by Jim Newton
3 William O. Douglas, The Autobiography of William O. Douglas: The Court Years, 1939-1975, p. 81.
4 Robert and Michael Meeropol, We Are Your Sons, pp. 236-38.
5 Richard Kluger, Simple Justice, p. 585.
6 Youngstown Co. v. Sawyer, 343 U.S. 579 (1952).
7 See, for instance, Roger Newman, Hugo Black: A Biography, p. 367.
8 Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, p. 243.
9 Douglas, The Autobiography of William O. Douglas, p. 243.
10 Felix Frankfurter, From the Diaries of Felix Frankfurter, p. 336.
11 Bernard Schwartz, ed., The Warren Court: A Retrospective, p. 9.
12 Drew Pearson, Diaries 1949-1959, entry for March 17, 1950, p. 112.
13 Abraham, Justices and Presidents, pp. 247-48.
14 Jeffrey D. Hockett, New Deal Justice, p. 143.
15 Ibid., p. 160.
16 G. Edward White, The American Judicial Tradition, p. 192.
17 Eugene Gerhart, America’s Advocate: Robert H. Jackson, p. 191.
18 Ibid., p. 175 (quoting Time).
19 Minersville School District v. Gobitis, 310 U.S. 586 (1940).
20 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
21 Ibid.
22 Ibid.
23 Ibid. (dissent).
24 Roger Newman, Hugo Black: A Biography, p. 3.
25 Ibid., p. 195.
26 Joseph Alsop and Turner Catledge, The 168 Days, p. 301.
27 Newman, Hugo Black, p. 251.
28 Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers of America, U.S. 161 (1945).
29 Gerhart, America’s Advocate, p. 251.
30 Newman, Hugo Black, p. 337.
31 Ibid., p. 345.
32 Rochin v. California, 342 U.S. 165 (1952).
33 Adamson v. People of State of California, 332 U.S. 46 (1947) (dissent).
34 Newman, Hugo Black, p. 354.
35 One thing that Douglas had in common with Frankfurter, Black, and Jackson was that he arrived at the Supreme Court with no significant judicial background. That was true also, of course, for Warren.
36 Dennis v. United States, 341 U.S. 494 (1951).
37 Ibid.
38 Ibid. (dissent).
39 Memoirs, p. 276.
40 Warren letter to Douglas, Dec. 1, 1950, LOC, MD, William O. Douglas papers, Part 1, Earl and Nina Warren correspondence file.
41 Undated tribute written after Warren’s death in 1974, LOC, MD, William O. Douglas papers, Part 1, Earl Warren subject file.
42 Memoirs, p. 279.
43 Ibid., p. 280.
44 Burton diary entry, Oct. 5, 1953, LOC, MD, Harold H. Burton papers, Diaries, 1953.
45 Newman, Hugo Black, p. 427.
46 Burton letter to Warren with monograph enclosed, Oct. 12, 1953, LOC, MD, Warren papers, correspondence, Harold Burton file, 1952-57.
47 Warren letter to Douglas, Nov. 4, 1953, LOC, MD, Warren papers, correspondence, William O. Douglas, 1955-56.
48 Clark letter to Warren, Oct. 12, 1953, LOC, MD, Warren papers, correspondence, Tom C. Clark, 1953-1961.
49 Joseph P. Lash, From the Diaries of Felix Frankfurter (biographical introduction), p. 84.
50 Black to Hugo and Sterling Black, Oct. 15, 1953, LOC, MD, Black family papers, Hugo Black, Jr., file, 1953-54.
CHAPTER 16. SMEAR
1 Public hearings of the Subcommittee of the Committee on the Judiciary, Feb. 19, 1954, as quoted in New York Times, Feb. 20, 1954.
2 Memoirs, p. 274, note.
3 Ibid., p. 272.
4 Sacramento Bee, Oct. 30, 1977 (profile of Nina Warren).
5 See calendar entries for March 30 and April 30, 1954, LOC, MD, calendars for 1953-54.
6 Author interview with Warren Olney IV, Feb. 10, 2004. See also Warren Olney, Law Enforcement and Judicial Administration in the Earl Warren Era, p. 393.
7 Warren speech to Columbia University, Jan. 14, 1954, LOC, MD, Warren papers, speeches file. Also quoted in New York Times, Jan. 15, 1954.
8 Although it is impossible to determine the extent or cause, Langer’s life was characterized by distinct and abrupt shifts from euphoria to inactivity. His sympathetic biographer, Agnes Geelan, identified diabetes as a likely culprit; see The Dakota Maverick, p. 57.
9 Glenn Smith, Langer of North Dakota: A Study in Isolationism, p. 112.
10 New York Times, Feb. 18, 1954.
11 Two letters regarding Warren’s nomination that never found their way to the committee actually were among the more interesting. Loyd Wright, part of California’s disaffected right wing and soon to head the American Bar Association, urged Brownell not to pick Warren, whom Wright described as “not a Republican . . . [not] a lawyer nor an executive in the sense of the judiciary” (Wright telegram to Brownell, Sept. 28, 1953, HI, Loyd Wright papers, Political file, Earl Warren folder). Another letter was sent to Justice Jackson by a former clerk, one William H. Rehnquist. In it, Rehnquist reported that among his colleagues in Phoenix, “most everyone . . . was quite disappointed by the nomination of Warren. . . . The few opinions of Warren I have seen have not been very good” (undated but sent apparently in early 1954; Jackson’s chambers estimated it to have been written on April 24, 1954; LOC, MD, Jackson papers, General correspondence, William H. Rehnquist folder).
12 Testimony of William Rogers before the Subcommittee of the Committee on the Judiciary, Feb. 19, 1954, p. 84.
13 INS wire story, Feb. 2, 1954, carried in Los Angeles Evening Herald Express, copy in Judiciary Committee files on Warren nomination, Box 55.
14 Babcoke letter to committee, Dec. 2, 1953, Judiciary Committee files on Warren nomination, Box 53, file labeled “Protests, Arranged Alphabetically, from 97 Individuals.”
15 Undated letter signed “Mr. and Mrs. Fulton,” Glendale, California, Judiciary Committee files on Warren nomination, Box 53, file labeled “Protests, Arranged Alphabetically, from 97 Individuals.”
16 Gorke letter to committee, Jan. 2, 1954, Judiciary Committee files on Warren nomination, Box 53, file labeled “Protests, Arranged Alphabetically, from 97 Individuals.”
17 The numbers do not square with Langer’s “97 protests” because letters continued to arrive at the committee throughout the proceedings. As such, it is difficult to tell which ninety-seven Langer had in hand when he made his public comments. Although the file labeled “Protests, Arranged Alphabetically, from 97 Individuals” contains fewer than that many letters, other letters from the same time period are scattered throughout the six boxes of material.
18 A. F. Levy letter to Judiciary Committee, Jan. 8, 1954, Judiciary Committee files on Warren nomination, Box 53.
19 Wain O. Waco letter to Judiciary Committee, Feb. 20, 1954, Judiciary Committee files on Warren nomination, Box 52.
20 Undated statement by McCloskey, presented in writing to the Judiciary Committee, Judiciary Committee files on Warren nomination, Box 53.
21 Oral history interview with Warren Olney, Law Enforcement and Judicial Administration in the Earl Warren Era, p. 392.
22 Oral history interview with Warren, LBJ Library, p. 3 (Internet copy).
23 Undated statement by McCloskey, presented in writing to the Judiciary Committee, Judiciary Committee files on Warren nomination, Box 53.
24 Chicago Sun-Times, Feb. 22, 1954, reprinted by Washington Post.
25 University records confirm that McCloskey attended during that period but did not graduate.
26 McCloskey to Langer, March 27, 1953, Langer papers, Chester Fritz Library, University of North Dakota, McCloskey file.
27 McCloskey “Statement to the Senate” included in letter to Langer, July 1, 1957, Langer papers, Chester Fritz Library, University of North Dakota, McCloskey file.
28 Testimony of Warren Olney to the Subcommittee of the Committee on the Judiciary, Feb. 20, 1954, p. 13, Judiciary Committee files on Warren nomination, Box 51.
&nb
sp; 29 Letter to American Rally members, May 1954, William Langer papers, Chester Fritz Library, University of North Dakota, McCloskey file.
30 Chicago Sun-Times, Feb. 22, 1954, reprinted by Washington Post.
31 Memorandum from Judiciary Counsel to Langer, Judiciary Committee, Feb. 11, 1954, Judiciary Committee files on Warren nomination, Box 51.
32 Undated letter to Judiciary Committee, Judiciary Committee files on Warren nomination, Box 51. The letter is stamped “Rec’d Feb. 19, 1954,” but that is inaccurate, for the charge from the note appears in the counsel’s Feb. 11 memorandum; as such, it is impossible to know precisely when it was sent and received.
33 Rogers testimony before the Subcommittee of the Committee on the Judiciary, Feb. 19, 1954, p. 83, Judiciary Committee files on Warren nomination, Box 51.
34 L. B. Nichols to Tolson, Feb. 9, 1954, FBI document 77-61323-7.
35 Judge James Oakley letter to Warren, Feb. 12, 1954, LOC, MD, Warren papers, personal file, correspondence (confirmation file).
36 Warren investigation, Feb. 16, 1954, FBI document 77-6123-1.
37 Ibid.
38 Nichols to Tolson, Feb. 16, 1954, FBI document 77-6123-13.
39 Knowland appearance before Subcommittee of the Committee on the Judiciary, Feb. 19, 1954, p. 80.
40 New York Times, Feb. 20, 1954.
41 Ibid.
42 New York Times, Feb. 21, 1954.
43 Santa Monica Evening Outlook editorial, Feb. 23, 1954, copy in Judiciary Committee files on Warren nomination, Box 53.
44 Anne M. Fisher letter to Langer, Feb. 3, 1954, Judiciary Committee files on Warren nomination, Box 52.
45 Warren’s position on the loyalty oath was noted by the committee, and one clipping about the oath contained in the committee’s files bears a handwritten note suggesting that the committee subpoena Neylan to testify against Warren. During the FBI investigation, Warren, at William Rogers’s request, drew up a memo explaining his actions in that debate, and the FBI included it in its background report. The “charge” of opposing the oath, however, was placed on a list of those beyond the committee’s purview, and never engaged its interest.
46 McCloskey letter to Langer, March 27, 1953, William Langer papers, Chester Fritz Library, University of North Dakota, McCloskey file.
47 Langer letter to McCloskey, April 3, 1953, William Langer papers, Chester Fritz Library, University of North Dakota, McCloskey file.
48 McCloskey letter to Langer, Nov. 24, 1953, William Langer papers, Chester Fritz Library, University of North Dakota, McCloskey file.
49 Hearing of the Subcommittee of the Committee on the Judiciary, Executive Session, Feb. 20, 1954, p. 9, Judiciary Committee files on Warren nomination, Box 51.
50 Ibid., p. 21.
51 Only once in the Judiciary Committee records is there reference to a past association between McCloskey and Langer. It came in a Chicago Sun-Times story that ran after the February 19 hearing. In that story, which also appeared in the February 22 edition of the Washington Post, McCloskey described himself as a “disciple” of Langer. Langer demurred, acknowledging that he had known McCloskey for years and respected his judgment but noting that he did not consider him a “political disciple.”
52 Oral history interview with Warren Olney, Law Enforcement and Judicial Administration in the Earl Warren Era, p. 392.
53 Hearing of the Judiciary Committee, Executive Session, Feb. 24, 1954, p. 100, Judiciary Committee files on Warren nomination, Box 51.
54 Ibid., p. 147
55 This page of notes is included in the Judiciary Committee files. It is undated and unsigned, but its contents—references to Warren as “chief magistrate” and to “organized crime”—make it clear that it is a haphazard record of the Wilson testimony.
56 American Rally, January 1955.
57 Burton Crane letter to Warren, Feb. 21, 1954, LOC, MD, Warren papers, personal file, correspondence (confirmation file).
CHAPTER 17. ALL MEN ARE CREATED EQUAL
1 I have not attempted a complete history of the segregation cases. For those interested in such an analysis, Richard Kluger’s Simple Justice remains the definitive work, arrestingly written and meticulously accurate. I have relied on it extensively, as have all serious students of the period.
2 Vernon Parrington, Main Currents in American Thought, vol. 3, The Beginnings of Critical Realism in America, 1860-1920, p. 410. Quoted from Gunnar Myrdal, An American Dilemma, pp. 6-7.
3 Plessy v. Ferguson, 163 U.S. 537 (1896).
4 Ibid.
5 Ibid.
6 Ibid. (dissent).
7 Mark V. Tushnet, Making Civil Rights Law, p. 8.
8 Ibid., pp. 121-22.
9 State of Missouri ex rel. Gaines v. Canada, 305, U.S. 337 (1938). “Negro” does not have a capital N in the opinion; the stylistic decision rankled Marshall, who always capitalized it in his briefs and resented it when others did not.
10 Ibid. (separate opinion).
11 Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631 (1948).
12 Sweatt v. Painter, 339 U.S. 629 (1950).
13 Ibid.
14 Ibid.
15 McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
16 Ibid.
17 Ibid.
18 Sweatt v. Painter, 339 U.S. 629 (1950).
19 Executive Order 9981, “Establishing the President’s Committee on Equality of Treatment and Opportunity in the Armed Services,” signed by Truman, July 26, 1948. The document is contained in the desegregation collection of the Truman Presidential Library.
20 Richard Kluger, Simple Justice, p. 327.
21 William Faulkner, Essays, Speeches and Public Letters, p. 107 (from “A Letter to the Leaders in the Negro Race,” first published in Ebony, Sept. 1956).
22 Kluger, Simple Justice, p. 291.
23 Ibid., p. 294.
24 Ibid., p. 395.
25 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
26 Kluger, Simple Justice, p. 447.
27 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), footnote 10.
28 Kluger, Simple Justice, p. 349.
29 Ibid. See also Peter Irons, A People’s History of the Supreme Court, pp. 385-86.
30 Taylor Branch, Parting the Waters, p. 20.
31 Kluger, Simple Justice, p. 478.
32 Mark V. Tushnet, Making Civil Rights Law, pp. 162-63.
33 Ibid., p. 165.
34 Kluger, Simple Justice, p. 572.
35 Ibid., p. 573.
36 Ibid., p. 581.
37 Conference notes of Robert Jackson, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
38 Douglas, “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file. Included in the file are Douglas’s notes from the December 12, 1952, conference, mislabeled “Dec. 13, 1952.” Jackson’s notes support most of Douglas’s observations of the conference.
39 Conference notes of Robert Jackson, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
40 Douglas conference notes, Dec. 12, 1952, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
41 Jackson conference notes, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
42 Douglas “Memorandum for the File, in re Segregation Cases,” May 17, 1954, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
43 Ibid.
44 Douglas conference notes, Dec. 12, 1952, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
45 As he contemplated the cases, Jackson appears to have solicited the input of his clerks. One of their memos deserves special note because its author was William H. Rehnquist, later to join the Court himself and to ascend
to the chief justiceship. In 1952, young William Rehnquist took the position that Plessy was correctly decided and should be upheld. “I realize that is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy was right,” Rehnquist wrote. Fourteen years later, when his own appointment to the Court was presented to the Senate for its consideration, Rehnquist said those words had been written for Jackson to present to the other justices at conference and were not Rehnquist’s own views. That argument is almost certainly false, however, as the language and approach of the memo strongly suggest Rehnquist was speaking for himself. It is inconceivable, for instance, that Jackson would have so patronized his colleagues of long standing as to address them in conference by complaining that they had “excoriated” him; Rehnquist, by contrast, did in fact complain of the influence of liberal clerks on the Court over their justices and after leaving the Court wrote an article to that effect. And even should Jackson have complained of “excoriation,” would he have identified his critics as “liberal colleagues”? Jackson was a proponent of judicial restraint, but he was a lifelong Democrat, a friend and ally of FDR, and that president’s solicitor general and attorney general. Perhaps most tellingly, Rehnquist’s memo derided previous Court rulings that attempted to protect minorities and singled out the Jehovah’s Witness flag case as one in which the Court overreached. It is ludicrous to think Jackson would cite that case for that proposition. The Jehovah’s Witness opinion was written by Jackson himself, and it was one of his most celebrated opinions.
46 William O. Douglas, The Court Years, p. 113.
47 Douglas “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file.
48 Frankfurter memorandum for the conference, June 4, 1953, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file.
CHAPTER 18. JUSTICE
1 Thomas Jefferson, Autobiography, included in Jefferson, Writings, p. 44 (quoted in Gunnar, Myrdal, An American Dilemma, p. 85).
2 Newsweek, Oct. 19, 1953.
3 Burton diary entry, Dec. 8, 1953, LOC, MD, Harold H. Burton papers, Diaries, 1953.
4 Michael J. Klarman, From Jim Crow to Civil Rights, p. 311.