by Jim Newton
Richard Nixon had every reason to believe that he should be Eisenhower’s heir—he was the sitting vice president, a proven vote-getter, and an ambitious, skillful politician. But Nixon would always be Nixon, an irritant to moderates because of his red-baiting past, a source of anxiety and fear to liberals. Warren, on the other hand, was the architect of desegregation, the friendly California bear whose stature had only grown since he left the governorship and came to the Court. In early 1955, Gallup conducted a survey that found Warren the most popular Republican to succeed Eisenhower should the president not seek reelection. For Nixon, this was just one more in a line of indignities served him by Warren.
On April 15, with speculation rife about Warren’s decision, Warren wrote out in longhand a stiff rejection:
My name has been used as a possible candidate for the Presidency. This has been a matter of embarrassment to me because it reflects upon the performance of my duties as Chief Justice of the United States. When I accepted that position, it was with the fixed purpose of leaving politics permanently for service on the Court. That is still my purpose. It is irrevocable. I will not change it under any circumstances or conditions.
Concluding, Warren added, “Be they few or many, the remaining useful years of my life are dedicated to the service of the Supreme Court of the United States, in which work I am increasingly happy.”22 Before releasing the statement, Warren made only one change. He reversed the introductory clause of his final sentence, so that the final draft read: “Be they many or few . . .”
Warren’s withdrawal won widespread praise. Editorial writers hailed the decision, as did law school professors and deans and many others who wrote personally to Warren. They understood that with his unambiguous statement, Warren had raised the stature of the Court by removing it and himself from electoral politics and by making it clear that the presidency was not an office worth leaving the Court to pursue. It also had the effect—no doubt intended—of diminishing Nixon by reminding voters that where Nixon would presumably engage in the messy business of seeking votes, Warren was above that and thus above Nixon. That resolved the issue for the moment, but it returned in the fall, when Eisenhower suffered a heart attack, and eyes turned again to Warren. The chief justice received dozens of letters urging him to reconsider his withdrawal, given that Eisenhower now seemed unable to continue in office for a second term. This time, Warren remained silent.
Warren even turned the dagger a notch by use of a device that would serve him well in the coming years. He sought out a friendly journalist and told his side of the story. In this case, as in many others, Warren reached out to Drew Pearson. Since their first meeting in 1947, Warren and Pearson had maintained a respectful, professional friendship, and it grew closer once Warren arrived in Washington. Warren admired Pearson’s courage and talent, and Pearson wrote occasionally and favorably about Warren, whom he believed should have received the Republican nomination in 1948.23 By the time Warren came to the Court in 1953, Pearson felt sufficiently comfortable to drop by and chat about politics.24 With Pearson’s deep affection for Nina and with the bond between Nina and Pearson’s second wife, Luvie, the two families grew close through the early 1950s and formed a klatch of friends that included Adlai Stevenson and Agnes Meyer, heir to the Washington Post. Warren and Pearson liked each other, and helped each other. In later years, Pearson would deliver messages to the White House on Warren’s behalf, and now and again Warren saw to it that Pearson got a good story.
With Eisenhower’s health and future in doubt, Warren suggested to Pearson that he might consider running if it would block Nixon.25 That gave Pearson a scoop, and allowed both Warren and Pearson to enjoy the twitting it gave Nixon, of whom they shared a loathing. Eisenhower, himself sometimes suspicious of Nixon’s ambition, allowed the issue to sit, driving Nixon to distraction through early 1956. It was then that the president finally closed the speculation by announcing that he did indeed intend to seek a second term. With that, the matter rested, having only succeeded in alarming Nixon, amusing Eisenhower, and elevating Warren.
For Warren, however, the coming period in the life of the Court was to prove exasperating. Eisenhower flatly refused to push desegregation forward, while Warren flatly refused to back down. The result was a national standoff, which the resisting states exploited to delay and rebuff most serious attempts at integration. Through 1955 and 1956, the Supreme Court extended Brown to new spheres of American life, usually without even cursory explanation. In November, the Supreme Court upheld a Fourth Circuit opinion outlawing Baltimore’s segregated public beaches; the Supreme Court did not even bother with an opinion. At the same time, it reversed another lower court that had upheld Atlanta’s segregated golf courses. This time, the Supreme Court cited only its unexplained decision in the Baltimore case.26 Those decisions were perplexing if one relied on the literal text of Brown. Brown, after all, was narrowly tailored to address the particulars of harm created to children by segregated public schools. Its rationale was partly based on the explicit finding that segregation was bad for children. But was it bad for golfers? Bathers? Apparently so, for the Court applied its earlier reasoning and felt no need to elaborate. But if Warren’s approach was frustrating to judges and legal theorists, it was more defensible in the political terms that drove him. Warren understood that to announce the overturning of all state-sanctioned segregation was to invite rejection of the Court itself. Such a move would mean, among other things, that laws against interracial marriage would fall. Warren was too familiar with the ways of local government to delude himself about how that would be received. So he self-consciously decided to approach the problem piecemeal, never saying much, simply plowing ahead.
In that effort, Warren generally led a congenial Court, willing, even eager to follow his approach. Their comity knew its limits, however, as Warren was more aggressive than many of the other justices to push the nation along its journey toward desegregation. Late in 1955, the brethren came to an impasse in that debate, divided over whether to extend Brown in a precarious direction. As Myrdal had observed in An American Dilemma, the subtext for much of segregation was a lurking sexual distress, an unwillingness to tolerate so much as a hint of interracial sex, much less marriage. But Brown’s progeny seemed to suggest that the Supreme Court no longer regarded race as a suitable basis for separate treatment. What, then, of interracial marriage? Inevitably, the Court would be asked to consider that question, and in 1955 it was.
Han Say Naim and Ruby Elaine Naim were married in North Carolina, which did not bar the union of a Chinese man and a white woman. But Virginia was their home, and they had traveled to North Carolina to avoid prosecution under the Virginia antimiscegenation law. When they moved home and were caught, they argued that the equal protection clause forbade Virginia from barring their marriage. The Virginia Supreme Court disagreed. It ordered the Naims to dissolve their marriage, and, in doing so, pointedly cited Brown while noting that its holding with respect to public schools did not extend to interracial marriage. “Intermarriage,” as the Virginia court termed it, was not, like public education, the foundation of citizenship: “In the opinion of more than half the States it is harmful to good citizenship.”27
Mrs. Naim appealed. Her case, Naim v. Naim, posed an agonizing dilemma for the justices. To overrule the Virginia Court and restore the Naims’ marriage would invite an uprising throughout the South and would certainly undermine the Court’s attempts to impose Brown as slowly and dispassionately as possible. But to allow the Naims to suffer was to tolerate the very indignity that the Court was determined to wipe out. “So far as I recall, this is the first time since I’ve been here that I am confronted with the task of resolving a conflict between moral and technical legal considerations,” Harlan told the conference on November 4, 1955, when the issue formally came before the brethren. Harlan encouraged the Court to avoid the issue, as did Frankfurter. Over Warren’s objections, the Court returned the case to the Virginia Supreme Court under the pre
text of asking it to complete the record. That was nonsense, as all concerned knew the record was complete. The Virginia Court called the Supreme Court on its bluff and sent Naim v. Naim back to Washington, standing by its original decision in an act of near-defiance. Warren was incensed—not by the Virginia Supreme Court but by the cowardice of his colleagues. The Supreme Court then, embarrassingly, folded and refused to take the case.28
Warren was furious at the spectacle of his Court yielding to Virginia’s insolence. He contemplated a dissent from the Court’s refusal to set the case for argument, then reconsidered; a dissent, he reasoned, would only advertise divisions within his own Court. But he went away mad. “That,” he grumbled to his clerk, Sam Stern, “is what happens when you turn your ass to the grandstand.”29
The intriguing irony of Warren’s approach to desegregation was that the Court made least headway in the area it tackled most directly. Schools remained stubbornly segregated for years—in some cases, decades—as “all deliberate speed” came to mean much more deliberation than speed. But as Southern leaders concentrated their firepower on preserving white schools, their moral authority steadily diminished, and new converts joined the civil rights side of the struggle. Indeed, the most immediate impact of the Court’s invocation of American idealism against segregation was the infusion of energy that it supplied to the nascent civil rights movement.
In December 1955, less than a year after Brown and five months after Brown II, Rosa Parks refused to relinquish her seat to a white passenger on a segregated Montgomery, Alabama, bus. Martin Luther King, Jr., came to her aid, and the bus boycott was on. Direct action did not depend on a friendly United States Supreme Court, but it benefited by it. The Court’s ruling in Brown helped persuade advocates, black and white, that their struggle could reach the hearts of reasonable white people. On a basic, human level, it meant that Rosa Parks enjoyed the tacit blessing of the Supreme Court. Warren thus might not be able to move Eisenhower beyond terse statements of obedience to the law. But he was energizing the forces of change. He was, as he often would be over the coming fifteen years, a moral leader first and a judicial officer second.
Warren’s embrace of racial justice was not part of a broader rejection of America’s social order. He deplored the Communist Party and detested vice. He believed in police and prosecutors. He was no less a moderate and institutional man in 1955 than he was when he rose to the head of the Masons in California. As a result, Warren in his early months with the Court easily accepted the canons of judicial restraint in cases involving criminal justice. The clearest evidence of Warren’s early deference to the government came in a case that he would later describe as his worst mistake on the bench. It involved a bookmaker from Long Beach, California, and both the defendant and the jurisdiction weighed on Warren, whose protectiveness of California law and abhorrence of vice were two powerful influences. The bookmaker, Frederick Irvine, had applied for and received a tax stamp identifying the source of his income as gambling. Long Beach police then, without any warrant, broke into Irvine’s home on at least four occasions. They drilled a hole in the roof and installed hidden microphones, at first in a hall, later in Irvine’s bedroom and elsewhere. They then repaired to a neighbor’s garage, where they eavesdropped on Irvine and his wife for a month, accumulating evidence that he was a bookmaker. 30 When the case reached the Court, the justices were dumbfounded that police officers could behave so badly: “That officers of the law would break and enter a home, secrete such a device, even in a bedroom, and listen to the conversation of the occupants for over a month would be almost incredible if it were not admitted.”31
A bare majority of the Court upheld Irvine’s conviction anyway. Warren joined Jackson, Reed, Minton, and Clark in allowing Irvine to go to prison, a ruling that squared Warren’s belief in the goodness of California law with his distaste for bookmakers. What that left was the misconduct of the police, which would go unpunished by the affirming of the conviction. Warren eased his conscience there by joining Jackson in an extraordinary final paragraph of the opinion. In it, he and Jackson noted that federal law permitted prosecution of officers who, acting under color of authority, willfully deprived a person of a federal right, in this case the right to be secure in one’s home. Given that, Jackson and Warren concluded, “We believe the Clerk of this Court should be directed to forward a copy of the record in this case, together with a copy of this opinion, for attention of the Attorney General of the United States.”32
That same day, Warren Olney called Hoover directly to tell him of the Court’s ruling. Hoover at first misunderstood, believing that the Court had outlawed the use of illegally obtained evidence in state trials. Olney assured him it had not, but also warned that in light of the ruling, the Department of Justice wanted to see the officers investigated, and he suggested that the FBI “go ahead with its investigation and complete it without waiting for any one.”33 Hoover was skeptical. If the FBI were to take on this case, it would invite others, he said. He did not refuse to open the case—to do so would have invited a showdown—but he hardly leapt at the prospect of the FBI’s accusing police of violating the civil rights of suspects who were the subject of illegal searches. No case ever was brought against the Long Beach officers responsible for Irvine.
It is interesting to wonder what might have happened if those officers had been investigated and prosecuted. Warren’s sense of justice might have been vindicated, and though the price would have been some erosion in the separation of powers (the Court, after all, has no business recommending prosecutions; for that reason, Minton and Reed, while signing Jackson’s opinion, refused to join the personal note he and Warren attached to it), the result could well have been that Warren’s impulse to govern from the bench would have been sated. None of that occurred, however. The officers went back to their lives, and Irvine went to jail. Warren, already rebuffed by the Eisenhower administration on civil rights, was given new reason to brood about the Department of Justice and the FBI. Brown had taught him he could not rely on the president to enforce equality. Irvine came to convince Warren that he could not trust Eisenhower—or presidents generally—to enforce the Court’s rules in criminal justice, either.34
For Hoover’s part, Irvine offered the first hint that Warren as chief justice might not prove as accommodating as he had during his years as California’s attorney general and governor. And yet if the glimmers of their subsequent relationship were visible in that 1954 exchange, it was only barely. For now, Hoover continued to look out for Warren, and Warren availed himself of the Bureau’s many special services. When Congress approved a car for Warren—upon arriving at the Court, he was surprised to discover that none was provided, and Congress was shamed into providing him one after the press saw Warren step out of an airport limousine that brought him to a White House function—Warren asked the Bureau’s help in finding a suitable driver. Agents did their best, but could not find one for the Court. 35
The FBI was more helpful elsewhere. Warren was far away from home and children in 1954, and, as noted, those early months were trying ones. Back in California, Honey Bear was in college, and Warren’s little girl, whom he would not allow to spend the night during her ski trips to Lake Tahoe, now was on her own. So when an acquaintance visited the special agent in charge of the Los Angeles office to raise concerns about Honey Bear’s well-being, the Bureau took notice. Although the name of the busybody is deleted from the FBI’s files as released, he or she warned the agent that Honey Bear was dating an actor and that the two, according to the tabloids, planned a trip together to Aspen that winter. The agent took down the information and forwarded it to Washington. On February 1, with Hoover’s authorization, senior officials of the Bureau concluded that it was their duty to let Warren know that Honey Bear was rumored to have fallen in with, as their informant put it, “a bad crowd.”36 The following year Honey Bear became engaged, and Warren, perhaps still concerned about those earlier reports, asked the FBI to check out her fiancé, Stuar
t Brien. The FBI did, forwarding its conclusions to Warren on November 1, 1955. Although its findings have never been made public, Brien passed Warren’s muster. Honey Bear and Dr. Brien eloped and then settled into a long and happy marriage that pleased Earl and Nina greatly.37
Despite siding with prosecutors over criminals and, in his early years, giving latitude to the legislative efforts to uncover Communists, Warren could not shield himself and his Court from the backlash against Brown. It arrived in full force in late 1955, as the political leadership of the South vented its fury at the spectacle of the Montgomery bus boycott and the Supreme Court, which it perceived as responsible for this outbreak of activism. In Virginia, columnist James J. Kirkpatrick revived a discredited constitutional notion, the theory of “interposition,” whereby states reserved the right to interpose themselves between the federal government and their citizens on matters relating to the states. The theory rested upon the notion that the Constitution was a contract between the states and thus that they had the right to limit the federal government’s interference in their own affairs. As law, that was rubbish. The Constitution’s “Supremacy clause” leaves no legitimate room for misinterpretation: “The Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby.” And if that weren’t enough, there was the matter of the Civil War; one would think that would have been enough to demonstrate that the states were limited, to say the least, in their ability to defy federal authority. Ignoring all that, however, Kirkpatrick sputtered on, and did so with enough apparent authority to lend cover to those who wanted to reach his conclusions.