by Jim Newton
Warren was left in an embarrassing limbo. He had promised to retire at the pleasure of the president, but now it was no longer the president’s pleasure that he leave. And yet he could, by his own terms, hardly stay: Warren had blamed his advancing age for his decision, and he was only getting older. On October 7, Warren gaveled a new term of the Supreme Court to order, and Fortas retook his place on the bench. Neither took his seat comfortably. Three days later, Johnson announced that ordinarily he would have felt bound to submit another name to replace Warren’s. “These are not ordinary times,” he wrote. “Under the circumstances, the foundations of government would be better served by the present Chief Justice remaining until emotionalism subsides, reason and fairness prevail.”20
So Warren pushed on. The early days of the Court’s term were overshadowed by the national political campaigns, and Nixon made no secret of his antipathy toward the Court headed by a man he frankly disliked. Speaking at that year’s Republican Convention, Nixon identified the Court with crime and disorder. “ [L] et us . . . recognize,” Nixon said, “that some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country, and we must act to restore that balance.”21 There was no question about whose Court Nixon was speaking of. On Election Night, the night that Warren had hoped to crack his thirty-year-old scotch and toast the reelection of Lyndon Johnson, he instead joined his daughter and son-in-law Virginia and John Daly as the returns rolled in across the country and Richard Nixon squeaked out a narrow victory over Hubert Humphrey.22 Humphrey closed the gap so fast at the end that many observers believed he would have won had the campaign gone on another week. Still, close victories are victories nevertheless. The consensus period that had protected Warren and his Court and allowed its achievements to be the nation’s was over.
The election of Richard Nixon culminated Warren’s long dread, and it permanently ended Warren’s friendly access to the White House. At the same time, it shifted Warren’s place in the gathering political and cultural currents of the nation, particularly with respect to Vietnam. As long as Johnson was president, Warren supported his efforts to manage the Vietnam War. Now, however, Vietnam was not Johnson’s war but Nixon’s.
Warren soon began to see protesters of the war as more sympathetic. Just one week after Nixon’s election, the Court heard arguments in Tinker v. Des Moines School District. The Tinker children and a few other students wore black armbands to school in late 1965 in order to express their sympathy for those who had died in Vietnam and to support Robert Kennedy’s proposed bombing halt for that Christmas. The school authorities in Des Moines had been warned that such a demonstration might take place and had put in place rules to suspend the students if they did so. The students wore them anyway, and were suspended.
Those actions occurred in 1965, fifteen months before David O’Brien burned his draft card. Warren and all but Douglas had signaled their impatience with dissent when they upheld O’Brien’s conviction and sentence. Arguably, the authorities had more discretion to control the Tinkers’ protest than that of O’Brien: The Tinkers, like O’Brien, had engaged in symbolic speech—the Tinkers in violation of school orders, O’Brien in defiance of federal law. The Tinkers’ actions occurred in a public school, where all sides agreed that officials had the right to preserve decorum in order to allow children to learn. Now, however, the same justices who took such offense at O’Brien’s draft-card protest showed a new tolerance for the protest by the Des Moines children. Allan Herrick, the lawyer for the Des Moines school district, argued before the Court that wearing the armbands was an “explosive” act because it occurred before an “inflamed” community, its anger stirred by an exploitative press. Warren arched an eyebrow. The recently decided presidential election had included passionate debate about Vietnam, Warren noted. Could the students have been suspended for wearing Humphrey buttons? Or Nixon buttons? Perhaps, the lawyer responded, if they arrived for school with a “whole row of buttons . . . it could prove disruptive.”23 That was too much for Warren, who, joined by Marshall, pressed Herrick for evidence that the school board could reasonably have anticipated disruption from the students wearing armbands. Herrick flailed for an answer, eventually coming close to admitting that the school board had no evidence that the armbands would disrupt the city’s schools.24
Fortas, like Warren a supporter of Johnson’s Vietnam War and a critic of its critics, wrote for the Court. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of expression at the schoolhouse gate,” the Court concluded. Harking back to one of Justice Jackson’s great rulings, the Court reminded that the Jehovah’s Witnesses were permitted to refuse to salute the flag, an expression of their deeply held beliefs in defiance of school rules. The actions of the Tinkers and the others in Des Moines were plainly intended to express their protected views—opposition to the war. While school authorities had the right to maintain order, the wearing of armbands had done nothing to impair learning and thus the state had no right to impinge the Tinkers’ speech. Indeed, it had allowed other emblems to be displayed—some students had even donned iron crosses, symbols of Nazi Germany, without repercussion. Yes, there was risk of disruption, “but our Constitution says we must take this risk . . . and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”25 Why that same reasoning did not apply to O’Brien and his draft card was not explained.
Harlan dissented gently.26 Black showed no such restraint. He sarcastically allowed that the armbands might constitute “ ‘symbolic speech,’ which is akin to ‘pure speech,’” and then moved to other, more emotional grounds to state his case.
“If the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.” Black once welcomed a “revolutionary era”—indeed, more than one. He had heralded the New Deal, led the cause of racial equality, pioneered the law of equal protection. He had, in fact, joined Jackson in defending the rights of schoolchildren to refuse to salute the American flag during World War II. No more. Revolution was satisfying to the young Hugo Black, alarming to the aging one. “Change has been said to be truly the law of life,” Black said near his conclusion, “but sometimes the old and the tried and true are worth holding. . . . Uncontrolled and uncontrollable liberty is an enemy to domestic peace.”27 In his copy of Black’s dissent, Fortas came to the passage about the threat of “uncontrollable liberty,” and wrote in the margins, “Hugo Black!!”28 Black, Warren confided sadly to his clerks, had simply stayed too long.29
Black and Warren would remain civil for the rest of their lives, but Tinker demonstrated how far apart those two friends had drifted. Black found his succor in order and old values. Warren lived by those values. He was still stern, still a patriot. But the same voices of dissent that alarmed him just months earlier now seemed less shrill. They seemed, in fact, persuasive. When, in April 1969, the son of Warren’s driver, Jean Clemencia, was killed in action, Warren asked his clerks and fellow justices to accompany him to the funeral. Warren himself wrote to Clemencia and his wife, expressing his grief and honor to attend the service for the fallen young man.30 The death affected Warren deeply, as personal matters so often did. He had supported the Vietnam War—or at least Johnson’s efforts to win that war—as late as 1968; by the fall of 1969, he would publicly proclaim his opposition to its continuance.31
As Warren moved toward acceptance of protest, his grandson, Jeffrey Warren, dared to give him a copy of Eldridge Cleaver’s Soul on Ice, not sure whether his grandfather would bother to read it. Others in the family were shocked at Jeffrey�
��s presumption, but Warren read the book and absorbed it in generational terms. “I understand the man’s anger,” he told his grandson. “What a shame that our generation and past generations have created a world that promotes such rage.” Still, Warren added, in case his grandson were to assume that the Chief Justice of the United States was ready to endorse the fuming rage of an ex-convict and leader of the Black Panthers, “How can you respect a man who uses such bad language?”32
Warren’s appreciation of radical literature and leftist politics had its foundations in his own young life, but in the decades since, his rise and influence had all been through the most establishment causes and organizations. The Masons were his friends, not the Students for a Democratic Society. Nixon’s rise to power did not suddenly drive Warren to radicalism, but it alienated him from much of the Washington establishment, the same establishment that had embraced and exalted him for nearly a decade. He knew the time had come to leave. For him, then, the challenge was how to extricate himself from the predicament of his own bungled retirement. So as 1968, the terrible year of 1968, drew to a close, Warren sought out his old rival to cut a deal.
Fearing that a personal meeting would draw too much attention to itself or, perhaps, unwilling to bring himself personally to Nixon’s door, Warren asked his son-in-law John Daly to deliver the message that he was willing to step down but hoped to serve out the term. Daly did as asked, telling Nixon associate William Rogers of Warren’s wishes over a round of golf.33 Rogers, who was to become Nixon’s secretary of state, passed along the message to Nixon in New York, where the White House-in-waiting was assembled at the Pierre Hotel. On December 4, the president-elect announced a version of the communication tailored to make Nixon appear to be the initiator of the talks. In that version, Nixon “called Mr. Warren in Washington . . . and told him that he wanted to avoid any disruption of the Court’s work.” Warren played along for the sake of protocol, releasing his own statement after the president-elect had issued his. “The statement released by the President-elect is in accordance with our conversation of yesterday, and I will be happy, at his request, to serve until the end of the present Term of Court,” Warren said.34 This time, there were no conditions attached. Warren then administered to Nixon the oath of office on January 20, 1969. Nixon was the fourth president to take the oath from Warren; it was surely Warren’s least pleasant trip to that podium.
The bitter pill was swallowed. That done, Warren then returned to the Court to end his historic tenure. The term’s signature case, which Warren took for himself, brought the Warren Court to its conclusion in symmetrical fashion. Adam Clayton Powell was a United States congressman, elected to represent the Eighteenth District in New York and one of few blacks to hold such a position in the late 1960s. After his reelection in 1966, when Powell arrived with his colleagues to take the oath of office and begin that session of Congress, they were asked to step forward and he was directed to step aside. The other members took the oath and assumed their seats, where they voted to appoint a special committee to investigate allegations that Powell and members of his staff had improperly billed the Congress for travel and that Powell’s wife had drawn a salary from the Committee on Education and Labor, which Powell had chaired in previous Congresses. Once formed, the Select Committee invited Powell to appear, and he did, though he provided only basic biographical information, refusing to answer other questions. The committee concluded that Powell had stolen House money and filed false reports, and after other motions and debates, Congress adopted a resolution declaring his seat vacant. Powell then sued for his seat and for his back pay.35
Powell was a cad and a bit of a con man. Few doubted that the House could have voted to censure him. It could perhaps even have voted to expel him, though that would have been made more difficult by House traditions that suggested it could not expel a member for conduct that occurred in a previous session (each Congress, in theory, is an entirely new body). In any case, the House chose not to censure or expel but rather to exclude Powell from the seat that his constituents elected him to occupy. That raised the constitutional claim because the Constitution establishes the qualifications that members of the House must meet in order to serve. Members must be at least twenty-five years old, seven years a citizen of the United States, and an inhabitant of the state from which they are chosen.36 Powell met all those criteria.
As with Baker v. Carr seven years earlier, the principal issue for Warren’s Court to consider was not the substance of the claim but rather the reach of the Court to resolve it. In Baker v. Carr, Frankfurter had issued his final, ringing warning against the Court entering the “thicket” of politics—in that case, the politics of drawing legislative lines. Warren had prevailed. To refuse to adjudicate matters where the Constitution required fairness was to Warren then—and always—something akin to shirking his own responsibility. With Powell’s lawsuit, the matter returned to the Court in new form—this time, the question of whether the Court could interfere with the organization of a coequal branch of government in an instance where the branch was accused of acting unconstitutionally in making and carrying out its internal rules. Not coincidentally, the victims, both in Baker and in Powell, were black. Powell’s lawyer, Arthur Kinoy, knew well to emphasize that point:
The reaffirmation that this is a government of laws and not men, that representative government means that ultimate power remains with the people is particularly necessary when the crisis arises in a context in which black citizens are denied the right to elect their own black representative who had risen to great heights of legislative leadership. It is difficult indeed to demand law and order of American citizens if the legislative branch itself denies the first assumptions of an ordered society, the right of people to govern themselves.37
That argument spoke so clearly to Warren’s legacy at the Court that he could hardly have refused to accept it. The lawyer for the House of Representatives countered that under the Constitution, only the House could set its rules, that its right to govern itself was not subject to review by the courts. What, then, Warren asked, would happen if one political party someday captured a two-thirds or three-fourths majority in the Congress and, one by one, removed members of the other party from the House, finding that their views posed a threat to the nation? That would be wrong, the lawyer conceded, but reviewable only if the actions constituted “utter perversions.”38 When the lawyer argued that the House could go so far as to exclude any member by reason of his race, Warren could not disguise his indignation: “What,” he asked, “could be more perverse than that?” The audience laughed. After a break, the lawyer reconsidered and admitted that perhaps such an exclusion would be so perverse that it would justify the Court’s intervention. Warren’s point was made.39
Knowing that the case turned on an issue no less grave than the relationship between the Court and the Congress, Warren assigned the opinion to himself. For its eighty-six footnotes alone, Powell v. McCormack was a departure from Warren’s characteristic terseness. But in its conclusions, it fulfilled the important mandates of Warren’s tenure. It defended democratic principles. It upheld the Court’s power to act as protector of the Constitution. And it found in favor of black voters and their right to pick their representatives, however flawed those representatives might be. “It is the responsibility of this Court to act as the ultimate interpreter of the Constitution,” Warren wrote. That was a duty Warren had claimed in Baker v. Carr. He demanded that others yield to it in Cooper v. Aaron. He embraced it in a long line of criminal procedure cases—from Mapp v. Ohio to Miranda. He would not stop now, not at the end. In this case, the Constitution was clear and the Court’s duty was as well. Before circulating the opinion to the brethren, Warren took it to Brennan to read. Brennan approved. Warren was elated. “OK, boys,” he told his clerks. “We got it.”40 When the Court handed down its ruling, Congress bent to its order, just as so many others had been forced to during Warren’s service.
While Warren was at work on th
e Powell opinion, the Nixon White House settled into place, and soon was at odds with the Court. On March 12, Jack Landau, whom Brennan had known for some time because Landau covered the Supreme Court for the Newhouse newspaper chain, called Brennan’s chambers and told his secretary that he had an urgent matter to discuss with the justice. Brennan invited him over and only then realized that Landau was no longer a reporter but was working as public information director at the Justice Department. Once he arrived, Landau nervously explained to Brennan that Attorney General John Mitchell had sent him to express concern over a pair of wiretapping cases decided a few days earlier by the Court. Those cases required the government to turn over to defendants evidence seized through illegal wiretaps in order to make clear that the defendant was not being tried with illegally obtained evidence.41