Justice for All

by Jim Newton

  58 Ibid.

  59 Undated handwritten note by Eisenhower on use of troops in Little Rock, Eisenhower Library, Little Rock school integration crisis file (available in online holdings).

  60 Telephone call log for Eisenhower’s day, Sept. 25, 1957, Eisenhower Library, Little Rock school integration crisis file (available in online holdings).

  61 Ambrose, Eisenhower: Soldier and President, p. 447.

  62 Warren schedule, Sept. 20, 1957, LOC, MD, Earl Warren papers, Personal file, 1957 Calendars.

  63 Cooper v. Aaron, 358 U.S. 1 (1958). See also Marshall’s oral argument from Aug. 28, 1958, and Tushnet, Making Civil Rights Law, and Powe, The Warren Court and American Politics, p. 159.

  64 Burton, still in the habit of rating the oral arguments in his diary, gave Butler an “excellent.”

  65 Cooper v. Aaron oral argument, Aug. 28, 1957. This exchange is taken from the tape of the argument, made available by the Oyez Project, Northwestern University (Oyez.com).

  66 See, for instance, Ed Cray, Chief Justice, p. 346. Relying on Heyman’s recollection, Cray places the exchange at the August 28 argument, though neither transcript nor tape of that day supports the version presented. Heyman relayed the same account to me in our interview on October 21, 2003. Even if Warren’s comment to Butler was made out of earshot of the court reporter, it eluded the press covering the argument and appears to have made little impression on Butler, as he did not repeat it to friends and colleagues with whom he argued the case and who later spoke with me.

  67 Tushnet, Making Civil Rights Law, p. 260.

  68 Transcript of oral argument in Cooper v. Aaron, Sept. 11, 1958, provided by the Librarian of the Supreme Court.

  69 Harlan draft to conference, Sept. 18, 1958, PU, ML, Harlan papers, Cooper v. Aaron file.

  70 Cooper v. Aaron, 358 U.S. 1 (1958).

  71 Ibid.

  72 Memoirs, pp. 298-99.

  73 The analysis of the 1958 attack on the Court is contained in Powe, The Warren Court and American Politics. Powe’s quotation is from his conversation with me on January 19, 2005.

  74 Frankfurter letter to Hand, Nov. 27, 1956, LOC, MD, Frankfurter papers, General correspondence, Learned Hand (Reels 39-40).

  75 Learned Hand, The Bill of Rights, p. 71.

  76 Trop v. Dulles, 356 U.S. 86 (1958).

  77 The circulation of drafts and dates comes from Harlan’s case file, PU, ML, Harlan papers, Trop v. Dulles file.

  78 Trop v. Dulles, 356 U.S. 86 (1958).

  79 That language has found contemporary purchase in the assessment of capital punishment. It was used in 2002 by the Court majority to strike the executions of mentally retarded defendants (Atkins v. Virginia ), and used again in 2005 to banish the executions of minors (Roper v. Simmons).

  80 Burton diary entry, July 17, 1958, LOC, MD, Burton papers, diary. After Eisenhower’s retirement, the former president was said to have remarked that the Warren and Brennan appointments were his two biggest mistakes, “damn-fool mistakes,” in some retellings. Although the evidence of that statement is indirect—Brownell, for one, doubted that Eisenhower would say such a thing—the president’s comment to Burton makes clear that Eisenhower did indeed regret those appointments, whether or not he said so colorfully.

  81 Gerald Gunther, Learned Hand, p. 661.

  82 Robert Caro, Master of the Senate, p. 1033. See also Powe, The Warren Court and American Politics, p. 133.

  83 Memoirs, p. 313.

  84 Bartkus v. Illinois, 359 U.S. 121 (1959).

  85 Bartkus v. Illinois, 355 U.S. 281 (1958).

  86 End-of-term memo, 1958, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.

  87 Ibid.

  88 Ibid.

  89 Author interview with Jim Adler, Jan. 14, 2005.

  90 Bartkus v. Illinois, 329 U.S. 121 (1959).

  91 The decision in Bartkus remains the law today. After two Los Angeles police officers were convicted in 1993 for violating the civil rights of Rodney G. King, they argued that their previous trial in state court on assault charges arising from the same beating should invalidate the federal prosecution. The Supreme Court upheld their convictions in 1996 (Koon v. United States).

  92 New York Times, March 21, 1961.

  93 Ibid.

  94 Barenblatt v. United States, 360 U.S. 109 (1959).

  95 Ibid.

  96 Ibid. (dissent).

  97 Ibid.

  98 Stephen Ells, “Willard Uphaus: A Prisoner in Thoreau County Becomes One of New Hampshire’s Men of the Century,” Internet article, Aug. 4, 2001.

  99 Uphaus v. Wyman, 360 U.S. 72 (1959).

  100 Ibid. (dissent).

  101 Ells, “Willard Uphaus.”

  102 Washington Post editorial, Sept. 7, 1959.

  103 New York Times, June 14, 1959.

  104 Memoirs, p. 343.

  105 Warren schedule, Oct. 28 and 30, 1959, LOC, MD, Earl Warren papers, Personal file, 1959 Calendars.

  106 Greensboro Record, Feb. 2, 1960.

  107 Author interview with Earl Warren, Jr., Nov. 25, 2003. See also interviews with Jesse Choper, Ira Michael Heyman, and Jeffrey Warren.

  108 Theodore H. White, The Making of the President, 1960, pp. 203-16.

  109 Johnson letter to Judge H. R. Wilson, May 28, 1954, LBJ Library, Johnson Senate papers, Legislative files, Social welfare (Segregation) folder.

  110 Taylor Branch, Parting the Waters, pp. 360-61.

  111 Ibid., p. 375.

  112 Ibid., pp. 375-76. See also White, The Making of the President, 1960, p. 315. White’s account implies that Walsh drafted his statement just hours after King was imprisoned. Branch makes clear that it was later, and completed at a time when it had become superseded by events.

  113 Branch, Parting the Waters, p. 362.

  114 Ibid., p. 370.

  115 Author interview with Virginia Warren, May 31, 2004.

  116 Swig letter to Warren, Feb. 1, 1961, LOC, MD, Warren papers, personal papers, Ben Swig file.

  117 Author interview with Bruce Boynton, Dec. 27, 2005.

  118 Boynton v. Virginia, 364 U.S. 454 (1960).

  119 Author interview with Jesse Choper, Oct. 20, 2003.

  120 Boynton v. Virginia, 364 U.S. 454 (1960).

  121 Warren’s insistence that the case not interrupt Boynton’s law career was vindicated by Boynton’s life thereafter. He passed the bar examination and applied for admission to the Alabama bar. The association informed him that it was inquiring into conviction in the bus terminal case, notwithstanding that it had been overturned by the Court. Matters thus stood for years while Boynton instead practiced in Tennessee. Finally, in 1966, Boynton was allowed to practice law in Alabama. Thirty years later, the same bar association that had blocked his admission for nearly a decade named him one of its “Living Legends.”

  122 Robert Frost, 1942 (dated, handwritten copy included in the collection of the LOC).

  123 Thurston Clarke, Ask Not, p. 188.

  CHAPTER 21. KENNEDY, KING, AND A NEW ERA

  1 Kennedy telegram to Warren, March 23, 1963, LOC, MD, Warren papers, Presidents’ correspondence, 1953-1963.

  2 Jacqueline Kennedy letter to Warren, Dec. 20, 1963, LOC, MD, Warren papers, Presidents’ correspondence, 1953-1963.

  3 Kennedy letter to Warren, Jan. 25, 1961, LOC, MD, Warren papers, Presidents’ correspondence, 1953-1963.

  4 Kennedy letter to Warren, Jan. 28, 1961, LOC, MD, Warren papers, Presidents’ correspondence, 1953-1963.

  5 Author interview with Flannery, Feb. 2, 2005.

  6 Author interview with Ziffren, Jan. 12, 2005.

  7 Leo Katcher, Earl Warren: A Political Biography, p. 426.

  8 Mapp v. Ohio, 367 U.S. 643 (1961).

  9 Irvine v. California, 347 U.S. 128 (1954; concurrence).

  10 Harlan letter to Clark, May 1, 1961, PU, ML, Harlan papers, Mapp v. Ohio case file.

  11 Mapp v. Ohio, 367 U.S. 643 (1961).

  12 Lucas Powe, The Warren Court and America
n Politics, pp. 198-99.

  13 Bulletin of the John Birch Society, January 1961, copy supplied to author by the Birch Society’s public affairs office.

  14 For background on the John Birch Society, see its Blue Book and White Book, official publications of the organization published annually in the late 1950s and early 1960s.

  15 New York Times, July 30, 1963.

  16 Bulletin of the John Birch Society, January 1961.

  17 Ibid.

  18 New York Times, June 18, 1964 (AP report from Boston, dated June 17); also New York Times, July 30, 1963.

  19 “Twelfth Report of the Senate Fact-Finding Subcommittee on Un-American Activities,” Report of the California Legislature, 1963.

  20 See, for instance, FBI memos of Feb. 28 and Oct. 25, 1963, and Feb. 6, 1964 (FBI documents 94-1-5619- 272, 273, 275, and 287).

  21 Letter writer to FBI, June 17, 1964, FBI document 94-1-5619-290.

  22 Rosen to Belmont, Sept. 17, 1962, FBI document 157-6-53-94.

  23 Author interview with Douglas Kranwinkle, April 2003.

  24 Memoirs, p. 304.

  25 Ibid., p. 305.

  26 Ibid., p. 304.

  27 Los Angeles Times editorial, March 12, 1961. See also Robert Gottlieb and Irene Wolt, Thinking Big, p. 337.

  28 Philip Chandler letter to Norman Chandler, May 5, 1963, Los Angeles Times History Center, Norman Chandler files. At the time of my research, the complete files of Norman Chandler were in transition from the Times to the Huntington Library. I requested copies of those files from their interim curator, Bill Stinehart. He denied that request without explanation, first orally and then in writing.

  29 Norman Chandler letter Philip Chandler, June 19, 1963, Los Angeles Times History Center, Norman Chandler files.

  30 Memoirs, p. 305.

  31 Francis X. Gannon, Biographical Dictionary of the American Left, pp. 574-75.

  32 Memoirs, p. 310.

  33 End-of-term memo, 1961, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.

  34 Colegrove v. Green, 328 U.S. 549 (1946).

  35 Ibid.

  36 Gomillion v. Lightfoot, 364 U.S. 339 (1960).

  37 Memoirs, p. 307.

  38 End-of-term memo, 1961, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.

  39 Author interview with Peter Ehrenhaft, Jan. 31, 2005. See also end-of-term memo, 1961, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.

  40 Harlan letter to Whittaker and Stewart, Oct. 11, 1961, PU, ML, Harlan papers, Baker v. Carr file.

  41 Frankfurter note to Harlan, Oct. 11, 1961, PU, ML, Harlan papers, Baker v. Carr file.

  42 End-of-term memo, 1961, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.

  43 Ibid.

  44 Bernard Schwartz, Super Chief, p. 424.

  45 Craig Alan Smith, Failing Justice, p. 219. Also author interview with Jim Adler, Jan. 14, 2005.

  46 Author interview with Jim Adler, Jan. 14, 2005.

  47 Schwartz, Super Chief, p. 428.

  48 Robert Dallek, An Unfinished Life, p. 493.

  49 It is ironic, given that Warren helped scotch the Hastie nomination on the grounds of his conservatism, that White ended up being one of the most conservative members of the Warren Court.

  50 Frankfurter letter to Kennedy, Aug. 28, 1962, LOC, MD, Brennan correspondence file, 1961-1964.

  51 Author interview with Jim Adler, Jan. 14, 2005.

  52 New York Times, March 28, 1962.

  53 Ibid.

  54 New York Times transcript of Kennedy press conference, March 30, 1962.

  55 Engel et al. v. Vitale et al., 370 U.S. 421 (1962).

  56 Ibid.

  57 New York Times, June 26, 1962.

  58 New York Times, June 28, 1962.

  59 Brown letter to McWilliams, Aug. 2, 1974, UCLA, Charles E. Young Research Library, Special Collections, Carey McWilliams papers. See also Edmund Brown, Sr., Earl Warren: Fellow Constitutional Officers.

  60 Ibid.

  61 Author interview with Earl Warren, Jr., Nov. 25, 2003.

  62 Ibid.

  63 Oakland Tribune, Sept. 15, 1962.

  64 Ibid.

  65 Jack Harrison Pollack, Earl Warren: The Judge Who Changed America, p. 215.

  66 Tape of press conference accessed at www.historyplace.com.

  67 Richard Reeves, President Kennedy, Profile of Power, p. 435. McGrory’s comment comes from a 1964 Press Panel oral history prepared by the Kennedy Library.

  68 Oral argument in Gideon v. Wainwright, 372 U.S. 335 (1963). Argument accessed at Oyez.com.

  69 Abe Fortas’s oral argument in Gideon v. Wainwright, 372 U.S. 335 (1963), Jan. 15, 1963. Argument accessed at Oyez.org.

  70 Carnley v. Cochran, 369 U.S. 506 (1962).

  71 Powe, The Warren Court and American Politics, pp. 382-83.

  72 Douglas v. California, 372 U.S. 353 (1963).

  73 Powe was the first to discover the intertwined history of Douglas and Gideon, and he notes that the justices held Douglas over because they already had secured Fortas to argue Gideon as the landmark case. Having done so, they did not then want to steal his thunder by announcing Douglas first.

  74 Gideon v. Wainwright, 372 U.S. 335 (1963).

  75 Ibid. (concurrence).

  76 Taylor Branch, Parting the Waters, p. 705.

  77 King’s case challenging his arrest eventually found its way to the Supreme Court and posed one of the Court’s most difficult problems of the civil rights era. It reluctantly upheld the conviction, concluding that while the “breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question,” the protesters should have challenged it legally rather than simply violate it. Stewart wrote for the majority in that case. Warren dissented, joined by Brennan and Fortas (Walker v. City of Birmingham, 388 U.S. 307 [1967]). When King learned of the ruling, he remarked, “Now even the Supreme Court has turned against us.” Taylor Branch, At Canaan’s Edge, p. 623.

  78 Branch, Parting the Waters, p. 761.

  79 Martin Luther King, Jr., The Autobiography of Martin Luther King, Jr., chapter 19.

  80 Andrew Young, An Easy Burden, p. 250.

  81 End-of-term memo, 1962, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.

  82 Ibid.

  83 NAACP v. Button, 371 U.S. 415 (1963).

  84 Dallek, An Unfinished Life, pp. 603-5.

  85 Kennedy Address to the Nation, June 11, 1963, Public Papers of the President, 237—Radio and Television Report to the American People on Civil Rights. Obtained courtesy John Woolley and Gerhard Peters of The American Presidency Project, University of California at Santa Barbara; http://www.presidency.ucsb.edu.

  86 Branch, Parting the Waters, p. 882.

  87 Drew Pearson diary entry, Aug. 29, 1963, LBJ Library, Drew Pearson papers, Earl Warren #2 file.

  88 Branch, Parting the Waters, p. 883.

  89 Pollack, Earl Warren: The Judge Who Changed America, p. 219.

  90 Kennedy telegram to Warren, March 23, 1963, LOC, MD, Warren papers, personal file, Presidents’ correspondence, 1953-1963.

  91 Kennedy letter to Warren, Sept. 23, 1963, LOC, MD, Warren papers, personal file, Presidents’ correspondence, 1953-1963.

  92 Various letters, 1953-1954, LOC, MD, Warren papers, personal papers, real estate file.

  93 Katharine Graham, Personal History, p. 257.

  94 Drew Pearson diary entry for Aug. 4, 1963, LBJ Library, Pearson papers, diaries.

  95 Evan Thomas, The Man to See, p. 239.

  96 Author interview with Jeffrey Warren, Aug. 26, 2003.

  97 Proceedings of the Bar and Officers of the Supreme Court of the United States, Proceedings Before the Supreme Court of the United States, May 27, 1975.

  98 Author interview with Warren Olney IV, Feb. 10, 2004.

  99 Author interview with Judge James Lee Warren, Nov. 23, 2003.

  100 This ev
ent is captured in news photographs of the evening. Other details, including Warren’s reaction to the Kennedys, were supplied by papers and recollections of Jeffrey Warren, interviewed by the author on Aug. 26, 2003.

  101 Pollack, Earl Warren: The Judge Who Changed America, p. 221.

  CHAPTER 22. THE LONGEST YEAR

  1 John Weaver, Warren: The Man, the Court, the Era, p. 300.

  2 Author interview with Beytagh, April 8, 2005. See also McHugh letter to John Weaver, Oct. 12, 1965, LOC, MD, Warren papers, Kennedy file.

  3 Jack Harrison Pollack, Earl Warren: The Judge Who Changed America, p. 222.

  4 McHugh letter to John Weaver, Oct. 12, 1965, LOC, MD, Warren papers, Kennedy file.

  5 Warren handwritten and typewritten statements, Nov. 22, 1963, LOC, MD, Warren papers, Personal file, Presidents’ correspondence, 1953-1963.

  6 Author interview with Beytagh, April 8, 2005. Johnson’s inquiry was made to Robert Kennedy, who forwarded it to Nicholas Katzenbach. He eventually read the oath to the Johnson party, by then on Air Force One on the Love Field tarmac in Dallas. The oath was administered by Sarah Hughes, a Texas federal judge whose appointment had been a source of tension between Johnson and the Kennedy administration to which he was uncomfortably appended. In the aftermath of that day, the questions about the administration of the oath—whether Robert Kennedy or Johnson had suggested it, whether it was even necessary at all—would widen the already broad rift between Johnson and Kennedy. See William Manchester, The Death of a President, 1960, and Max Holland, The Kennedy Assassination Tapes.

  7 Manchester, The Death of a President, 1960, p. 10.

  8 Manchester places Nina Warren at home at the time of the assassination. Beytagh insists she was at a luncheon and returning that afternoon. Because Beytagh’s memory of that day is clear—and because Manchester garbles some other small details regarding Warren (his secretary’s name, for instance, appears in Manchester as Dorothy not Margaret McHugh)—I have relied on Beytagh. Beytagh’s account also explains why Warren drove with him, not with Clemencia and Nina, to Andrews Air Force Base that evening.

  9 Author interview with Beytagh, April 8, 2005.

  10 Manchester, The Death of a President, 1960, p. 401.

  11 Oral history interview with Warren, Sept. 21, 1971, by Joe B. Frantz, LBJ Library (Internet copy). Also author interview with Beytagh, April 8, 2005, and follow-up interview. In his memoirs, Warren wrote that he was accompanied by Nina at Andrews that evening, and his daily schedule for November 22 suggests her presence as well. That does not agree with Manchester’s account or Beytagh’s memory, though it is possible that she joined the chief justice after Beytagh dropped him off, since she still had access to the chief justice’s car.