16 minute read
Chief Justice Earl Warren
By Harry Munsinger
All photos: Public Domain
Earl Warren was born on March 19, 1891, in Los Angeles, California.1 During high school, he spent more time running track than studying. After high school, he graduated from the University of California at Berkeley (“Cal”) and then went on to graduate from Cal’s law school. Warren made friends easily and dabbled in local politics. When the United States entered World War I, he enlisted in the Army and earned a commission.2
After the war, Warren returned to California and worked as deputy city attorney for Oakland,3 and later as deputy district attorney for Alameda County.4 He met his future wife, Nina Myers, at the Piedmont Baths in Oakland.5 In 1938, he ran for Attorney General of California and easily won the election. On December 7, 1941, when the Japanese bombed Pearl Harbor, he was in Oakland. He told Californians to prepare for a Japanese attack on the West Coast.
Governor Warren
By 1942, Warren had become California’s most prominent Republican. As such, he had a good chance of becoming governor in the next election, so he ran as a Republican against the incumbent, Democrat Culbert Olson, and won.6 The national press soon discovered Governor Warren and his attractive family. He appeared on the cover of Time magazine in January 1944, when the magazine began printing in California.7 The accompanying article suggested that he was destined for national office. However, President Franklin
Delano Roosevelt was running for a fourth term in 1944, and Warren did not want to run against a popular president, so he avoided joining Thomas Dewey’s ticket as vice president. Although, in 1948, Warren attended the Republican convention—hoping for a deadlock that would make him the compromise candidate for president—Dewey received so many votes on the first ballot that it was clear he would be the Republican nominee. Warren campaigned vigorously for Dewey and attracted large crowds, but President Harry S. Truman won a second term.
Loyalty Oath
Soon after the war, many Americans felt threatened by communism at home and abroad. California state Senator Jack Tenney wanted Cal’s faculty and staff to swear allegiance to the United States. University President Sproul agreed to the demand and required Cal employees, as a condition of their employment, to sign an oath rejecting communism.8 Faculty members felt the oath infringed on academic freedom and threatened tenure, so they refused to sign. Two members of the board of regents asked Sproul to involve Governor Warren in the controversy. Warren attended a board of regents’ meeting in January 1950 and stated that requiring university faculty and staff to sign a loyalty oath was inconsistent with their civil rights. After a heated debate over the oath, the vote among the board of regents was tied, meaning the faculty who refused to take the oath would lose their jobs. The problem resolved when a regent resigned, and Warren could appoint a new member who voted to reject the loyalty oath.
Warren was reelected as Governor of California by promising to be nonpartisan and arguing that he had added 20,000 new classrooms and teachers, improved health care, created over a million new jobs, built new roads, and supported the construction of more than 600 new homes in California.9 He attended the 1952 Republican National Convention in Chicago with the hope of gaining the nomination for president. However, Dwight D. Eisenhower won the nomination and the election. Eisenhower viewed Warren as a threat in the next election, so Eisenhower offered him a cabinet post, with the confidential understanding that he would nominate Warren to the Supreme Court of the United States when a vacancy occurred. Warren accepted the deal. Chief Justice Fred Vinson died soon after. True to his word, Eisenhower named Warren interim Chief Justice of the Supreme Court and removed Warren from politics.10
Chief Justice Earl Warren
Warren joined four of the brightest and most assertive Justices who ever served on the Supreme Court: William O. Douglas, Hugo L. Black, Robert H. Jackson, and Felix Frankfurter. The main division within the Court was between judicial activists and those advocating judicial restraint. Jackson and Frankfurter supported judicial restraint, while Douglas and Black believed the Court should break new legal ground, unrestrained by precedent or the plain text of the Constitution. Shortly after Warren became Chief Justice, the Court considered one of the most important civil rights cases in a century—a dispute concerning racial segregation in American schools.
Brown v. Board of Education of Topeka
In Plessy v. Ferguson, the Supreme Court had upheld the constitutionality of “separate but equal” facilities. Thurgood Marshall, Charles Houston, and the NAACP began looking for cases to bring before the Supreme Court to show that “separate but equal” schooling for Black children harmed Black students. They found appropriate cases in Kansas, South Carolina, Virginia, Delaware, and the District of Columbia and combined the five cases into Brown v. Board of Education of Topeka11. The issue was whether schools could deny admission of Black children to white schools based on race alone. Lower federal courts had followed Supreme Court precedent in Plessy v. Ferguson and ruled that racially segregated public schools were constitutional as long as they were “equal.”
When the case reached the Supreme Court, Warren opened deliberations by saying it was time to face the issue of racial segregation in public schools. He said that if the Court supported continued racial segregation of America’s schools, it was embracing white racial superiority. Justice Black would normally have spoken next, but he was absent dealing with a family matter. Black sent word that he would vote to overturn racial segregation in public schools. Justice Stanley Reed came next, saying that segregation was based on racial differences, not inferiority, and that he would follow precedent. Frankfurter followed Reed and argued that racial segregation was constitutional as long as school facilities were equal. Douglas said he would vote for the end of racial segregation. Jackson agreed that ending racial segregation was the right thing to do. The junior Justices Harold Burton, Tom C. Clark, and Sherman Minton voted to end racial segregation in public schools.
Warren had a seven-to-two majority in favor of desegregating public schools, but he wanted a unanimous ruling if possible, so he postponed a formal vote. He had two reasons for doing so. First, the Senate had not yet confirmed him, and if he voted to end racial segregation before confirmation, Southern Senators would likely reject his nomination. Second, he wanted to persuade all nine Justices to end racial segregation because he felt such an important decision needed unanimous support to stand against Southern opposition. Eisenhower wanted to avoid government intervention in race relations, but Warren ignored the president on the issue. After the Senate confirmed Warren, he set Brown v. Board of Education of Topeka for a formal vote. The vote was unanimous.
Colleagues urged Warren to write the opinion, feeling it would carry more authority if drafted by the Chief Justice. Warren agreed and began his opinion with a factual summary of the five cases. Then he discussed the history of the Fourteenth Amendment and explained that “separate but equal” was inconsistent with the intent of the amendment. Warren pointed out that widespread free public education was not available when the “separate but equal” concept originated. He concluded that separate educational facilities for Black children violated the Equal Protection Clause of the Fourteenth Amendment and were, therefore, unconstitutional.
Warren wrote that segregated educational facilities based on race created a feeling of inferiority among Black students that harmed intellectual and personal growth, but the fight against racial segregation in public schools was far from over. Southern opponents argued that the Court’s decision was based on social science rather than legal precedent and was, therefore, unlawful. Eisenhower said the Supreme Court had spoken, and he was bound to uphold its decisions—hardly a ringing endorsement.
Southern Opposition
Southern legislators, governors, and local authorities tried to delay or modify the Brown decision to avoid integrating their schools. To counter the resistance, the Supreme Court issued a second decision ordering integration “with all deliberate speed.” Federal district judges faced hostile opposition when demanding compliance with the Brown decision, and they had difficulty enforcing their rulings in Southern states. Warren became internationally famous because of the Brown decision, and his ambition to run for president grew, especially when Eisenhower suggested he might not seek a second term.
On July 17, 1957, at a news briefing, Eisenhower said, “I can’t imagine any set of circumstances that would ever induce me to send federal troops into any area to enforce the orders of a federal court.” Arkansas Governor Orval Faubus decided to test Eisenhower’s resolve. He asked the Arkansas legislature to pass laws blocking integration of Arkansas schools, arguing that the admission of nine Black students into Little Rock’s Central High School would threaten state safety. He mobilized the Arkansas National Guard to turn the Black students away when they tried to enter the school. Eisenhower did not care much about racial segregation, but he could not let a state governor defy him and the Supreme Court. He had to respond. He tried to negotiate a solution, but Governor Faubus refused to cooperate, withdrew the national guard, and turned the city over to an angry mob that blocked the Black children from entering Little Rock High School.
Eisenhower had no choice but to send federal troops to intervene; so he sent 1,000 paratroopers from the 101st Airborne Division to the city to restore order. The mob backed down in the face of armed federal troops. Federal paratroopers escorted the nine Black students into classrooms and guarded them while they studied. Governor Faubus, however, did not stop resisting desegregation.
Cooper v. Aaron12
Instead, Arkansas filed suit in the Eastern District of Arkansas and asked the federal court to suspend the plan to integrate the Little Rock school system. When the case reached the Supreme Court, all nine Justices agreed that the Supremacy Clause of Article VI of the Constitution required Arkansas officials to comply with federal court orders. The Court asserted its power in Cooper but lost the support of Congress and much of the nation as a result. A clear sign that public support for Warren’s Court was fading occurred in 1958, when Learned Hand delivered the Oliver Wendell Holmes Lecture at Harvard University. Hand expressed concern about Supreme Court activism, saying he did not believe nine “Platonic Guardians” on the Supreme Court should rule America.
Hand’s criticism of the Warren Court encouraged Southern Senators to introduce a bill limiting the power of the Supreme Court. When the bill came up for a vote, Learned Hand refused to testify, and Majority Leader Lyndon Johnson was able to defeat the bill. Black activists pushed desegregation by initiating sit-ins at lunch counters throughout the South to protest racial segregation. The 1960 Kennedy-Nixon election triggered a realignment of Black voters within the Democratic party, and Black voters helped Kennedy defeat Nixon by a narrow margin. Unlike Eisenhower, President Kennedy supported federal enforcement of civil rights in America. As the Kennedy administration consistently supported civil rights in America, conservatives launched a publicity campaign to impeach Warren.
Impeach Warren
In 1961, the John Birch Society initiated a campaign to drive Warren from the Court. The campaign included nationwide billboards calling for Warren’s impeachment. There was little public support for impeaching Warren outside the South, but the John Birch Society was the public face of opposition directed against the Supreme Court and Chief Justice Warren. Eisenhower had been passive in his support of Supreme Court decisions, but Kennedy actively enforced Court rulings concerning desegregation, which increased resentment against Warren. Meanwhile, the Supreme Court began to expand criminal defendants’ civil rights.
Gideon v. Wainwright13
Gideon was charged with felony breaking and entering and appeared in court without an attorney because he was too poor to afford one. He asked the Florida court to appoint an attorney, but the judge refused because the right to a public defender only existed for capital cases in Florida. Gideon was found guilty and sentenced to five years in prison. Civil rights attorneys filed a habeas corpus petition in the Florida Supreme Court, arguing that the refusal to appoint an attorney violated Gideon’s right to counsel. The Florida Supreme Court disagreed, so Gideon’s attorneys appealed to the United States Supreme Court. In a unanimous opinion, Justice Black held that the United States Constitution requires state courts to appoint an attorney for criminal defendants if they could not afford one. Gideon was re-tried with representation and acquitted. Around this time, a lone shooter shot President Kennedy in Dallas.
The Warren Commission
On November 22, 1963, the Justices were discussing whether the right to vote fell within the Equal Protection Clause of the Fourteenth Amendment, when they learned that President Kennedy had been assassinated. President Lyndon Johnson asked Warren to form a Commission to investigate the assassination and issue a report. The Warren Commission hired a special counsel, reviewed the FBI investigation, and initiated an independent review of the facts. The FBI learned about the commission’s plans because Gerald Ford, who was a member of Warren’s Commission, leaked them to J. Edgar Hoover.
The Warren Commission investigated several rumors, including one that shooter Lee Harvey Oswald was an undercover agent for the FBI, and that more than one shooter was involved in the shooting. The Commission’s first witness was Marina Oswald, the shooter’s widow. She identified the rifle as belonging to her husband and described her husband’s tendency toward violence and his alienation from society. She said she believed her husband had shot Kennedy. All testimony occurred behind closed doors but was subjected to intense scrutiny by the press. Another witness, Arthur Rowland, testified that he stood below the Texas Book Depository on the day of the shooting and saw a man in a window holding a gun. Although reporting what he saw might have saved Kennedy’s life, he did not report the sighting to the police.
After extensive investigation, the Warren Commission concluded that Oswald acted alone. In response to pressure from commission members Richard Russell and Gerald Ford, the Commission’s report included a finding that there was no evidence that Oswald or Jack Ruby (who murdered Oswald two days after Kennedy’s assassination) was part of a domestic or foreign conspiracy to assassinate President Kennedy, leaving open the possibility that new evidence might change the conclusion. The Commission delivered its report to President Johnson on September 24, 1964. Initial public reaction was positive. The FBI never accepted the theory that a single bullet had killed Kennedy and wounded Texas Governor John Connally. Attitudes toward the Warren Report became more skeptical over time, although today the Commission’s findings are generally accepted as accurate. Despite Kennedy’s assassination, the Warren Court continued to decide civil rights cases, turning its attention to voting districts in Alabama.
Reynolds v. Sims14
Sims filed a case alleging that Alabama had created large population differences among various electoral districts to disenfranchise Black voters. His attorneys showed that Jefferson County, which contained a large minority population, contained forty-one times as many voters as other districts in the state. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment requires roughly equal populations in each voting district so that all votes count. In an 8-1 decision, Warren wrote that the right to representation is the foundation of America’s political system and that states must apportion voting districts in an “honest and good faith” way, to create districts that are nearly equal in population. Reynolds triggered a battle over the right of all citizens to have their vote counted.
New York Times Company v. Sullivan
The next important case before the Warren Court involved the definition of “libel of public officials.” The New York Times published an ad asking for contributions to pay for the legal defense of Martin Luther King, Jr. City of Birmingham Public Safety Commissioner Sullivan asked the Times for a formal retraction, contending that the ad contained factual errors and unfairly criticized his subordinates. The Times refused to retract the ad, and Sullivan filed suit in Alabama state court. An Alabama jury awarded Sullivan $500,000 in damages; the Alabama Supreme Court affirmed the verdict. The Times appealed the decision to the United States Supreme Court. In a unanimous ruling, the Court reasoned that when the statement at issue involves a public figure, a plaintiff must show that the defendant made the statement knowing it was false or with reckless disregard for the statement’s falsity. That is, the defendant must have published the information with “actual malice,” a nearly impossible standard to meet in proving libel against a public figure.
Miranda v. Arizona16
Miranda considered four cases involving defendants who confessed during police interrogation without being advised of their right to remain silent. In a 5-4 decision, with Warren writing for the majority, the Supreme Court ruled that the Fifth Amendment requires law enforcement officials to advise suspects of the right to remain silent and to have an attorney present during interrogation when in police custody. Warren wrote that police must advise a suspect that if the suspect cannot afford an attorney, an attorney would be appointed to represent him or her. Finally, Warren held that any evidence obtained from an interrogation without this warning is inadmissible at trial. The dissenting Justices objected because no legal precedent required police officers to inform a suspect of these rights while in custody.
Retirement
Warren decided to retire from the Court so that President Johnson could nominate a liberal Justice before Johnson left office. The plan failed, however, and President Nixon nominated Warren’s replacement. Warren wrote a memoir of his life in a short essay entitled A Republic, If You Can Keep It. He died on July 9, 1974, only hours after the Supreme Court forced President Nixon to turn over a secret recording discussing the Watergate burglary, which eventually led to Nixon’s resignation as President.
ENDNOTES
1 Earl Warren, Chief Justice of United States, Britannica.com, available at https://www.britannica.com/ biography/Earl-Warren
2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 Time magazine cover: Earl Warren-Jan.31, 1944, available at https://www.pinterest.com/ pin/529735974901025437/
8 The loyalty oath controversy, university of California 1949-1951, available at https://www.lib.berkeley. edu/uchistory/archives_exhibits/loyaltyoath/index. html
9 Earl Warren, History.com, Editors, available at https://www.history.com/topics/us-politics/earlwarren
10 Id.
11 Brown v. Bd. of Educ., 347 U.S. 483 (1954).
12 Cooper v. Aaron, 358 U.S. 1 (1958).
13 Gideon v. Wainwright, 372 U.S. 335 (1963).
14 Reynolds v. Sims, 377 U.S. 533 (1964).
15 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
16 Miranda v. Arizona, 384 U.S. 436 (1966).
Harry Munsinger is the author of Texas Divorce Guide, The History of Marriage and Divorce, History of Inheritance Law, History of Medical Miracles, and Portraits of Leadership He has served on the San Antonio Bar Association’s publications committee for many years. During that time, he has been a frequent contributor to the San Antonio Lawyer magazine. Although now retired from law practice, Harry continues to contribute to this magazine!
