were so important that they deserve special mention. Richard Kluger’s Simple Justice is the definitive work on the school desegregation cases; no book before or since compares. Lucas “Scot” Powe similarly commands the field on the jurisprudence of the Warren Court; his The Warren Court and American Politics is the best of its kind, and Powe’s help to me only amplifies my gratitude to him. G. Edward White’s Earl Warren: A Public Life is a learned legal analysis of Warren, as one would expect from White, given his own brilliance and time as Warren’s clerk. Kevin Starr is California’s preeminent historian; his work is cited often in these pages, and his advice along the way has been very much appreciated as well. Taylor Branch’s writing on Martin Luther King is both inspiration and source. It too is cited through this work, but I owe my larger thanks to him for supplying awe.
I am not the first author to take the measure of Earl Warren. This biography builds on the hard work of others. Leo Katcher’s Earl Warren: A Political Biography and Jack Harrison Pollack’s Earl Warren: The Judge Who Changed America are helpful works. A lesser but still appealing book is Mr. Chief Justice: Earl Warren, A Biography by Bill Severn. More comprehensive are Chief Justice: A Biography of Earl Warren by Ed Cray, who graciously fielded questions from me, and John D. W
eaver’s Warren: The Man, the Court, the Era, a lovingly composed study made with Warren’s cooperation. The history of Warren in his Court years is best captured in Bernard Schwartz’s exhaustive Super Chief: Earl Warren and His Supreme Court—A Judicial Biography and White’s Earl Warren: A Public Life. I am grateful to all of the above, but especially Cray and White, for their work, support, and assistance.
Undertaking a task such as this is demanding, and not just on an author. My friends and family have lived with Earl Warren these past five years almost as surely as I have. Among those whose forbearance and good humor have helped me and thus this project—and who have supplied meals and shelter and mountains of friendship—are my parents, to whom I owe more than I can articulate; Carol Stogsdill and Steve Stroud (Carol is a long-standing source of kindness and strategic wisdom, and Steve deserves an extra measure of appreciation for supervising the selection of pictures for the book and taking the author photograph); Brad Hall and Julia Louis-Dreyfus (and Henry and Charlie); Paul and Victoria Barrosse (and Emilia and Eva); Whitney Ellerman and Kelly Baker (and Casey, Carter, and Charlie); Keith and Marianne Powell (and Scotty and Jackson); Mark Z. and Marianne Barabak (and Amelia and Rachel); Chris and Sarah Capel (and Elizabeth, Blair, and Anna); and last but never least, my dear and old friend Bill McIntyre, whose Mill Valley apartment is one of my favorite homes away from home. All my research trips—to Sacramento, Berkeley, Washington, Austin, Dallas, New York, Princeton,
Palo Alto, and Chapel Hill—were delightful voyages of learning, made comfortable and happy by these people. I thank them all.
