by Jim Newton
The real change came later that year, when Frankfurter, badly weakened by a stroke he suffered just weeks after concluding his work on the Baker case, informed the president that he could not return to his work. He resigned with trademark formality, the old dignity shining through the more recent defeats. “To retain my seat on the basis of a diminished work schedule would not comport with my own philosophy or with the demands of the business of the Court,” he wrote. “I am thus left with no choice but to regard my period of active service on the Court as having run its course. I need hardly tell you, Mr. President, of the reluctance with which I leave the institution whose concerns have been the absorbing interest of my life.”50
And with that one-page note, the defining twentieth-century feud within the United States Supreme Court was over. For more than a decade, Black and Douglas had squabbled and debated with their resolute rival. After his settling in, Warren had joined them in their activism, and then Brennan, Frankfurter’s onetime student, had come aboard and defied his former teacher. As the ranks of that wing of the Court thus grew, the other side dwindled away, its demise postponed mainly by the force of Frankfurter’s personality and intellect. Jackson long ago had gone, as had Reed and Minton and the other holdovers of the New Deal period when restraint was a liberal judicial value. Clark retained a residue of it, and Harlan embodied a different, more patrician conservatism, but neither was a dominating figure in the mold of Frankfurter. Stewart had come to the Court during those years, but he now moved from camp to camp, never destined to be a standard-bearer in that long battle. When Frankfurter gave up the work in 1962, his speech slurred, his hands shaky, and his body weakened, “the Axis” was the only remaining solid bloc of justices left standing at the Court. And yet even then, Warren, Black, Douglas, and Brennan were one vote short of a consistent majority. Kennedy’s next appointment would determine whether that group would emerge as a majority or whether it would, as in Baker, find itself in regular search of a fifth and deciding vote.
Kennedy moved quickly, advised again by Douglas and Warren and guided by certain political imperatives. He wanted a Jew, as Frankfurter’s departure left the Court without Jewish representation. He wanted a loyal Democrat and an intellect. He found all those in the person of Arthur Goldberg, the blazingly intelligent secretary of labor. Goldberg charmed the Judiciary Committee so thoroughly at his confirmation hearings—he had been well briefed by, among others, former Whittaker and Warren clerk Jim Adler—that he sailed through the Senate with just a single no vote, that of South Carolina Senator Strom Thurmond, no friend of Kennedy liberals, nor, for that matter, of Jews.51
In the summer and fall of 1962, Kennedy did more than give the Warren Court two justices. He also gave it essential political support through the crucible of two potentially divisive cases. Senator Richard Russell of Georgia, whose distaste for Warren already was intense, led the negative response just one day after Baker was announced. It was, he said with an obvious nod to Brown, “another major assault on our Constitutional system.”52 But Russell’s complaints this time would have a different effect from the one they had after Brown. When Southern politicians had attacked Brown, Eisenhower let them. This time, they found a far less tolerant president. Even as Russell was challenging the Court, Attorney General Robert Kennedy praised its work as a “landmark in the development of representative government.”53 And at his press conference two days later—the same press conference at which he would announce the retirement of Whittaker—President Kennedy himself, in response to a question, declared that the principle of votes counting equally was “basic to the successful operation of a democracy.” While the president acknowledged that political change is most tidily handled through the political process, he rejected the Frankfurter argument that the Court must avoid such entanglements. “If no relief is forthcoming” through elections and lobbying, Kennedy said, “the judicial branch must meet a responsibility.”54 No president had ever spoken so supportively of a controversial Warren Court decision, and Kennedy’s praise was both heartening and timely, as the Court had one more blockbuster to deliver before calling it a session.
Just two months after Baker, on the final day of the term, the Supreme Court invalidated the short prayer that the New York State Board of Regents had authorized and encouraged its teachers to recite each morning to the children in their classrooms. Drafted specifically to be nondenominational and kept deliberately short, the prayer read, in its entirety: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”55
Simple and voluntary though it was, that prayer meant that young children were forced to choose between reciting their devotion to God or risking ostracism from friends and teachers. Such a choice inherently involved the government in the endorsement of God, a function that the Court now ruled was a violation of America’s history and law. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain,” Black wrote for the six-member majority, including Warren. Black’s opinion stressed that it was not hostile to religion but only to state sponsorship of religion. In that, it was a hallmark of his long-argued constitutional libertarianism. “It is neither sacrilegious nor antireligious,” Black wrote, “to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.”56
Coming so soon after the shock of Baker, the Engel case was a bell clap. Anthony Lewis, in his perceptive analysis of the decision in the New York Times, noted that it not only would reach public school practices across the country but also “might indicate a stricter attitude in the Supreme Court toward breaches of what it has called the ‘wall of separation’ between church and state.”57 Just a few years earlier, the combination of two such explosive topics—in that case, segregation and Communism—had given Warren’s enemies the chance to band together against him. As anger from Engel swept through Catholic churches and divided Protestant faiths—only Jewish leaders voiced general agreement—the Court risked a new coalition of opponents, this time of the religious right and rural politicians. Warren anticipated such a reaction, and he got it. Former Presidents Truman, Eisenhower, and Hoover all denounced the decision, as did members of Congress, from liberal Republican Prescott Bush in Connecticut to conservative Democrat Herman Talmadge in Georgia. Congress boiled for a time with constitutional amendments to overrule the Court in Engel. This time, however, the criticism was limited to railing. Whereas Eisenhower had allowed those opponents of the Court to dominate the conversation, Kennedy cut them off. Addressing the decision two days after it was handed down, Kennedy unequivocally stood behind it. Americans, he said, should go to church and pray there and at home, not in school. Reporting on Kennedy’s comments, the New York Times ran its story the next day beneath the headline “President Urges Court Be Backed on Prayer Issue.”58
The summer of 1962 was one of transition for the Court, but it also, for Warren, was a return home to familiar contests. In California, Richard Nixon rose from the depths of his 1960 defeat by John Kennedy to reclaim his place in politics, this time as the governor of California, a step in what he was charting as his march back toward national political leadership. Nixon was, of course, a national figure in 1962 and had carried California over Kennedy two years earlier. He was the nominal leader of the Republican Party and was assessing his options for a return to power. In that calculation, the California governorship offered considerable advantages, giving him a platform to demonstrate executive ability and returning him to his base, where he had never lost an election. All that appeared to stand in Nixon’s way was the incumbent governor, Pat Brown, whose record was viewed by Republicans as sufficiently uninspired to provid
e an opportunity for Nixon.
Warren’s position on the Court precluded his playing any overt role in the 1962 campaign. But no one close to him could doubt where his sympathies lay. Their different parties notwithstanding, Pat Brown was an heir to Warren’s legacy of California centrism. Initially a Republican who switched to the Democratic Party during the FDR years, Brown was a builder, a moderate, a governor who openly modeled his administration on Warren’s example. He credited himself, immodestly but probably truthfully, with helping to temper some of Warren’s early conservative instincts. “It may be a conceit on my part, but I do think I influenced him to some extent,” Brown confided to Carey McWilliams after Warren’s death.59 Warren and Brown also had grown close personally, overcoming early turf disputes—Warren’s Crime Commission claimed some of the field in California law enforcement that Brown understandably saw as his domain—and settling into what Brown described as “leisurely talks” during the Warren gubernatorial years when Brown was attorney general.60 Warren liked Brown and appreciated him—most men did, as Brown was an avuncular and warm personality. So in 1962, Warren set out to do all he could, within the bounds of his office, to secure Brown’s election in California.
First was the matter of the Warren family. So long a mainstay of Warren’s political image in California, the sunny boys and girls, now grown, remained a public window into his beliefs, and they, unlike him, could support anyone they chose. So it was with considerable fanfare that Earl Warren, Jr., announced that he had switched his registration from Republican to Democrat and was supporting the candidacy of Pat Brown. Brown, Earl Jr. recalled years later, “was carrying on my father’s traditions. . . . And then, of course, [there was] Nixon. He was no family friend.”61
Earl Jr. did more than just endorse. He campaigned aggressively for the governor, appearing across California and taking the Brown campaign into Republican areas where Brown himself would have been coolly received.62 And everywhere Earl Warren, Jr., appeared, he was assumed to carry his father’s blessing. Reinforcing that, Warren himself pushed the boundaries of judicial propriety by going on a widely noticed hunting trip with Brown in late 1961 and, later, by praising California’s development under Brown’s leadership. In Oakland for the dedication of a new federal courthouse, Warren complimented California’s progress. “I believe that the standard of law enforcement in this State is greater than any other State in the union.”63 Brown himself was scheduled to be at the dedication, and one story noted that he was there. He was not pictured in the photograph, however, so he may have missed that opportunity to make a joint appearance with the chief justice and California icon.64 Nevertheless, Warren’s message was received—and only was reinforced by a late-campaign resurgence of the debate over Nixon’s role in the 1952 Republican Convention. Warren encouraged the assumption that he was supporting Brown by confirming it to reporters off the record. Privately, Warren was even more outspoken. “Nixon,” he told one reporter after securing a promise that the two were off the record, “has to be stopped.”65
Nixon formally filed his papers the same day the Warren Court announced its decision in Baker v. Carr. He entered the race a heavy favorite. But he squandered his lead through the spring and a divisive Republican primary, during which, ironically, he paid a political price for denouncing the Birch Society. By Election Day, Nixon knew he had lost, and he took it sourly. With his career in tatters, Nixon blamed the press corps:
I leave you gentlemen now. And you will now write it. You will interpret it. That’s your right. But as I leave you, I want you to know, just think how much you’re going to be missing. You don’t have Nixon to kick around anymore. Because, gentlemen, this is my last press conference, and it will be one in which I have welcomed the opportunity to test wits with you. I have always respected you. I have sometimes disagreed with you. But unlike some people, I have never cancelled a subscription to a paper, and also, I never will. I believe in reading what my opponents say. And I hope that what I have said today will at least make television, radio, the press first recognize the great responsibility they have to report all the news and second, recognize that they have a right and a responsibility if they are against a candidate to give him the shaft but also recognize if they give him the shaft, put one lonely reporter on the campaign who will report what the candidate says now and then. Thank you, gentlemen and good day.66
That crude, self-pitying display captured what so many, especially Earl Warren, had learned to loathe about Richard Nixon. Warren thoroughly enjoyed it. Later that same week, Warren and President Kennedy were aboard Air Force One, traveling together to the funeral of Eleanor Roosevelt. Near the front of the aircraft, Warren saw Kennedy and beckoned him over. When the president sat down, Warren pulled from his pocket a handful of clips detailing Nixon’s self-immolation. Mary McGrory, a Washington Star correspondent on board that day, watched as the president of the United States and the nation’s chief justice sat together, reading clips to each other and “laughing like schoolboys.”67
ONE OF THE DUTIES of the chief justice’s clerks is to sift through the thousands of petitions filed each year by prisoners seeking review of their cases. Warren’s clerks read those petitions and summarized them in short memos to the conference. The memos were typed with carbon copies, and the copies thus were known as “flimsies.” The clerks recommended dismissal of the vast majority of those petitions, but there were those that demanded attention. One arrived at the Court in 1962—the handwritten petition of Clarence Earl Gideon, a Florida man convicted of breaking and entering a pool hall in Panama City. Too poor to afford a lawyer, Gideon had asked the state to give him one, but it had refused. Florida only supplied indigent defendants with lawyers when the defendant faced the death penalty or when “special circumstances” required it (an illiterate defendant, for instance). Acting as his own lawyer, Gideon was convicted and sentenced to five years in prison for stealing wine, cigarettes, and less than $100 in cash.68 The justices took the case, recognizing that it offered them an opportunity to consider whether the right to counsel, already provided in federal trials, extended to the states as well.
Since Gideon had no lawyer to make that argument for him, Warren got him one. Abe Fortas—graduate of Yale, protégé of William Douglas, friend of Lyndon Johnson, founder of a distinguished Washington law firm—was considered in 1962 nothing less than the best lawyer in America. He accepted Gideon’s case, and Fortas’s argument to the Court on January 15, 1963, ranks with the best ever presented in its chamber, standing with the graceful logic of Robert Jackson, the orations of John Davis, and the earnest, earthy conviction of Thurgood Marshall. Fortas’s deep, calm voice curled around carefully chosen words. Throughout, he addressed the question posed to him by the Court when Warren asked him to take the case: Should the Court overrule its own precedent, established in 1942 with a case known as Betts v. Brady, and force states to appoint lawyers to indigent defendants in all cases, not just those where special circumstances required it? Fortas might have argued that Gideon deserved to go free because the special circumstances of his case commanded that he be given a lawyer, but Fortas had found no such circumstances, and so he forced the Constitutional question:
If you will look at this transcript of the record, perhaps you will share my feeling, which is a feeling of despondency. This record is not, does not indicate that Clarence Earl Gideon is a man of inferior natural talents. This record does not indicate the Clarence Earl Gideon is a moron or a person of low intelligence. This record does not indicate that the judge of the trial court in the state of Florida or the prosecuting attorney in the state of Florida was derelict in his duty. On the contrary, it indicates that they tried to help Clarence Earl Gideon. But to me, if the Court please, this record indicates the basic difficulty with Betts against Brady. And the basic difficulty with Betts against Brady is that no man, certainly no layman, can conduct a trial in his own defense, so that the trial is a fair trial.69
The absence of a defense lawyer
made any trial an unfair trial, Fortas argued; the Sixth Amendment required a fair trial in federal courts; the Fourteenth Amendment required that states do the same. Against that truism stood the proposition that federalism required the Court to accede to the rights of states to structure their criminal justice systems, to hold its tongue in the face of what were admittedly unfair trials. There was “no possible escape hatch,” he insisted. For the Court, then, the only options were to allow unfair trials or to curb federalism. That was the direct conflict that Warren had hoped to create when he tapped Fortas to argue Gideon’s case.
Close Court watchers suspected that Betts’s days were numbered even before Fortas came to take it head-on. A year earlier, Warren had signaled his willingness to overrule Betts v. Brady, joining with Douglas and Black in finding: “Twenty years’ experience in the state and federal courts with the Betts v. Brady rule has demonstrated its basic failure as a constitutional guide. Indeed, it has served not to guide but to confuse the courts as to when a person prosecuted by a State for crime is entitled to a lawyer.”70 The majority in that case, Carnley v. Cochran, overturned the conviction of a man who had molested his thirteen-year-old daughter, but the justices, fearful of setting a major precedent on the back of such a depraved defendant, instead concluded that the special circumstances of that trial—the defendant was illiterate—required that he be given a lawyer under that provision of Betts. That allowed the justices to dispose of Carnley without the reaction that setting a major constitutional principle in order to free a child rapist would surely have provoked.71