Justice for All

by Jim Newton

  The ruling had triggered alarm at the Justice Department, Landau told Brennan, because officials there were concerned that it would force the government to reveal its extensive wiretapping operations directed against foreign embassies in Washington. All of this was understandably perplexing to Brennan, who told Landau he had never heard of such wiretapping and who asked what Landau expected the Court to do about it. When Brennan told Landau he would have to share the information with Warren, Landau expressed terror at the idea of confronting the chief justice. Brennan insisted, and when they entered Warren’s chambers, Landau was so nervous he could not sit down. The two relayed for Warren the scenario, and Landau awkwardly emphasized that the Department of Justice recognized its responsibility for the situation and would “do anything within reason to avoid congressional reaction against the Court.”42 That sounded suspiciously like a threat, but Warren did not bite. Instead, Warren told Landau that if Justice wanted to address the problem, it could file a motion for rehearing or otherwise petition the Court officially. Landau then retreated back to his office, leaving Warren to brood on what he called “this outrageous attempt to influence a Court action.”43 Warren contemplated a public response to upbraid the administration for its attempt to influence the Court’s approach to wiretapping cases, but worried that it would backfire and be seen as “vindictiveness and reprisal” against a president who had so prominently allied the Court with the “criminal forces” in American life. In later years, Warren wondered whether he had been right to stay quiet as the Nixon administration became increasingly infatuated with wiretaps. Only in his memoirs did Warren disclose the incident, noting edgily that it might be of public interest in light of “the Watergate episode and related cases.”44

  Nixon knew he would be replacing Warren at the end of the term, but when Mitchell saw an opportunity to turn one vacancy into two, he took it. The object this time was Fortas, whose confirmation hearings had opened the door to questions about his integrity, and whose withdrawal from the contest had not closed it.

  Reporters continued to dig, encouraged by the Nixon White House. The forces pressing on Fortas crested in May with the publication in Life magazine of a story exposing some aspects of a deal the justice had entered into with Louis Wolfson, a businessman whose activities had drawn the interest of the SEC and who ultimately would serve a prison sentence for assorted stock manipulation charges.45 Wolfson had befriended Fortas, and, unbeknownst to Warren or the other justices, had agreed to pay Fortas $20,000 a year to act as an adviser to his family foundation. That was potentially problem enough, but to make matters worse, the contract with Fortas was for life and specified that should Fortas die, the payments would continue to be made to his wife, Carol Agger.

  After agreeing to the deal, Fortas had reconsidered it and had returned the initial $20,000 check. Because he had done so in the same year he took it, Fortas owed no taxes on the money. Moreover, Wolfson later insisted that Fortas had never intervened with any government official on his behalf during his criminal trials. If true, that too would have meant that Fortas did nothing illegal. In political terms, however, the disclosure was devastating, especially coming on the heels of the hearings that highlighted questions about Fortas’s ethics and his personal greed. Life magazine published its story about Fortas’s relationship with Wolfson on May 4 (the magazine was dated May 9, but it was available five days earlier). The story did not disclose the lifetime contract, but the IRS subpoenaed that document the same day. By midnight, it was in the hands of Attorney General Mitchell, who recognized what he had and set out to use it to force Fortas from the Court.

  Mitchell’s next step was a curious one, but it proved effective. He asked to meet with Warren, and Warren, who just weeks earlier had been so offended by the White House’s attempt to reach the Court informally regarding the wiretapping case, strangely agreed. Warren may have been merely curious, or he may have seen little danger in the contact, since it involved no pending case before the Court; still, it was a puzzling lapse of judgment for a justice so wary of Nixon and so committed to the form as well as the substance of propriety. Whatever drew Warren to the meeting, he left it with the sure knowledge that his Court was about to unravel. The two met in Warren’s chambers on May 7, and Mitchell presented him with a copy of Fortas’s contract, one that bound him for life to a criminal. After Mitchell left, Warren turned to Margaret McHugh and uttered the obvious: “He can’t stay.”46

  Warren went directly to Brennan’s chambers after Mitchell left and consulted with Brennan and Stewart before meeting with Fortas that afternoon.47 Over a tense weekend, the clamor for Fortas’s resignation grew, and with Douglas out of town, Fortas oddly sought guidance from Black.48 By Monday, reporters had learned of the lifetime contract—Mitchell undoubtedly was the source. The justices met in conference that Tuesday, and Warren told them the details of the contract that Mitchell had given him. They sat, stunned. Fortas said little.49 He resigned the following day.

  SECURITY AND FREEDOM require each other and yet pull against each other. They are intertwined and inextricable, and for Warren, they stood as markers in his principled quest for a good nation. As a young man, Warren opted for safety, first in the IWW prosecutions in upholding California’s syndicalism laws, and later, more tragically, in the internment of Japanese-Americans during the early, confused days of World War II. But as he moved to end his service to his nation, Warren was given a rare luxury, the opportunity to reconsider his youth in the full light of his life.

  This time, the defendant convicted of violating a criminal syndicalism law came from Ohio, whose statute was virtually identical to the California law under which Warren had won a conviction against Taylor and had sustained it against Whitney. This time, the defendant was a Ku Klux Klan leader. He and like-minded figures had gathered on an Ohio farm to proclaim their hatred of blacks and Jews and to announce plans for a march on Congress. Addressing his fellow Klansmen with cameras rolling, the defendant, Clarence Brandenburg, spoke from beneath a red hood and issued a vaguely threatening, illiterate promise: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”50

  John Taylor had said and done far less to warrant his criminal conviction in 1920, but now the man who prosecuted Taylor for threatening security rose to the call of freedom. “We are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action,” the Warren Court ruled. “Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California . . . cannot be supported, and that decision is therefore overruled.”51 Douglas and Black chimed in with their harder-line defenses of the First Amendment, but in this case there were no dissents. Brandenburg, like so much of the Warren Court’s best work, was unanimous, though this time its unanimity was tinged with sadness. Fortas was the author of Brandenburg, but he was gone by the time it was decided. The Court decided Brandenburg by a vote of 8-0.

  Brandenburg completed the Court’s long journey toward the embrace of radical speech: from Dennis, where Douglas sputtered his disapproval of the Smith Act but lost to a majority willing to punish the teachers of Communism; to Whitney, where Brandeis scolded men who had “feared witches and burnt women” but where the Court had upheld Whitney’s criminal conviction, a conviction won by Warren’s colleagues in the Alameda district attorney’s office; and now, at last, to Brandenburg, where the Court declared that speech triumphed over fear.

  Brandenburg and Powell were handed down a week apart. With them, Warren’s work as chief justice was finished. He did not give any sign of unhappiness about his impending retirement, but as the date had drawn closer, his grandson Jeffrey urged him to reconsider. Jeffrey, then a college student at Warren’s
alma mater, was growing up in a nation at war and at an enraged university. He begged his grandfather to stay with the Court, not to yield his position at such an urgent moment. Warren’s mind was made up, but with just a week left in his tenure, he paused to write a note in his own hand to explain himself to his grandson. “We are passing through one of the most troublesome times of human history,” the chief justice wrote his grandson:

  The world is disjointed, fragmented, embittered, cynical, and dominated by wars and threatened wars. It is beset by poverty in some segments of society while others are more affluent than ever before in history. Discrimination is rampant and opportunities for the good life are grossly unequal.

  Of course, I can understand the feelings of youth. . . . I can appreciate the anxieties about their future—the Vietnam War, the draft, the arms race, the exhaustion of our resources on military expenditures to the starvation of our domestic problems of poverty, slums, education, environmental pollution, etc. Often I ask myself why all of these problems should surface in my lifetime. Is it because we who are living today have brought them into existence or is it because they are of ancient origin and we like other generations before us have not been able to measure up to them?

  Slavery, he reminded Jeffrey, had been abolished more than a hundred years earlier, but “the badge of it is still on millions of our citizens, poor souls.” Without crediting himself, Warren noted that there, at least, the conscience of the nation had awakened. “Now they can vote everywhere in the nation, they can attend non-segregated schools as fast as law can push human prejudice, the Jim Crow vehicles of travel are of the past, they can be served in all hotels, restaurants, theaters and other places of public accommodation such as parks, beaches and other places of recreation.”

  “So, Jeff,” Warren continued, “we now ask ourselves, what should we do about all of this?” For Warren, the answer fused his lifetime of patient, deliberate action with his increasingly deep faith in young people. “I really believe, Jeff, that what our country needs now is the youth of America—not to destroy what is but to build—to insist on righting the wrongs of society and during its years of stewardship implement the ideal of Lincoln for ‘a government of the people, by the people and for the people’ so that it will not ‘perish from this earth.’ ”52 Warren closed by thanking Jeffrey for the faith and confidence that spurred his request that his grandfather stay on. No, Warren said, he would not stay at the Court. But as Warren prepared to go, he understood that he left his values imprinted on his nation, in its laws, and in its young people. Nixon and the war might threaten those values, but Warren retired with the conviction that they were consistent with the nation’s past and worthy of its future. He left the Court as he had arrived—a patient optimist, conscious of his country’s failings, confident in its ability to right them.

  On June 23, 1969, Warren handed down the final decisions of the Warren Court. Fittingly, they prohibited police from ransacking homes during searches, protected defendants against double jeopardy, and restricted courts from handing out stiffer sentences to defendants who were ordered retrials. Then Warren gazed down from the bench to the counsel table, where a lawyer with little experience in the High Court patiently waited his turn. The lawyer, President Richard Nixon, then rose to the podium and spoke, becoming the first sitting president ever to address the United States Supreme Court. “Mr. Chief Justice,” Nixon began, “may it please the Court.”

  Nixon wore a cutaway coat and tails, the traditional dress of government lawyers appearing at the Supreme Court bar. Speaking without notes, he recalled his two arguments in the Supreme Court—both in the Hill case—and joked that the only ordeal more challenging than a presidential press conference was a Supreme Court argument. Nixon paid tribute to Warren’s long service, a gracious act toward an old foe. “Will Rogers, in commenting upon one of the predecessors of the Chief Justice, Chief Justice William Howard Taft, said that ‘It is great to be great. It is greater to be human,’ ” Nixon recalled. “I think that comment could well apply to the Chief Justice as we look at his 52 years of service.” Nixon then remarked on the continuity and change that tug in opposing directions across the history of the Court and nation—that the Warren Court gives way to the Burger Court, that the demand for progress pulls against the dignity of order. “It was always that way; may it always be that way,” Nixon concluded. “And to the extent that it is, this nation owes a debt of gratitude to the Chief Justice of the United States for his example.”53

  Warren thanked Nixon for his grace. “[Y]our words,” he said, “are most generous and are greatly appreciated, I assure you.” Both men knew of their many feuds and disagreements, and they knew that those around them knew them as well. For a moment, they put them aside to honor together the traditions they jointly admired. But old habits are hard to break, and the chief justice took a moment to point out to Nixon, “because you might not have looked into the matter,” that the Court is different from Congress or the presidency. Presidents, members of the House, and senators sit for terms, and each presidency, each new Congress, is a distinct entity. The Court, by contrast, is a continuing body, its membership developing over time, rooted in “the eternal principles of our Constitution,” but changing as well. “We, of course, venerate the past,” Warren said, “but our focus is on the problems of the day and of the future as far as we can foresee it.”54 Warren hailed the Court’s devotion to service, its fractious virility, its embrace of controversy.

  “So,” he concluded, “I leave in a happy vein.” He then called for Warren Burger, who joined the chief justice on the bench and took the oath. There was no applause. None is permitted inside the Court. Warren left to silence.

  His departure was a national event and an intimate parting. The nation celebrated his service with a tribute on the Mall. The event was held at the Lincoln Memorial, a fitting reminder of the course of freedom that Lincoln had launched and Warren had steered to triumph, and the same spot where Martin Luther King had electrified America in 1963. The brethren marked Warren’s retirement with a reunion of the Court’s extended family. The widow of Justice Jackson attended; the Whittakers could not, but chipped in for the gifts. Arthur Goldberg, then a private lawyer but always a member of the brethren, decided at the last minute to come, and arrived from New York. On the evening of June 6, just before the term ended, the justices, current and retired, and their wives merrily boarded the S.S. Sequoia, the presidential yacht, for an evening to toast their departing chief. All rose to their traditional roles—Black, the differences with Warren of recent years put aside for the night, acted as the MC, the Court’s voice. Elizabeth Black, the lovely wife of the senior justice, presented Nina with a gold bracelet the justices had engraved to the “First Lady of the Judiciary, 1953-1969.” Bill Douglas gave the chief his gift, an elaborate Winchester shotgun, a muscular reminder that Warren’s liberalism, like Douglas’s, was never at the expense of his forcefulness. Brennan, of course, was responsible for pulling together the majority—he solicited the contributions for the gifts and oversaw planning for the party.55

  Warren’s move to retirement was not an easy one. He had been in active, public life for more than half a century, moving from courtroom prosecutor to district attorney to attorney general to governor to chief justice with almost no interruption. For fifty years, every change of job had expanded the range of his intellect and influence. Now, for the first time in his life, Warren stepped back from power. And as he did, he lost a friend. Drew Pearson had been a confidant and traveling companion, a liaison to the White House and a shipmate on cruises. Warren admired Pearson’s pluck and sophistication. Pearson, in turn, revered Warren, and in 1967, Warren agreed to a long series of interviews in which he was unusually candid with Pearson. Pearson had hoped to write a biography of Warren, and had prepared preliminary drafts of early chapters. That Warren would entrust Pearson with such a job was evidence of their closeness. But Pearson would not live to see the book finished. He was in and out of
the hospital that August, and Warren visited him on August 21. Four days later, Warren left for a conference in Bangkok. While there, he learned that Pearson had died.56

  When he returned home, Warren was given an office at the Court and allowed to hire one clerk a year, but that seemed, at least at first, more than he could use. He kept a light schedule for the most part, continuing to come to the Court every morning, arriving usually around nine-thirty, eating lunch there and then going home in the early evening. He spoke often to groups, and pressed his clerk into speechwriting service. And he and Nina traveled frequently, leaving his clerk with little to do in his absence.57 Although Warren had made use of the clerks assigned to retired justices, he himself would not allow his annual clerk to work with Burger, whom Warren distrusted. As a result, some of his clerks in retirement found the experience trying—they were assigned to a great man, but had little to do.58

  The principal focus of Warren’s retirement, it seemed when he left the Court, was to produce a memoir. Warren had announced his intention to write such a book and had contracted with Doubleday to produce one, but as he tried to settle into the work, it became less an opportunity than a source of sullen obligation. Warren was not a natural memoirist. His view of the Court’s sanctity prevented him from revealing the deliberations behind important decisions, and his reticence to examine his past made him an unlikely source of new insights into his own life. And so he found diversions. Rather than focus on his autobiography, Warren produced an extended essay on the state of American liberty. Titled A Republic, If You Can Keep It, it included a few thoughtful passages, but the best that can be said of it is that it was short. Indeed, it added little to his note to Jeffrey Warren, though at least it provided a dignified venue for Warren to contribute his ideas on the state of the country and allowed him the opportunity to attach two appendixes: the Constitution and the Declaration of Independence.