The temper of the Vinson Court appeared glaringly in the most fraught of the Cold War cases, the convictions of Julius and Ethel Rosenberg for espionage. Julius was a Communist who had transmitted sketchy information about the American nuclear weapons program to the Soviet Union for a brief period in 1944-45—it was never established that he played a significant role in the Soviet Union’s development of the atomic bomb. Ethel was charged to pressure her husband to cooperate with the government—she was never shown to have been an active spy. But the Rosenbergs became scapegoats in the national security hysteria of the early Cold War. Their trial judge blamed their “diabolical conspiracy” for fifty thousand casualties in the Korean War, and “who knows but that millions more of innocent people may pay the price for your treason.”
Sentenced to death in 1952, the Rosenbergs repeatedly petitioned the Supreme Court for review. Black and Frankfurter favored hearing the case, but Douglas’s was the crucial vote. Twice he voted against review and also cast a decisive vote against a stay. But on June 17, 1953, the day before the scheduled execution, Douglas issued his own dramatic stay, writing that “before we allow human lives to be snuffed out we [must] be sure—emphatically sure—that we act within the law.” Frankfurter was disgusted; he felt it was typical Douglas “grandstanding.” With the court having adjourned for the summer, Vinson summoned the justices to convene for a “special term” within twenty-four hours, in what Black called “a race for death.” After a brief hearing, the stay was lifted—with only Black, Frankfurter, and Douglas voting no—and the Rosenbergs were sent to their deaths. It was, a Frankfurter clerk noted, the climax of the Vinson Court’s submission to “the loyalty-security mania and the xenophobia of the day.”
Two years earlier, upholding the conviction of the Communist leaders in Dennis, Frankfurter had written, “History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.”
This was a noble lesson of judicial restraint drawn from the searing trials of 1937, but also strangely obtuse. Frankfurter seemed to take for granted that his own stance of restraint would insulate the Supreme Court from choice among competing pressures, that it was a position of neutrality detached from political decision-making. Not only the court’s long history but Frankfurter’s own experiences should have taught him that nothing could have been further from the truth. His own perceptions as to what was necessary for “national cohesion,” what constituted loyal citizenship or a threat to national security, conditioned—even determined—the extent of “deference” he would show to political leaders. Frankfurter, after all, never forswore the Supreme Court’s assumed power to review the acts of the political branches. If the justices did not have “primary responsibility” for policy, they retained an ultimate supremacy over it. Frankfurter’s restraint was merely a question of degree, and the answer to that question in particular cases involved choices that inevitably were political. As the wavering course of the Roosevelt Court in the field of civil liberties showed all too dramatically, justices—whether activists or practitioners of restraint—could not avoid embroilment “in the passions of the day.”
CHAPTER TEN
Leadership: The Warren Court
AFTER THE 1930S collision between the FDR steamroller and the old Republican court ended with the triumph of the New Deal, some expected the Supreme Court to settle back into a stable and even mundane existence. This was not to be. The court swung sharply to the left, then zigzagged, as New Dealers divided and clashed, and some carefully selected appointees turned out to be surprises. Felix Frankfurter, the young Harvard professor and New Dealer who had been a close friend to FDR, turned into one of the most conservative justices, as did FDR’s protégé Robert Jackson.
In the game of judicial roulette, though, such surprises weren’t confined to Democrats. After Dwight Eisenhower in 1952 became the first Republican elected president in a quarter century, he named to the Supreme Court a party stalwart who had run a failed campaign for the GOP’s presidential nomination and had once been its candidate for the vice presidency, Governor Earl Warren of California. Warren had also spearheaded the wartime removal of Japanese Americans from the West Coast, warning that they could bring a “repetition of Pearl Harbor” to the American mainland. But he would, as chief justice, metamorphose into the most liberal leader of the Supreme Court in American history. Under his leadership, the court would move deeply into such controversial areas as black rights and civil liberties and voting power, and assert itself as the most dynamic branch of American government. By making the Supreme Court a center of progressive reform, Warren would forge a luminous exception to the court’s historic role as the bulwark of anti-democratic, anti-egalitarian conservatism.
Dwight Eisenhower promised to modernize the GOP, to rid it of bitter-enders who still sought to overturn the New Deal, while replacing Democratic liberal crusades with moderate “good government.” His long career in the army had taught him to disdain partisanship and extremes right or left. Both parties had courted the victorious commander of the Allied armies in the years after World War II—Truman had offered to back him for the 1948 Democratic presidential nomination—and it was only months before he began his campaign for the 1952 Republican nomination that he declared his party affiliation. He went on to beat Robert Taft, son of the former president and chief justice and the leader of the Republican right, at the GOP convention, and then, in the general election, he crushed Adlai Stevenson, heir to New Deal liberalism.
When Chief Justice Vinson died suddenly of a heart attack in September 1953, aged only sixty-three, Eisenhower had an unexpected chance to reshape the Supreme Court in his own centrist image. He wanted a nominee of national stature, wide experience in government, and integrity. There was such a man, one who had just days before announced his retirement from politics and, moreover, one to whom Ike had given a hostage to fortune, a “personal promise” made a month after the 1952 election that he would name him to the “first vacancy on the Supreme Court”—Earl Warren. Eisenhower was grateful to the “big man” for using his control of the large California delegation to help Ike defeat Taft at the convention, and he was impressed by Warren’s administrative experience and statesmanlike qualities, notably the bipartisan appeal of the governor both Republican and Democratic Californians had nominated for a third term in 1950. “Earl Warren’s a Democrat and doesn’t know it,” Harry Truman said of the Republican vice-presidential candidate who had opposed him in 1948.
But when Ike had made his promise, he had not anticipated that the first open seat would be the chief justiceship, and he thought Warren would understand that. So the president and his attorney general, Herbert Brownell, discussed other candidates, most notably Robert Jackson, whose elevation from associate justice would open up a seat for Warren. The promotion of a New Dealer who had become a leader of the court’s conservative wing attracted Eisenhower, but he had to face political reality: after their long drought, Republicans would rebel at the nomination of a Roosevelt “crony,” especially one so closely identified with FDR’s attack on the old Republican court. Moreover, Earl Warren didn’t understand: he made it clear to Brownell that the president would be “breaking his word if he wasn’t named to the Court immediately.”
Eisenhower was irritated by gossip that Warren’s appointment was merely a political payoff. “The truth was,” he insisted in his memoirs, “that I owed Governor Warren nothing.” If that was not entirely the truth, neither did Ike have an inkling that he would come to regard Warren as one of the two worst mistakes of his presidency. The president wasn’t wrong in judging Warren a man of “high ideals and a great deal of commonsense.” But he failed to foresee how those qualities would combine with Warren’s passionate, determined activism to revolutionize constitutional law. The new chief justice had never met a problem without a solution, and the bolder the
solution, the better he liked it. And the Supreme Court, with its authority over the Constitution and accountable neither to voters nor to elected officials, offered a matchless field of opportunities for that activism.
As had long been his way, Felix Frankfurter at first warmly welcomed his new colleague to the bench and undertook to tutor him, sending over articles and memoranda and copies of his own opinions that might be “helpful as direction for dealing with specific cases as they arise.” But as the new chief began to shed his initial caution and restraint to reveal an activism in line with that of the Black-Douglas camp, Frankfurter turned against him, resenting his growing friendship with Black, and characteristically making doctrinal differences personal. He directed bitter, provocative remarks at the chief even in open court, but behind the scenes, he could be brutal. Once in conference, he shouted at Warren, “Be a judge, god damn it, be a judge!” Another time, when Warren interrupted one of Frankfurter’s interminable lectures to the brethren, Frankfurter was said to have retorted, “You’re the worst Chief Justice this country has ever had.” They were “ just uncongenial personalities,” one of their colleagues would tell the historian Bernard Schwartz—the intellectual versus the man of action. Relentless argumentation “was a recreation for Felix and this sort of attitude the Chief Justice just couldn’t understand. He had all his life been a peacemaker and, if you will, a compromiser and to get people working together—not to argue, to avoid confrontations, and Felix liked them.” Still, in Warren’s early years as chief justice, Frankfurter’s conservative “restraint” was the dominant tenor of the court’s decisions, with the activist bloc weakened by the losses in 1949 of Murphy and Rutledge.
IT WAS THIS conservative, cautious Supreme Court that confronted an egalitarian revolution sweeping across much of the country, spearheaded by the National Association for the Advancement of Colored People, whose strategy was to bypass the unresponsive political branches and to challenge racial discrimination aggressively through the courts. The Vinson Court had already faced up to specific cases of racial bias, in 1948 barring judicial enforcement of racially restrictive property covenants intended to prevent the sale of homes in white neighborhoods to African Americans. Two years later, in three cases decided on the same day, June 5, 1950, the court struck down segregation in an Oklahoma graduate school of education, a Texas law school, and in railroad dining cars. But hanging over these decisions was the grim visage of Plessy v. Ferguson’s “separate but equal” doctrine—the “South’s Magna Carta,” some called it—whose denial that “the enforced separation of the two races stamps the colored race with a badge of inferiority” had for decades distorted race relations in every aspect of Southern life.
So far the justices had evaded the broader issue of Jim Crow, agreeing with Frankfurter’s insistence that they “should not go out and meet problems.” The two school opinions had been unanimous because they were limited to barring segregation from graduate schools and because of the gross inequality of the facilities available to blacks. The justices could order desegregation not by overturning but by applying the “separate but equal” rule. But late in 1952 five cases from school districts around the country arrived at the court to challenge Plessy directly, by contending that even if black schools had equal resources, segregating children in public education violated the Fourteenth Amendment’s equal protection clause. The cases were consolidated as Brown v. Board of Education, the suit filed against the Topeka, Kansas, school district, where, because white and black schools were relatively equal in quality, the focus was on the fundamental principle of segregation. With Brown, the justices knew that the showdown had come. Vinson, who indicated that he was unwilling to overturn “long continued interpretations,” remarked enigmatically that “boldness is indispensable but wisdom is essential.”
Before the badly fragmented court could decide Brown, Vinson died, succeeded by a chief justice who did not think boldness and wisdom were irreconcilable. While new to the court, Warren was an experienced politician with an instinctive ability to herd fleas. At the start, with no more than five solid votes among the justices to abolish segregation in schools, he realized that only a unanimous court could make such a momentous verdict stick. In conference, he put the case against Plessy, pointing out that segregation was based on “a concept of the inherent inferiority of the colored race,” an idea that “in this day and age” was morally and constitutionally repugnant. He assuaged fears of upheaval in the South by promising an opinion that would produce “a minimum of emotion and strife.” The decision would apply only to schools, leaving the rest of Jim Crow, for the moment, intact. To meet Frankfurter’s fears that the Supreme Court would be drawn into the quagmire of enforcement, Warren agreed to delegate that task to the federal district courts. And he responded to concerns about the South’s reaction to an order for immediate desegregation by approving flexibility in implementation, permitting “different handling in different places.”
ON MONDAY, May 17, 1954, Chief Justice Earl Warren read Brown to a hushed Supreme Court chamber. In a firm but calm voice, Warren abruptly dismissed Plessy—in public education, “the doctrine of ‘separate but equal’ has no place.” To separate black children “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Separate schools were “inherently unequal” and therefore violated the equal protection clause.
It was a brief and not resplendent opinion. Warren had done what he could to minimize the drama. No announcement had been made that the decision was imminent. To avoid a big crowd or excited radio commentators, reporters had been led to expect a routine day at court. Warren hoped that by downplaying the ruling he might make it more acceptable to the country as a whole, but especially to the South.
That strategy—especially the decision to impose no definite deadline for desegregation—was surprisingly successful. “The end of the world has not come for the South or for the nation,” wrote the Louisville Courier-Journal. Equally important was the court’s unanimity behind Warren’s opinion. When he announced that solidarity in the courtroom, there was audible astonishment. As New York Times columnist Arthur Krock noted, “a familiar prophecy” had been that “there would be nine opinions written” and “close division on the central finding.”
Still the test would come when the decision began to be implemented in communities across the South. Already calls were going out for “massive resistance,” while Mississippi senator James Eastland declared defiance of this “legislative” decision by a court that “sits as a Constitutional Convention in judicial robes.” As Eisenhower remained silent, the chief justice felt deserted by the president, who would bear the ultimate responsibility for enforcement. Although he allowed that “the Constitution is as the Supreme Court interprets it,” Eisenhower believed that the court should never have tampered with Plessy. Desegregation, if it was to occur, would come through “a change in spirit,” not by judicial fiat. At a White House dinner while the justices were considering Brown, the president had taken the opportunity to explain to Warren that Southerners were not bad people. All they were concerned about “is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”
If Warren was frustrated by Eisenhower’s repeated refusals to endorse Brown, Ike was disappointed in Warren. The president had no weapon to challenge him except one—the lottery luck of four more appointments to the court. John Marshall Harlan, Ike’s first pick after Warren, to take Robert Jackson’s seat in 1954, had impeccable credentials—a degree from Princeton and a Rhodes scholarship to Oxford, and years of experience as a Wall Street lawyer and chief counsel to the New York State Crime Commission. He was also an old friend of Herbert Brownell’s. His confirmation was delayed by Southern Democrats irate over Brown. Much was made of the fact that Harlan was the grandson and namesake of the
great Plessy dissenter. And indeed Harlan would take progressive stands on civil rights, though on most other issues he was a Frankfurter loyalist, highly reluctant to overrule the political branches, and known more as a technician than as a legal philosopher. If he was called the Warren Court’s “most principled” conservative, it was a conservatism far distant from that of the Four Horsemen.
William Brennan, named by Ike to replace Sherman Minton in 1956, was a sharply contrasting figure. Born of an Irish immigrant father whose first job was in a Newark brewery but who ended up as a prominent Democratic politico in that city, Brennan was a scholarship student at Harvard Law who practiced labor law in Newark before taking a lead role in the reorganization of New Jersey’s judiciary, becoming a judge himself, and rising in a few years to the state’s Supreme Court. Eisenhower, facing a reelection campaign, was receptive to nominating a Catholic who had support in the church hierarchy. And by tapping a Democrat, the president could buff his prized “nonpartisan” image. Brownell—who claimed to have read all of Brennan’s judicial opinions, perhaps overlooking some outspokenly liberal ones—pronounced his record “outstanding.”
Brennan would have the honor of becoming the second of what Eisenhower called the two biggest mistakes of his presidency. The justice began as a skilled consensus builder, able to construct majorities, often on narrow grounds, from a fragmented court. Gradually he emerged as a leader of the liberal bloc and, with Black, its foremost libertarian. Brennan took such advanced stands, indeed, that Frankfurter, who had taught him at Harvard, reportedly said, “I always wanted my students to think for themselves, but Brennan goes too far.” As the years passed, Brennan became close to Warren personally, giving him solace as the chief grew old and more dependent on friends and admirers.
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 18