by Jim Newton
The occasion was a White House dinner, one of the stag affairs the president hosted regularly. Warren accepted the invitation reluctantly, as the events were an occasion to talk politics, and though Warren loved few topics more, he was reluctant to discuss political matters in public, even the guarded public of a White House dinner. Still, he was not a man to say no to a president, much less the president who had appointed him, so he accepted.20 Arriving that cold February night, Warren was seated to Eisenhower’s right, and within speaking distance of them both was John W. Davis, South Carolina’s lawyer in the Brown case. That alone was more than enough to offend Warren’s sense of propriety, but as the night wore on, his tension increased as Eisenhower again and again made a point to tell Warren what a fine and impressive man Davis was. Thurgood Marshall, of course, was nowhere in sight, so Davis’s presence alone demonstrated that the president’s admiration for the lawyers in the desegregation cases was limited to the premier lawyer for the South, not his NAACP counterpart. Then, as the dinner ended, Eisenhower led his guests into an adjoining room for drinks and cigars. As the two men passed from one room to the next, Eisenhower took Warren by the arm and confided in him. The Southern states, Eisenhower said to Warren, were full of good will and good intentions. “These are not bad people,” the president said. “All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”21 Warren never forgave Eisenhower that crude and stupid remark.
As the justices discussed the segregation cases together in conference and in smaller groups of two and three, Warren found time for a short retreat. He arranged with his chauffeur, a black man, to go on an overnight tour of Southern Civil War monuments outside Washington, D.C. They headed south through Virginia, touring various sites. As afternoon slipped into evening, Warren asked his driver to stop at a local hotel for the night. The two made arrangements for the man to pick Warren up in the morning, and then Warren went inside to register, not really paying attention as his driver shrank back. Perhaps, Warren thought distractedly, he was heading for a cheaper place to stay for the night. The following morning, when the chauffeur came to pick Warren up, it was clear to the chief justice that the driver had spent the night in the car. “What happened?” Warren asked. “Didn’t you go to a hotel? Have you slept here all night?”
“Well, Mr. Chief Justice,” the driver replied hesitatingly, “I just couldn’t find a place—couldn’t find a place to . . .”
Listening to his chauffeur’s halting reply, it suddenly dawned on Warren that he had brought a man to a town that would not allow him a room, that the personal assistant of the Chief Justice of the United States was not worthy of a bed in a segregated hamlet within a day’s drive of the nation’s capital. “I was embarrassed,” Warren remembered toward the end of his life. “I was ashamed. We turned back immediately.”22
Warren was a man who felt most strongly what he experienced directly, and on that day, he was slapped by this direct confrontation with such an odious practice. One can well imagine him in the car, the miles rolling by as he seethed at the indignity to his aide, angry with himself for creating the opportunity for that shame. Warren retained the bitter memory of that day for twenty years, telling it to his children and grandchildren and recounting it to a reporter just a few months before he died.23
The indignity of segregation hit Warren hard, but it was not enough, by itself, to shock the Court into action. Even as the end of the term approached, some of the justices remained doubtful about their authority to bar a practice so long sanctioned by the Court. Of the uncertain justices, none was more conflicted than Jackson. A few days before the second round of oral arguments in Brown, Jackson had begun to draft a long rumination on the case, one that appears to have been styled as a concurrence.24 The justice continued to work on it in the early months of 1954, and in his memo, Jackson fretted about the implications of “judicial fiat,” even when directed at so worthy a cause as Negro integration. Jackson wished that Congress would abolish segregation, but worried that if the Court did what Congress would not that it would undermine the Court’s prestige and call its legitimacy into question. “Precedent, a usual source of law, is wholly against the idea that the Constitution requires not only equal facilities but mixed and unseparated use of them.”25 And yet for all his reservations, Jackson could not bring himself to uphold school segregation. Instead, nearing the end of his long memo, he concluded that Negroes had advanced so far in their years of segregation that they had “overcome the presumptions on which it was based.” It was a tortuous analysis, revealing the intense strain upon Jackson as he wrestled with one of the most difficult decisions of his life.
Fortunately for Jackson, one of his clerks that term was E. Barrett Prettyman, Jr., an intellectually gifted and personally brave young man. Prettyman urged Jackson to reconsider his approach and not to make a decision undermined by its own argument. Prettyman put his thoughts down in writing, typing them up himself and hand-delivering the copy to his justice. Prettyman implored Jackson to think again, in legal as well as political terms. Whatever the Court decided, Prettyman wrote, the American people “should be made to feel that the decision is honestly arrived at, confidently espoused and basically sound. They should feel that it expresses certain truths, even if they aren’t quite prepared to accept fully those truths themselves or to practice them.” Jackson’s clerk proposed that the justice turn his opinion upside down, beginning with the assertion that “there is no longer a basis for separate but equal facilities,” and only once having stated that as a matter of law going on to express caveats or concerns. “I say this in all frankness,” Prettyman wrote, “if you are going to reach the decision you do, you should not write as if you were ashamed to reach it.”26
Reflecting on Jackson’s work years later, Prettyman explained, “I thought it said some things which would give grounds particularly to those in the South who were combating any decision striking down segregation.”27 Prettyman knew Jackson intended no such thing. Prettyman’s heroism was his willingness to tell his justice of the trap he was creating; the young man’s grace was in his ability to say that convincingly.
By the end of February, Warren was confident that most of the wavering justices were preparing to join him. It was then that he brought the matter to a head. In his memoirs, Warren recorded that the justices first voted in late February, but others at the Court believe it more probably occurred in early March, and that seems more likely, since Warren received his belated Senate confirmation on March 1.28 Whatever the date, it sealed the outcome. A clear majority now was on board to rule for the NAACP plaintiffs; the exact number would depend on the opinion itself. The justices urged Warren to write, believing that the Court would speak most authoritatively in the voice of its chief. And so Warren took pencil to yellow legal paper in the privacy of his chambers and began to work. Revising as he went, the new chief justice sketched the opinion in broad, simple strokes.
Warren opened with a straightforward if uninspired recitation of the cases and their histories, recounting briefly their route to the United States Supreme Court. That section ended with the Court’s assumption of jurisdiction, then left a space in which Warren intended to recount the basic question underlying the litigation. By page 3, Warren had turned to the reargument and the questions relating to the Fourteenth Amendment and the intentions of its authors. Here, Warren reached the conclusion that the justices had finally come to, and relied most heavily on the presentation of the government to bolster his conclusion. “It [the government] concluded that the Legislative history and the contemporary statements . . . of the Amendment as it applied to these cases were”—and here Warren struggled for the right word, crossing out several attempts before writing, “inconclusive.” “This is not surprising,” he added, “because neither the Constitution itself nor any of its amendments have been adopted under circumstances comparable to those in 1868 surrounding the adoption of the Fourteen
th Amendment.”29
Specifically, Warren wrote, the “fratricidal warfare around the status of the negro in American life” created such turmoil and division in the nation that its shadow over the debates on the Fourteenth Amendment clouded its true intentions. This was not Warren at his finest. The Constitution itself, after all, was written in the aftermath of a bitter war and agreed to amid deep divisions over the status of Negroes. How, then, could one rely on the intentions of its framers if not on those of the Fourteenth Amendment? But he was new and still drafting.
By page 5, Warren was writing more quickly and more forcefully. The pages were clearer, with fewer evident reconsiderations. Here Warren turned to Plessy v. Ferguson, and he took his sharpest aim at the Court itself. Warren accused the 1896 Court of attempting to “serve two masters, 1, the master of equality under the laws and 2, the master of racial concept as it existed at the time in the Southern states of the Union.” After that sentence, he added an elaboration in the margin: “It endeavored to retain both the philosophy of the Dred Scott case and the principle of the Fourteenth Amendment.” He then turned to the judicial history that had arisen from that tension, leaving a space to later insert the details of the Court’s line of education cases that attempted to implement the doctrine of separate-but-equal.
Concluding that passage, Warren turned to his sociological argument: Whatever the framers had believed in 1868 and whatever the Court had meant by its attempt to balance equality and social customs, the changing nature of education had rendered both moot. Here Governor Warren was comfortable expounding. Whereas public education was “not an accepted fact” at the time of the Fourteenth Amendment’s adoption, contemporary public education, Warren noted, represented the “major function and expense of local and, in many states, state government.” The relationship between students, parents, and government was, in contemporary life, a highly intertwined one, he went on. Students were required to attend school, and parents allowed school officials certain rights of supervision and discipline. In return, schools were responsible for equipping their students for “a place in local and national life.” It may not have been true in the nineteenth century, but in the twentieth century, Warren wrote, “No child can reasonably be expected to succeed in life today if he is deprived of the opportunity of an education.”
Those sentences represented an important and fateful choice. With them, Warren was deliberately confining his decision to education, thus limiting its attack on Plessy v. Ferguson. For while Plessy sanctioned all manner of segregation, Warren built an argument only for striking it down in schools. Children might, after all, be expected to succeed in life despite the inconvenience or indignity of separate-but-equal railroad cars, just not classrooms. By limiting the scope of his ruling, Warren shrank the opportunity for resistance, a tactic deliberately intended to soften Brown’s immediate impact. In addition, its emphasis on the growing vitality of schools allowed him to avoid a direct confrontation with those who believed they had built their schools in compliance with both custom and law. They had done nothing wrong, Warren was saying in effect. It was just that times had changed. In retrospect, limiting the scope of Brown would prove a weakness in the decision, as the Court relied on its holdings to justify desegregation of other institutions. It was difficult to see later how Brown supplied the rationale for desegregating beaches or water fountains, say, when it so explicitly identified the harm caused to children in schools. But in 1954, Warren was principally concerned with overcoming the expected resistance to school desegregation. He was not ready to fight a wider war.
Having done what he could to limit the ruling, Warren then built to the decision’s high point, framed as a question and then answered. He was at page 8 now, and it is clear from his draft that he labored over it. Sentences were crossed out, words and other sentences inserted. By the time he was finished, the page was covered in tiny script, thoughts presented, abandoned, and revised. But the stirring, simple words that would mark Brown’s ultimate passage were there, in Warren’s hand: “Does segregation [and here Warren inserted the following three words; emphasis added] of school children solely on the basis of color, even though the physical facilities may be equal, deprive the minority group of equal opportunities in the educational system? We believe that it does.”
Warren there added a memorable margin note that revealed much about its author: “To separate [Negro children] from others of their age solely because of their color puts the mark of inferiority not only on their status in the community but upon their little hearts and minds in a fashion that is unlikely ever to be undone.”
If Warren’s section on education was the governor writing, this was the father, the man so hurt by Honey Bear’s loneliness that he bought her a pony; the man so shattered by her illness that he wept in the hospital hallway; the father so attentive to his adopted son that he took him as his own and never gave him reason to feel distant from his siblings; the son who looked up to his own limited father, only to see him murdered; the man so guarded with so many of his feelings and yet so singularly vulnerable to the pain of children. How could such a man not be moved by wounded “little hearts and minds”? Warren felt for those black children. And where Earl Warren’s heart went, his sense of fairness followed.
Warren finished his work sometime in late April. On April 29, 1953, he turned it over to a young man he had met barely seven months earlier.30 Earl Pollock was one of the bright young clerks whose time with the United States Supreme Court has enlarged its thinking even as it prepared them for their futures in the law. Pollock was a graduate of Northwestern Law School and had won a coveted clerkship with Chief Justice Vinson. He arrived in the heat of a Washington summer in 1953 and settled into the imposing surroundings of his new workplace. Vinson was a congenial boss, and Pollock liked him. One night in September, Pollock and his wife gave the chief justice a ride home to his residential hotel. Vinson seemed in good health and cheer. Two days later, word arrived over the radio that Vinson was dead. As the nation grieved, so did Pollock. And for him, the death of the chief justice also meant a potentially abrupt conclusion to Pollock’s own service to the Court. “I was very unclear in my mind about whether my clerkship had ended,” he remembered.31 He was temporarily assigned to Black and began sifting through offers to join one of several Washington law firms. But one of Warren’s first stops upon arriving at the Court was in his new chambers, where Pollock and two other clerks, as well as secretary Margaret McHugh, anxiously awaited his first words. After hearty handshakes, Warren assured Vinson’s team that he wanted them all to stay on. Relieved, Pollock went to work for his new boss, struck, as virtually all new Warren acquaintances were, by the radiant vitality of the man.
Pollock never saw the yellow sheets of legal paper upon which Warren recorded his initial thoughts. Warren’s secretary typed those for him. But what he received were Warren’s words, along with specific instructions that illustrated Warren’s hopes for the final product. The opinion was to be kept short so that newspapers would reprint it. It was to be written simply, because its audience was not meant to be just lawyers and judges but the millions of laypeople whose lives would turn on its reasoning. It had to be, Warren stressed, “accepted and understood by the American public.”32
Pollock took the draft home and went to work. He kept intact much of Warren’s recitation of the case history, though he amplified it considerably. With what he called the “hubris of youth,”33 Pollock tossed out Warren’s inartful rendering of the intent of the Fourteenth Amendment’s authors, substituting instead a more thoughtful examination of the gaps in the congressional record. Pollock retained Warren’s passages on the evolving nature of public education and found ways to elaborate while still holding on to the essence of Warren’s analysis. He worked around the clock, energized by the thrill of writing legal history, writing in longhand, barely pausing. In the end, his work adopted the best of Warren’s cool reasonableness and of his calm, signature phrasing while dropping some of
his least careful legal reasoning. Finally, Pollock realized in the drafting that Warren could not resolve all five cases in one opinion, since the Fourteenth Amendment was directed at the states and thus could not be construed to apply to the District of Columbia.
Pollock straggled back to work on Monday morning, his rewritten Brown opinion in hand, along with his recommendation for the separate opinion in Bolling and for some of the language that it might contain. Under no circumstances would Warren sanction opinions that struck segregation in the states but preserved it in the nation’s capital, and Pollock proposed a way to avoid that. The Fifth Amendment bars the federal government from depriving any person of “life, liberty, or property, without due process of law.” “Liberty,” as interpreted by the courts, includes the “full range of conduct which the individual is free to pursue,” and thus denying black children of their right to an equal education represented an unwarranted intrusion on their liberty. Happy to see a way out of the conundrum, Warren readily agreed to Pollock’s argument and sent his clerks to work on a separate opinion in Bolling.
Warren’s other clerks set about that work, and the draft that they completed and that Warren approved was, in its own way, a clearer expression of Warren’s heart. Writing there, Warren authoritatively proclaimed that the due process clause, like the Fourteenth Amendment, stemmed “from our American ideal of fairness.”34 One might well ask, Whose idea of fairness? But Warren was profoundly confident of his own footing. If he knew one thing when he saw it, it was fairness. He was not to be disabused of his abiding intuition when it came to simple matters of right and wrong. In an ironic capstone, given his own shameful conduct in the Japanese internment cases, Warren now cited the reasoning from that period in support of desegregation. The majority in Korematsu v. United States had upheld the internment but warned that racial classifications were to be permitted only when they served an important government objective—in that case, national security. Segregation served no such legitimate purpose, Warren now wrote, so the same rules that upheld his views of the internment now upheld his views on desegregating schools. Warren’s most revealing line in Bolling, one suggested by Pollock but accepted by his boss, was this: “In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”35 For Warren, it was “unthinkable” because the Constitution was a good and fair document written for a good and fair country. In such a country, it was “unthinkable” that acts of manifest unfairness could be constitutional.