by Jim Newton
One of the Court’s most embarrassingly divisive and public conflicts came a few months before Warren’s arrival. As the Court prepared to recess for the summer, lawyers for Julius and Ethel Rosenberg, both convicted of espionage and sentenced to die, brought their final appeal to the Supreme Court. Justice William O. Douglas vacillated with the Rosenbergs’ case—for months, he had cast votes against them in conference. But then, as the execution date approached, he heard their arguments and abruptly decided he should stay their death sentences. On Wednesday, June 17, 1953, Douglas ordered the stay and then, without informing his colleagues, got into his car and headed West, dropping out of touch as the nation rose in outraged fury at the possibility that two convicted Communist spies would not meet their expected end. One telegram to Douglas summed up the nation’s feelings: “If you grant the Rosenbergs a stay, there will be a lynching party waiting for you here,” it read.3 The Court was deluged, as bands of angry protesters, some screaming anti-Semitic epithets, gathered outside the Court and the White House. Chief Justice Fred Vinson, urged by the Eisenhower administration, exercised a power he did not have and called his colleagues into special session. After a series of motions and votes, the Court agreed to hear oral argument on the issue that had persuaded Douglas to issue the stay. (The Rosenbergs had been convicted of conspiracy to commit espionage, and during the course of that conspiracy, federal sentencing laws spelling out the punishment for it changed; the question, then, was under which set of rules they deserved to be sentenced. It was an important matter, since at the outset of the Rosenbergs’ activities, the sentence would have called for death, but by the conclusion, that penalty had been reduced.) The Court then vacated the stay over the objections of three justices, including Douglas, who had hurried back to Washington after hearing on the radio that Vinson had called the Court into session.
Desperate, and with the nation arrayed against them, the Rosenbergs’ allies and family pleaded with Eisenhower to grant clemency. At Sing Sing prison, Julius and Ethel were allowed to spend the afternoon together, separated by wire mesh. They wrote a final letter to their children. “We wish we might have had the tremendous joy and gratification of living our lives with you,” Ethel wrote. “Your Daddy who is with me in the last momentous hours, sends his heart and all the love that is in it for his dearest boys.” Ike read the clemency appeal that night and refused it. The Rosenbergs were separated at 7:20 P.M. and put to death within the hour.4
That quenched the thirst of a manic American public eager to see the young couple killed for their acts of espionage. It also advertised the deep divisions within the Court, as the two sides had wrestled publicly with their differences on a matter of great passion. Summer for the Court in 1953 thus began in the shadow of the deaths it had authorized; vacation had not healed any of those wounds. Vinson’s death in September opened them yet again.
In broad terms, the Court that Warren joined in 1953 can be considered as two groups: four extraordinary jurists who would leave their imprint on American history for generations and four lesser justices. Yet even the dimmer lights were men of consequence. Sherman Minton was a commonsense man who was elected to the Senate from Indiana in 1934. While there, he served with such luminaries as Harry Truman and Hugo Black, both of whose lives would overlap considerably with Minton’s. The Indiana senator was intensely devoted to the New Deal and FDR, and those loyalties hurt him among Indiana’s conservative voters in 1940, when they cast him out. Without office but still helped by friends in high places, “Shay” Minton, as he was known, was given a place on the 7th Circuit Court of Appeals. Then, in 1949, with Truman in the White House, Minton was nominated for the Supreme Court. His former Senate colleagues approved him amidst much hope for Minton. As a justice, however, Minton followed an undistinguished course, his time on the bench almost as well remembered for his tobacco-chewing—during oral arguments, Minton would avail himself of the Supreme Court spittoon, in the process occasionally spraying an irritated Harold Burton when he missed5—as he was for his jurisprudence. Minton shrank from the challenge of wielding ultimate judicial authority. When Truman seized the nation’s steel mills in 1952 to prevent their shutdown by strike during wartime, six justices used the occasion to curb the president’s power.6 Minton dissented. His timidity in that and other national security and criminal cases disappointed some of his early supporters.
Harold Burton was the only Republican on the Court when Warren arrived in 1953. Nominated by Truman, the former mayor of Cleveland was extraordinarily charming, attentive to his friends, and beloved by his colleagues on the Court. His nomination to the Supreme Court was unanimously confirmed by the Senate—and on the same day that it was received. Yet, as a justice, Burton proved a mixed bag. He was cautiously, unpredictably liberal in his view of government power and the Constitution, and in retrospect is considered to be Truman’s most progressive appointee. Unlike Minton, for instance, Burton voted with the majority to thwart Truman’s seizure of the steel mills. Some Court observers thought him lazy, the result of his seeming absence from a leading role on important cases, but that was not true. Burton worked hard and was appreciated by his colleagues.7 He was not, however, armed with a clear sense of mission, and he exerted no effort to break new constitutional ground. Burton, one of the Court’s preeminent scholars noted, “was far happier in the role of follower than leader.”8 His legacy to the Court is most felt in connection with a personal habit, not an act of judging. Burton kept a diary of his Court years; it provides a running and relatively neutral—if sometimes spare—narrative of the Court during Burton’s years on the bench.
Joining Minton and Burton on the follower end of the 1953 Court were two justices from the periphery of the South, Tom C. Clark of Texas and Stanley F. Reed of Kentucky. Reed—whom William O. Douglas considered “the kindest, friendliest and most polite and courteous Justice”9 other than Burton. Reed had studied law at the Sorbonne, Columbia, and the University of Virginia, but had degrees from none. He learned practical law in the office of a Kentucky lawyer. Public service eventually drew him to Washington, where Roosevelt chose him as solicitor general—so overwhelmed was Reed by the position that he was said to have fainted at the opening of his first argument before the Court. Recovering from that setback, Reed amassed a run of well-regarded defeats as the government’s attorney in the early days of the administration, when the Court was in a surly mood toward reform. Reed moved to the Court in 1938, where he was a genteel though colorless figure, voting with the government in most cases and during the late 1940s tentatively wading into the tangle of desegregation. Indeed, segregation was a matter that Reed took personally: In 1947, when the Court clerks proposed to invite black Court messengers to their annual Christmas party, Reed refused to consider attending. Felix Frankfurter pressed him to reconsider, but integration was more than Reed could stomach. “He said this is a purely private matter and he can do what he pleases in regard to private parties,” Frankfurter noted in his diary.10 Reed’s courtliness endeared him to his colleagues, but in the bright light of more assertive justices, he cast little shadow of his own.
Tom Clark was more dynamic, and was, upon Warren’s debut, one of few justices with whom the new chief was acquainted. “The spindly Texan,” as Justice William J. Brennan, Jr., was later to call him,11 was hardworking and assertive, jaunty in his bow tie but generally cautious in his judicial writing and in his manner—“delightful, placid and slow-talking,” in the words of Drew Pearson.12 As a lawyer for the Justice Department during World War II, Clark had worked with Warren in the tragic effort to remove and then intern the nation’s Japanese-American population. Their paths also had crossed in matters relating to gambling and state-federal relations during the time that Warren was governor and Clark was the United States attorney general under Truman. Since his coming to the Court in 1949, however, Clark’s presence had faded, obscured by the dominating figures of that Court. His irritating habit of switching votes, sometimes in important cases clo
se to decision day, tested the patience of his colleagues, and his loyalty to law enforcement, particularly the FBI, placed him at odds with the Court’s civil libertarians. Truman came to regret placing Clark on the bench. “It isn’t so much that he’s a bad man,” the splenetic Truman remarked. “It’s just that he is such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.”13 That was unfair. Clark was bright and accomplished, and his stature grew over time. But Truman was right to suggest that on the Court where Clark served, he would never lead.
Clark, Minton, Burton, and Reed labored in the shade of four others, each committed to a constitutional and judicial philosophy, each seeing in the new chief a chance to add a vote to his column. To a man, each had been disappointed by Vinson, whose attempts to corral them had fallen short and irritated them in the process. Now they circled one another.
Rarely has the Court featured four such forceful and intelligent members as William O. Douglas, Hugo L. Black, Robert H. Jackson, and Felix Frankfurter, so different in temperament and philosophy, so bound by their position and era. The four were, when Warren arrived, engaged in disputes large and small, but none was as consequential as the debate over judicial activism, a dispute framed by the New Deal circumstances that placed each of them on the bench. Roughly speaking, Justices Jackson and Frankfurter had become advocates of a restrained judiciary, while Black and Douglas argued a view that gave the Court a more robust place in American life. Those were broad definitions, and all four were too complex and thoughtful to subscribe to them without caveat, but they set the basic terms of the pre-Warren Court.
Frankfurter was the Court’s professor. A tiny man of enormous energy and roving intellect, he had emigrated to the United States from Austria as a boy, then grew up on the Lower East Side of Manhattan and eventually taught a generation of Harvard Law students the intricacies of Supreme Court decision-making before coming to the Court himself in 1939. Frankfurter was a brilliant writer and a dedicated teacher—widely considered the nation’s preeminent constitutional scholar—but his restless intelligence pushed him beyond the academy. He helped found the New Republic magazine, championed the cause of Sacco and Vanzetti, and lobbied for a new trial for Tom Mooney. After graduating from Harvard Law School in 1906—when Warren was still in high school—Frankfurter worked briefly on Wall Street, but opportunities there were limited for a Jew, and he was lured by Henry Stimson to the United States Attorney’s Office for the Southern District of New York.
Like Warren, Frankfurter came of age as a Progressive, though his experience of Progressivism had a decidedly Eastern, intellectual cast. Still, there were parallels. Both approved of government action, of intervention intended to neutralize big business and to level the relationship between industry and labor. Both abhorred vice and what it did to working people. Among Frankfurter’s cases during his brief prosecutorial career were prosecutions of smugglers, gamblers, counterfeiters, and gunrunners, cases that placed him in defense of social order. That same band of defendants could easily have passed through Warren’s offices on the other coast. 14
But while Warren and Frankfurter each began their political lives in the thrall of Progressivism, they extrapolated different lessons from it. To Warren, the Progressives were inspiring because they took on fights and won them for common people; they taught Warren the values of nonpartisanship and stressed, for him, the value of bringing apolitical experts to the job of governing. Frankfurter would not have disagreed, but where Warren experienced politics as an actor and an extrovert, Frankfurter’s more incisive legal mind reached in a different direction, analyzing Progressivism in terms of its effect not only on government generally but also on the relationship between the institutions of government. Specifically, Frankfurter concluded that effective Progressive government required a restrained, deferential judiciary, one that allowed experts to lead and innovate in the legislative and executive branches. As he honed his thoughts on judging during his years as a leading constitutional scholar and Harvard law professor, Frankfurter increasingly came to see the judiciary as “cumbersome and ineffective” in the face of pressure for political change.15
His views were reinforced by the great debates early in FDR’s term, when the Court stood in the way of the president’s efforts to stimulate the economy. With the Depression casting millions of Americans out of work, Roosevelt understandably viewed his 1932 election—and overwhelming reelection in 1936—as a mandate for federal government intervention in the economy. Congress complied, passing attempt after attempt to stimulate the collapsed consumer demand that throttled attempts at recovery. The Court, however, was in no mood to defer. Led by the so-called Four Horsemen, the Court held the line against economic experimentation through the early 1930s, overturning any legislation that interfered in private rights of contract in order to secure socially desirable ends. The Court threw out laws providing pensions for railroad workers, setting prices and wages, setting minimum wages for women, and paying unemployment benefits, among others.16 Time and again, Roosevelt proposed, Congress approved, the Court cast aside.
By 1937, Roosevelt had been returned to office, and on the strength of that mandate, he set out to overcome the Court’s resistance. Without acknowledging the underlying purpose of his proposal—namely, to bring to the Court justices more amenable to his economic plans—FDR called on Congress to allow the president to name a new justice for every sitting member of the Court who was over age seventy. This, the president said, would help alleviate the strain on the Court, whose aging justices were struggling to keep up with their docket. The insult to the justices cost Roosevelt support there—Louis Brandeis, generally a New Deal supporter, was particularly incensed. More important, the obvious falseness of that position undermined Roosevelt’s credibility, and the proposal quickly was exposed for the “Court-packing” plan that it was. And yet, though it failed, the justices got the message: Owen Roberts, who had joined the Four Horsemen in overturning many of the earlier New Deal programs, in early 1937 reversed field and decided to uphold a minimum-wage law from Washington state. Although Roberts changed his vote in conference before FDR announced his Court-packing proposal, the decision was announced afterward. Many have speculated that it was at least influenced by the growing public antagonism toward the Court and at most directly affected by early knowledge of FDR’s proposal. In either case, the “switch in time that saved nine” achieved what the president was seeking without adding new members to the bench. It brought the Court into line with the new economic demands of the Depression and the perceived need for aggressive executive action without judicial interference.
To Frankfurter, then at Harvard and both a friend and an adviser to Roosevelt, the Court’s resistance to change through those early Depression years validated his belief that judges should defer to executives in order to make way for social and economic progress. In that view, Frankfurter was heir not only to Progressivism but also to the considered jurisprudence of some of the Court’s great visionaries, notably Brandeis and Frankfurter’s idol, Oliver Wendell Holmes.
By the time Warren arrived, in 1953, Frankfurter had been on the bench for more than fourteen years and had sharpened his views on judging into a hard philosophy of judicial self-denial. He had, moreover, become something of a scold. Fond of lecturing his colleagues, Frankfurter steadily had worn away his welcome with several; Douglas in particular had given up suffering Frankfurter and turned instead to nettling him. Eventually, Douglas would grow so exasperated that he would walk out of the conference room while Frankfurter was speaking, tossing back over his shoulder instructions to be summoned when Frankfurter had finished. The rest of the justices accepted his cloying condescension with varying degrees of equanimity, but Frankfurter’s manner, by the early 1950s, had left him increasingly in a fight for support. In Warren, then, he hoped for a colleague and a vote, a fellow Progressive who had served as an innovative chief executive, just the sort of leader who, Frankfurter hoped, would allow g
reat latitude by reining in the judiciary. Frankfurter thus greeted Warren’s arrival with great hope.
Frankfurter’s most eloquent ally on the Court in 1953 was Robert H. Jackson, arguably the greatest courtroom advocate ever elevated to the Supreme Court of the United States. Precise and direct, a master of the simple metaphor and the gentle witticism, Jackson was so gifted at argument that during his years as solicitor general, Justice Brandeis once remarked to Frankfurter, “Jackson should be Solicitor General for life.”17
In contrast to Earl Warren’s lackadaisical youth, Jackson showed his promise early, excelling under the tutelage of a high school teacher in the rural New York where he grew up. He was, from his earliest days, determined and independent. Taken young by the law, Jackson defied his father, who saw no future for a lawyer and refused to help his son pay for law school. Robert Jackson borrowed the money instead, and attended a year of law school before striking out on his own. After passing the bar, Jackson built a successful small-town practice and caught the eye of New York’s governor, one Franklin Roosevelt. As president, FDR shuffled Jackson through a series of important posts. Jackson served as general counsel to the Internal Revenue Service, where he earned national attention for his tax-evasion prosecution of Andrew Mellon (Mellon was forced to pay $750,000). Jackson then moved rapidly through a series of Justice Department positions before becoming solicitor general in 1938, a role at which he was so effective that some maintained he elevated the Court itself by the logic of his arguments.18 In 1940, Jackson became FDR’s attorney general, succeeding Frank Murphy in that job at the age of forty-seven. The following year, when Chief Justice Charles Evans Hughes retired, Jackson followed Murphy again, this time to the Supreme Court.