by Jim Newton
Black demolished that reasoning. He already had vented on Douglas over the right of privacy; he certainly was not going to accept its extension into an area he saw as sacrosanct, the right of free speech. With the end of the term approaching, Fortas was at sea. In a memo to the brethren, he admitted that he had been forced to rewrite the entire draft, and expressed regret at the burden he was placing on the rest of them.94 The case was put over and reargued, but Black continued to cast derision on his colleague’s “balancing test.” That fall, as the conference met to discuss Nixon’s reargument, the justices went around the table and saw just how much damage Fortas had done to his own position. Where the vote last time had been 6-3 to affirm the damages for the Hills, this time it was 7-2 against. Only Warren stood by Fortas (Clark eventually would join them), stern believers in the idea that privacy violated by the press was no less hurtful than privacy violated by the government.
The outcome was deep in irony. Lyndon Johnson’s close adviser and Richard Nixon’s old rival had come to Nixon’s aid and cast their votes with him. The case’s central dispute was not between Warren and Nixon, whose long-running animus made that seem likely, but rather between Black and Fortas, two men of similar up- bringings whose temperaments by then had made them adversaries. Leonard Garment reflected on it decades later, with Nixon and Warren long gone from office. He credited Warren, Fortas, and Harlan, who wrote a concurrence, with seeing “the case as one of nontechnical justice—two ordinary American parents touched by near-tragedy and trying to shield themselves and their five young children from the cheapening effects of unwanted and distorted publicity.”95 Rarely has Warren been so well described. He was, as Garment intuited, always in search of “nontechnical justice,” always touched by the real lives of those whose conflicts brought them to his Court, the real struggles of parents, the real consequences of law; his strong intuition for people, honed in his years of politics, allowed Warren to appreciate the underlying human consequences of the Hills’ struggle against Life magazine, and it even permitted him to overcome his bias against Nixon. The Court handed down its decision in Time, Inc. v. Hill on January 9, 1967. Four and a half years later, Mrs. Hill committed suicide.96
THE WARREN FAMILY had always been healthy. Honey Bear’s polio was staggering, but her recovery was complete. And though the Warren children had had their scrapes—Jim broke an arm playing football, there were minor car crashes now and again—the children and grandchildren had been largely charmed. It was thus especially crushing to discover in the early 1960s that Dorothy suffered from multiple sclerosis. It was only part of a sad turn in Dorothy’s life, as her marriage to a professor at UCLA also was failing. Married in 1956, the two divorced in the 1960s, and Dorothy suddenly felt far from home. She came to live with her parents and recover from her dual disappointments. In those years, Dorothy often substituted for her mother at occasions when Warren was expected to be accompanied by a woman, and Dorothy cut her usual swath through Washington society despite her illness. After recovering her footing from her divorce, she found a place not far from her parents and stayed in Washington through the mid-1960s, until she met architect Harry Knight, whom she would marry on November 27, 1968. The two then moved to Maryland.
In the meantime, Earl Warren lost the last living member of his childhood family. It was the summer of 1966, and his older sister Ethel was in the final stages of a hard life. Her husband had dropped dead on the golf course as a young man, and her daughter had died of tuberculosis. When Ethel Plank died on June 17, 1966, only her son, Bud, survived her. Her brother, so many years removed from the Bakersfield where they had grown up, had been a good sibling to her. In her waning years, Ethel battled cancer and had trouble making ends meet, as her husband had died so young. Earl supplemented her income by sending her $500 a month. He marked her passing with quiet solemnity. “She went peacefully and without prolonged suffering,” he told Douglas when the latter expressed his sympathies. “For that at least we are grateful.”97
TIME, INC. represented a failure by Warren, at least in his terms. He could not persuade the Court to follow him then or in many of his other attempts to draw a free-expression standard subject to his views of restraint. Elsewhere, he was more attuned to his colleagues and a more confident leader of the Court. Nowhere was that more true than in the area of race, and the 1966 term gave him a chance to right one of the Court’s wrongs of his tenure. A decade had passed since the Court turned its back on the Naims when the state of Virginia annulled their interracial marriage and the Court had been afraid to take the issue up in the midst of school desegregation. The issue returned in 1967 in the poetically captioned case of Loving v. Virginia. Richard Loving, a white man, married Mildred Jeter, a black woman, in the District of Columbia in 1958. When they returned home to Virginia, they were indicted for miscegenation and sentenced to a year in prison; the judge agreed to suspend their sentence if they would leave the state for twenty-five years. They did, and settled again in Washington, D.C., but in 1963 they sued to overturn their convictions.98
In 1956, the Court had been unwilling to invalidate Virginia’s ban on interracial marriage. In 1967, it was ready. Just two months after the case was argued, Warren delivered a unanimous Court for the Lovings and struck similar laws in sixteen states. “Under our Constitution,” Warren wrote, “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”99 Fortas, who occasionally displayed a light touch, treated the matter whimsically, penning a poem:
For a Negro to marry a White
Results in serious Blight.
So argues the state of Virginia
But science is all agin’ ya.100
WARREN WOULD never admire Johnson the way he had Kennedy—Johnson was too crude for Warren’s tastes.101 But Johnson flattered Warren in the way he did so many older men, and Warren was not immune—either to the presidency or the president. In early 1964, with the Kennedy assassination still fresh and the nation desperate to rally behind Johnson, Warren wrote to LBJ to praise him on his first State of the Union address, which Warren called “magnificent in every respect.” “Your great challenge comes under the most tragic circumstances that one could imagine,” Warren wrote. “I thank God you were prepared for it.”102 Johnson promptly replied, and his note set the tone for their friendship. “I would so like to be worthy of your guidance and your friendship which I have had through the years,” the new president wrote. “I will try very hard.”103
For Johnson, trying hard often meant the brazen use of flattery. When Warren turned seventy-five in March 1966, Johnson used the occasion to lavish gifts and attention on the chief justice. First was a surprise visit to the Warren apartment on March 19, Warren’s birthday. The Warrens were preparing to leave for dinner when the White House operator called to say that Johnson was on his way over. Johnson was weighted down with presents—flowers for Nina had arrived before him, and he came bearing the Oxford History of the American People, a bottle of thirty-year-old scotch, and, of course, pictures of himself and his family. One photo was inscribed to Warren, “the greatest Chief Justice of them all.”104 Seeing that the family was preparing to leave for dinner, Johnson teasingly complained about having not been invited, then hosted a celebration of his own for the Warren family at the White House four days later.105 Warren was so taken aback by the attention that, in his thank-you note to the president, he dropped his normal care to avoid explicitly political remarks in writing. Warren thanked Johnson for the gifts and said he was saving the scotch for “election night of 1968, when I will drink it to your health and continued success.”106
Contact between a president and a justice can be complicated—as Johnson was soon to discover, tragically, in his relationship with Abe Fortas. With Johnson, Warren was friendly but guarded, and sometimes the two communicated through intermediaries, either Fortas or their mutual friend Drew Pearson. In early 1966, Pearson returned from two weeks in Barbados with Warren a
nd reported to the president on their conversations. Knowing of Johnson’s manic insistence on loyalty, Pearson began by assuring the president that he had a friend in Warren: “You probably know that he is a booster of yours, but I’m sure you do not know how sincere and vigorous he is in supporting you regarding Vietnam and almost everything else, with the exception of your enforcement of the antitrust laws.”107 Pearson then went on to suggest three ways that Johnson might win Warren’s favor: White House dinners for the Court should be reinitiated, rather than lumping those gatherings with larger dinners for the federal judiciary; Warren’s place on the White House protocol, downgraded to below the speaker of the House during the Kennedy administration (and, Warren believed, at Johnson’s suggestion), should be restored; and the justices should be given their overdue pay raise, scuttled when a petulant Congress could find no other way to retaliate for the voting rights decision in Reynolds v. Sims. Johnson’s reply was typical: He denied having anything to do with downgrading Warren’s protocol status, but he pledged to seek a pay raise and to hold more dinners for the Court. Johnson wanted Warren’s friendship, and if it could be bought at so low a price, he certainly would pay it.
That summer brought still another chance for Johnson to solicit Warren’s appreciation. The two men chatted one night early that summer, and Warren happened to mention that he was leaving soon for Heidelberg, where he was scheduled to deliver a commencement address. Johnson asked how he was traveling, and Warren replied that he was flying commercially. Johnson insisted that would not do, and he arranged for Warren to have the use of Air Force One. Warren at first protested but then warmed to the idea. He invited Brennan and Black to join him, as well as his clerks. The entire entourage made the trip.108
By the mid-1960s, Warren had to work harder to stay healthy. He recovered from his depletion during the Warren Commission months, but remained more fragile than usual. Now in his seventies, he fought with his weight, and his regular checkups at Walter Reed, where he received free medical care, became more frequent and exhaustive. There were also occasional scares. During his annual Christmas trip to San Francisco at the end of 1964, Warren experienced chest pains. He consulted with an Army doctor, and upon returning home in January, he underwent further tests at Walter Reed Army hospital. Walter Reed may have been free, but it also reported to a commander in chief, and it was not long before Johnson knew of Warren’s troubled heart.109 The pains passed, but Warren redoubled his health regimen, trying to swim as often as possible. That was easy during the warm parts of the Washington year, but harder in the winter, when cold closed outdoor pools and indoor ones used more chlorine than Warren was comfortable with. He griped about the problem to Pearson, who again passed along the information to Johnson.
“Our kind and mutual friend,” Johnson wrote to Warren, “has written me of your difficulties in finding a pool fit for winter dips. By coincidence, I happen to have one—warm, wet and absolutely snoop proof.” Johnson, clearly enjoying himself, added, “Bring your suit the first time and leave it on the peg. I will try to float free and join you from time to time.”110 Warren did not take up Johnson’s offer of a running pool date, but did accept one swim, in December 1967. Johnson, as promised, “floated free,” and joined the chief justice and Fortas for a dip in the White House pool.111
Johnson’s personal overtures could sometimes be awkward—Warren simply did not know what to do with some of the gifts that Johnson gave him. Once, when Johnson presented him with a bust of himself, Warren turned it over to Nina, who confessed that she later stashed it in a closet. But their professional relationship was solid and strengthened by the quality of Johnson’s appointments to the Court. In the summer of 1967, Johnson, who had given himself his first appointment by pushing out Goldberg, now secured a second vacancy by promoting Ramsey Clark to attorney general. Tom Clark, Ramsey’s father, saw that it would be inappropriate for him to remain on the Court that would review so much of his son’s work. And so, unwilling to stand in the way of his own son, Clark retired. Warren was sad to see Clark go. Despite their differences, they had always been friendly.112
But Johnson’s next move pleased Warren no end. At 11:45 A.M. on June 13, 1967, after a morning of meetings and a graduation ceremony for the Capitol pages, Johnson rejoined the guests in his office, including the nation’s solicitor general, Thurgood Marshall. Kennedy had put Marshall on the bench, and Johnson had convinced him to leave it to become the first African-American ever to serve as the government’s top lawyer. Now Johnson had another job for Marshall. “I believe it is the right thing to do, the right time to do it, the right man and the right place,” Johnson announced to the White House press corps that noon in the Rose Garden. 113 He did not mention that Marshall would become the nation’s first black member of the United States Supreme Court. He did not need to.
For years, Warren had sat across the bench from Marshall, favoring his causes during the NAACP years and usually backing him during his time as the government’s lawyer as well. Warren did not always have high regard for Marshall as solicitor general, but those reservations had not diminished his admiration for the lawyer’s work on behalf of desegregation.114 Now Marshall’s appointment offered the chance for two men who had traveled so many of the same roads to travel them together for the first time. It was, Warren told the president, “an excellent appointment. Few men come to the court with better experience.”115 The Senate was less enthusiastic. It took all summer to overcome Southern resistance to the appointment of a black associate justice, but eventually Marshall got his vote. He joined the Warren Court that fall.
Marshall trod over racial barriers with nonchalance, but there is no overstating how dramatic his arrival at the Court was. Every one of Marshall’s predecessors on the bench was a white man. When Hugo and Elizabeth Black hosted Marshall and his wife Cissy that fall for dinner along with the Warrens and Douglas, the Marshalls were the first blacks whom Elizabeth had ever entertained in her home.116 Marshall accepted his singularity with rough, easy humor—his wry delight at the periodic showings of dirty movies for the Court to consider, his happy consumption of Jack Daniel’s, his bemused earthiness exaggerated against the backdrop of the staid Court.117 The bond with the chief was immediate. “He’s just one of the greatest people who ever lived,” Marshall said of his new colleague.118 Warren and Marshall had adjoining chambers, and the Court’s senior justice made it a practice to drop in on its newest member. Marshall recognized that he was far junior to the chief and tried to dissuade Warren from dropping by. It felt too informal, even for Marshall, who proposed that Warren have his secretary call over to Marshall’s chambers to summon him to meetings. But Warren would hear none of it. “I don’t operate that way,” he said.119 Marshall quickly fell into Warren’s column, so closely associating himself with the voting of the chief justice that clerks called him “Brennan-Chief.”120
Marshall’s arrival lightened the Court and contributed to its happy relations. Its civility, however, masked troubling portents. Warren, Douglas, and Black all were aging. Douglas had a pacemaker. As the Court’s 1967 term drew toward its conclusion in the summer of 1968, Elizabeth Black feared that all three might soon leave, ending in one dash their historic collaboration.121 Outside, the nation was rumbling with rising crime and the Vietnam War, whose ramifications were rapidly overtaking the Johnson administration’s domestic agenda.
Vietnam had become Johnson’s singular preoccupation—it was the “center of our concerns,” he announced during his 1966 State of the Union address.122 Over the next year, public support for the conflict wobbled, then plummeted as America’s entanglement deepened in lives as well as treasure. A July 1967 Gallup poll found that only one third of Americans believed that the nation was making progress in fighting the war. More than half disapproved of Johnson’s handling of it, the worst rating he had yet received on the war.123 By the end of 1967, an increase of 100,000 American soldiers in Vietnam brought the overall American presence to nearly half a milli
on; nearly 20,000 had died on Vietnam’s battlefields—and 1968 would produce more American casualties than any other year of the war—lives lost in a struggle that many Americans, perhaps even most, did not understand.124
Warren was not among those who had lost faith. A patriot, he was as convinced in 1967 as he was in 1925 that Communism was cruel and dangerous. He did not, to be sure, accept that legislative hunts were the way to protect America, but he readily believed that American interests abroad were real and worth defending against ideological enemies. Moreover, Warren had confidence in Johnson: “He’s working hard on Viet Nam and has been for a long time, and he knows the answers for it,” Warren told Pearson in 1966. “He will find some way out.”125
As that year ground on and with it the war, Warren had hoped for a peace to be struck in the fall, in time to influence that year’s national elections. Such a victory, Warren told Pearson, “would be wonderful.”126 When that did not occur, when the casualties continued to mount and the stakes for the Johnson administration rose, Warren, along with many other supporters of the war, began to lose patience with those who protested against it. Twelve years earlier, Warren had expressed his concern for the rights of protest in wartime—“Periods of domestic dissension and of foreign war are especially liable to produce tendencies to disregard established rights in the name of national safety,” he warned in 1955.127 But by the fall of 1967, his tolerance for dissent against the war was exhausted. He vented his frustration on a young man named David Paul O’Brien.