by Jim Newton
The more I get of your present Chief, the less do I admire him. It is all very well to have a man at the top who is really aware of the dominant trends, but isn’t it desirable to add a pinch or two to the dish of what we used to call “law”?9
A mutual friend of Hand’s and Frankfurter’s, Hand added, had taken to referring to Warren by a new nickname: “That Dumb Swede.”10 Frankfurter did not adopt the nickname in that exchange of letters, but by the end of the decade he was using it with his clerks, encouraging them to distrust and disparage the chief justice. 11 In unguarded moments with friends, Frankfurter made clear that he regarded Warren as a fool. Writing to Harlan, for instance, Frankfurter described one of Warren’s opinions as “crude, heavy-handed, repetitive moralizing,” and described the experience of reading it as akin to “eating rancid butter.”12
Warren was a big and successful man. He came to the Court with a public career far broader than Frankfurter had accumulated. He was in no mood to be patronized. But Frankfurter lectured and lobbied, convinced that he could lead Warren by imposing his superior intellect on the mere politician who now served as his colleague and chief. Early on, the chief justice grew suspicious of Frankfurter’s attempts to woo Warren’s clerks; Warren gently but clearly directed them to cut off contact with Frankfurter.13 In conference, Warren suffered Frankfurter’s lectures with lessening patience. “All Frankfurter does is talk, talk, talk,” Warren blurted at one point. “He drives you crazy.”14 For the most part, Warren suffered Frankfurter, but occasionally he lost his temper. In conference one day, Frankfurter was snickering and passing notes as Warren spoke. Warren blew: “I am goddamn tired of having you snicker while I’m talking. You do it even in the courtroom and people notice it.” Frankfurter denied it, but Warren dressed him down anyway, much to Douglas’s delight.15
Frankfurter was a distraction, but not enough of one to keep Warren from pursuing an amicable Court. Warren built his alliances upon common purpose and mutual regard. Until illness and philosophical drift helped undermine their relationship in the 1960s, Black was Warren’s most important mentor, the guide who offered him a route toward judicial leadership and a genial host who provided both Earl and Nina Warren warm evenings in his Arlington home. In 1954, the two families shared Thanksgiving, the first of many holidays that would bring the Blacks and the Warrens together. Earl and Nina brought Virginia and Honey Bear; Hugo was accompanied by his daughter, Josephine, who lived with the justice for a time after his wife died.16 “Hugo was a great friend to my father, and we loved Jo Jo,” Virginia recalled decades later.17
At the Court, Warren relied on Black, often meeting with the senior justice just before and after Court conferences to plot strategy for those vitally important meetings. Theirs was a trusting friendship. Black felt free to make suggestions about which justices might best handle certain cases, and Warren usually concurred. 18 That gave Black enormous influence over the Court. And as Warren came to appreciate Black, it drove him still further from Frankfurter, personally and philosophically. For not only did Black offer gentility and friendship, he also presented Warren with a theory of judging that allowed Warren to be the chief justice he imagined being. Eventually, Warren would move even beyond Black, but in those early years, with Frankfurter sniping and condescending, with Black cajoling and entertaining, Warren slid easily under Black’s wing.
Among the other justices, Warren tended carefully to Clark and genuinely enjoyed his bright spirit. Warren and Clark would duck out of Washington for quick hunting and fishing trips, and the two enjoyed swapping stories from their old days. For altogether different reasons, Warren developed a fondness and appreciation for Harlan, whose dignity impressed him, even if Harlan’s politics were of a different sort. When Harlan suffered from health problems, Warren tended to him—late in life, Harlan’s eyesight began to fade and he contemplated retirement. Warren persuaded him to stay and arranged for him to have an extra clerk to help with reading.19 And yet even within those binds of collegiality and admiration, Brennan would always be special. He was different from Black, less a mentor and more a friend. And he was closer to Warren philosophically than any other member of the Court. Their bond began slowly but developed in the full richness of a lasting friendship, one that combined political solidarity with mutual reliance. From Warren, Brennan received key opinions and important counsel; in Brennan, Warren found a master of legal writing who could translate Warren’s leadership into solid legal doctrine. It is one of American history’s amusements that these two pillars of judicial activism, who hunted down injustice in order to toss it from the Constitution, were both appointed by a president who had no sympathy whatsoever for that style of judging.
For the balance of the Court, Warren attempted to forge unity by good cheer, hard work, and fair management—he distributed opinions evenly, spreading the workload among them. His own chambers were calmly professional, reminiscent of the governor’s office, though on a much smaller scale. Two women—Margaret McHugh and Maggie Bryan—handled secretarial duties and scheduling, while his clerks, all of them men, did legal research and drafting. Unlike most of the justices, whose clerks worked out of adjoining offices, Warren’s worked on a separate floor (space did not allow them to work next to Warren’s chambers). They met frequently with Warren, however, sometimes as a group, other times individually, to discuss opinions or memoranda. Although the workweek was focused, Warren treated his clerks to lunches most Saturdays. They would generally work in the morning and then head for lunch at one of Warren’s clubs or a local restaurant. There, Warren relaxed, as his clerks would politely draw him out on his favorite subjects—California and politics. Warren liked to talk on those easy afternoons. One clerk, Doug Kranwinkle, introduced him to vodka gimlets, and Warren would sometimes enjoy a drink or two as the afternoon wore on.20 He was garrulous and comfortable, secure in the sanctity of his conversations with these close and devoted aides. And yet Warren maintained a reserve. He was welcoming but not casual, and he was deeply protective of the Court.
Once, when the Court clerks voyaged to the Justice Department for a lunch with Attorney General Robert Kennedy and ended up insulting their host, Kennedy retaliated by writing an article in which he ridiculed them. Warren, appalled, upbraided the clerks by reminding them that they did not exist as a group—that their allegiances were to their individual justices. All future lunches, he decreed, were to take place at the Court, not elsewhere. Chastened, the clerks agreed.21
Nina rarely joined Warren at the office or with his clerks; few of those who served Warren over the years felt they got to know Nina well. At home, however, she continued to arrange the Warrens’ lives. The children were, of course, gone by the late 1950s, but they visited often, and Nina and Earl annually returned to California. In Washington, Nina performed the social graces expected of a chief justice’s spouse—she presided over events involving the Court wives, and she maintained social contacts with other Washington figures. Her cakes became her signature, the recipes captured in Washington cookbooks, and her delivery honed to an art. Every January, Nina bought scores of boxes, which she stacked near the kitchen. As she baked, she packaged and delivered. Neighbors at the Sheraton-Park were frequent recipients, but Nina doled out cakes to friends and luminaries alike. When Richard and Pat Nixon traveled overseas in 1958, Nina sent their girls a pair of cakes, one with pink icing, the other with chocolate.22
In Washington’s social circuit, Warren represented the Court and was well received. He appeared at functions almost weekly, often appearing at embassy receptions and particularly agreeing to attend those of smaller countries. Warren even managed to coax the other justices along with him in an annual public ritual. Starting in 1954, he arranged for the Court to travel as a group to the Army-Navy game, the perfect outing for a justice looking to project patriotism and still eager to take in a football game. Warren tended to the smallest details. He booked a special train car that the justices and their wives would take from Washington’s Un
ion Station in the morning. A light breakfast was served on the train, along with morning drinks. The Court and Court family then attended the game and returned to Washington by train that evening, dining together as the cars rumbled home in the dark. It was a festive, family gathering of the type that Warren loved. Most of the justices came to appreciate it as well, though Frankfurter and Black, who disagreed on so much but shared a distaste for sports, rarely attended. For those who did attend, it was both a chance to put aside their differences and a rare opportunity to present themselves in public, unrobed and as a family, not a bench.
Soon after arriving to the Court, Brennan joined the brethren on the trip to the game, bringing with him his oldest son, William Brennan III. The younger Brennan, recently mustered out of the Army, came in uniform, eager to show off his service to the members of the Court. Warren greeted him with the booming welcome of a friendly uncle. He asked about his service, his college life, his friends and family. After the game, young Brennan sat near Warren as the justices and their families dined. And upon returning to Washington, William Brennan took Virginia Warren to a movie. “It was one of the nicest days of my life,” he said fifty years later.23
The Court’s growing esteem—except, of course, in much of the South and in such places as the White House—lifted all the justices with it. Stories about division on the Court, rife in Vinson’s day, gradually disappeared. Controversy surrounding the Court did not, however. On the day before Eisenhower’s reelection, Steve Nelson, the Pennsylvania Communist whose earlier case had riled conservatives, returned one more time to the Court after the Justice Department was informed that a witness against him had lied in other cases. Conceding that, the government wanted the trial court to investigate whether the witness’s testimony against Nelson—who was charged under his real name of Mesarosh—was truthful. Over the objections of Frankfurter, Harlan, and Burton, Warren refused and instead granted Mesarosh a new trial. “The government of a strong and free nation does not need convictions based upon such testimony,” he wrote.24 That briefly revived the uproar over the Nelson case, but the tribulations of that fall would seem small indeed compared with those that Warren and the brethren unleashed the following spring.
The first tremor of the Court’s end-of-term rush came in an opinion by Brennan. Since just after Brennan’s arrival in the fall, the justices had debated the case of Clinton Jencks, a union president who in April 1950 had filed the required affidavit swearing he had never been a Communist, only to have the government then contend that he had lied.25 At issue was Jencks’s right to confront witnesses who testified against him—specifically, the right to review reports made by the informants to the FBI so that they might be cross-examined about them. At trial, Jencks’s lawyer had asked the witnesses about their reports, but both said they could not recall what they had said at the time. That cut off that line of questioning, so the lawyer asked that the reports be turned over to the judge so that the judge might review them and then decide which, if any, the defense was entitled to use in cross-examining the government informants. The judge denied the motion without explanation, and that decision was upheld on appeal.26
When the Supreme Court first discussed the Jencks case, Warren again set the tone, announcing that he could not see how Jencks could receive a fair trial without access to the reports needed to question witnesses against him. At first, the brethren were divided on the question of who, if anyone, could read the reports. Some favored giving the records to the defendant, while others would agree only to let the judge review them. “It is O.K. to let the judge see them, but not the lawyers,” Clark said at the Court’s first conference on the case. 27 Jencks’s lawyers asked only that the material be shared with the judge, but Warren and Brennan were unwilling to stop there. Instead, they took the unusual position of arguing that Jencks deserved more than he asked for, that he himself deserved the reports if the witnesses who wrote or conveyed them were going to testify against him.
They carried the day, with Brennan writing for himself, Warren, and two others. Frankfurter joined them in all but a side discussion about the jury instructions to be given at Jencks’s retrial, and Burton and Harlan joined in the outcome but urged that the trial judge be allowed to screen material before handing it over to a defendant. Only Clark dissented from the conclusion that Jencks deserved a new trial, but he did so in such angry language, the most memorable of his career on the bench, that he virtually ensured the reaction outside the Court. Allowing a defendant to peruse the reports, Clark warned, “afforded him a Roman holiday for rummaging through confidential information as well as vital national secrets.”28 The Court’s critics could not have agreed more, and even as they loaded up for another round of Court-bashing, Warren and the brethren tossed them a sack of ammunition.
Four decisions were handed down on June 17, 1957, and with them the Warren Court demolished much of the nation’s anti-Communist domestic-security program. Warren took charge of two cases himself, and his decision to write those opinions is revealing. Both—Watkins v. United States and Sweezy v. New Hampshire—turned on the question of how far legislative bodies can go in conducting investigations. Both Warren rulings served to curtail the power of legislatures, state and federal, to force witnesses to cooperate with legislators seeking to expose or embarrass their witnesses. In Sweezy, the New Hampshire attorney general, at the direction of its legislature, had corralled a Marxist economics professor from the University of New Hampshire and ordered him to discuss his lectures and involvement with the Progressive Party. The professor, Paul Sweezy, refused to answer. The attorney general then haled Sweezy into state court, where Sweezy again refused, and was held in contempt.29
In Watkins, the questions were put by the House Un-American Activities Committee and were addressed to a labor organizer named John Watkins.30 Watkins denied that he had been a Communist but freely acknowledged that he had supported Communist causes. Watkins would not, however, tell the committee about people with whom he had associated:
I do not believe that such questions are relevant to the work of this committee nor do I believe that this committee has the right to undertake the public exposure of persons because of their past activities. I may be wrong, and the committee may have this power, but until and unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the political activities of my past associates.31
For asserting that principle, Watkins was convicted of contempt of Congress, a misdemeanor.
Warren well knew the gravity of challenging the right of legislatures to hunt down and expose Communists. Although McCarthy was dead by 1957, McCarthy-ism was kicking, and the spectacle of congressional committees dragging witnesses before the bar and badgering them into giving up their friends and associates was a grim leitmotif of the entire Cold War. The Court had long stood by and allowed demagogues to have their way with those witnesses, never mind the swath that those persecutions had cut through labor, the movie industry, and many other institutions of American life. Indeed, Warren specifically acknowledged the turf upon which he and the Court now warily trod. “We approach the questions presented,” Warren wrote for his majority in Watkins, “with conscious awareness of the far-reaching ramifications that can follow from a decision of this nature.”32 That said, Warren did everything he could to limit those ramifications. Both cases cried out for a finding that the men cited for contempt had merely exercised their protected First Amendment rights of association and speech. In Sweezy’s case, his only alleged association was with the Progressive Party and his only other contested act was delivering a lecture, surely a protected act of free speech. Likewise, Watkins had admitted his Communist affiliations, shallow though they were; all that remained was whether Congress could bludgeon him into giving up names of old associates. But Frankfurter and Harlan lobbied Warren to avoid a sweeping constitutional conclusion based on the First Amendment. Frankfurter in particular leaned hard on the issue. He heavily edited Warren’s draft opinio
n, and once he had succeeded in scrubbing its references to free association, dashed off a handwritten note of self-congratulation to Harlan. “I have,” he wrote, “deleted all references to the First Amendment.”33
Under pressure from his right, Warren instead wrote a narrowly drawn opinion, concluding that Watkins had not known enough about the congressional inquiry to assess its proper scope and thus to determine whether its questions to him lay within or outside that scope. Moreover, Warren further attempted to shield the Court by assembling a strong majority behind the opinion. Only Clark dissented, complaining of what he called, with some justification, the Court’s “mischievous curbing of the informing function of the Congress.”34
But neither Warren’s efforts to contain the opinion’s reach nor his work to communicate the breadth of the Court’s support for it could obscure the Court’s revulsion at witch hunts. “No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress,” Warren wrote. “Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”35 Whereas Warren couched much of the opinion in restrained language, those sentences spoke from his heart and personal experience. As governor, he knew legislatures, and as a nominee, he had been pilloried and belittled by William Langer in 1954, had been called a drunk, and had his loyalty questioned—all by an “investigator” interested in “personal aggrandizement” whose inquiry, at least as he conducted it, served no legitimate task of Congress. “Now that you have been shot at, you know what it’s like,” Burton Crane had written to Warren at the end of Warren’s travesty of a confirmation hearing. Crane had urged Warren to add his voice “in protest against the marauding bands ambushing our freedoms.”36 It had taken four years, but on June 17, 1957, Warren did just what Crane had asked him to do. “There is,” Warren concluded, “no congressional power to expose for the sake of exposure.”37