The start of the liberal era of the court began, strangely enough, with Republican politicking. Earl Warren (1891-1974) was a prominent player in Republican politics as California’s popular governor as well as Thomas E. Dewey’s 1948 running mate. Although Warren had a reputation as a progressive Republican governor (he even tried to push for compulsory health insurance) and in 1944 had called for a more liberal GOP at the Republican National Convention, he maintained good relations with both the liberal and conservative wings of the party. However, from the very beginning Warren took a disliking to a young politician named Richard Nixon. In 1946, Warren persuaded Harold Stassen to not come to California to campaign for Nixon when he ran against incumbent Democrat Jerry Voorhis for Congress. Nixon didn’t forget Warren’s intervention and the two men developed a rivalry that became a feud that lasted the rest of Warren’s life. Warren also declined to endorse his Senate bid in 1950 as he didn’t want a more conservative Republican competing with him for leadership in California and didn’t care for his sort of anti-communist politicking. Nixon would get to pay him back in spades when he wanted the presidency in 1952. He hoped he could be a compromise candidate between the conservative Taft and the moderate Eisenhower, but ultimately was undermined by Nixon, who in exchange for Eisenhower picking him as vice president, convinced most of the California delegation (of which he was part) at the Republican National Convention to switch their support from Warren to Eisenhower. This became known as “The Great Train Robbery” since he had boarded the Warren train going to the Republican National Convention in Chicago. Nixon backed procedural vote after procedural vote that helped Eisenhower secure the nomination.
Warren’s dislike of Nixon turned to hatred after this episode and he publicly snubbed him while thanking his supporters. Warren’s supporters gave the press the slush fund story that resulted in Nixon giving his “Checkers” speech on TV to save his career. To placate Warren, Eisenhower promised him the next spot available on the Supreme Court. This happened to be the chief justice spot, as Fred Vinson died suddenly of a heart attack in 1953. The impact of this would be apparent by the next year with Brown v. Board of Education. Warren had immediately made it clear to the justices where the decision would be going. By a 9-0 vote, the court found school segregation a violation of the 14th Amendment. Under any less strong or persuasive leadership, the decision may not have been unanimous. Some doubtful justices among the nine were Robert Jackson, Felix Frankfurter, Tom Clark, and Stanley Forman Reed, not to mention Vinson had some reservations himself before his passing. This has led some to draw the conclusion that had Vinson lived, Brown v. Board of Education would have been decided 5-4 in the opposite direction. It was Warren’s skills as a politician that won the justices over: he agreed to compromise in language to grant states flexibility in pursuing desegregation, which won over Jackson, Frankfurter, and Clark. Reed was only convinced to make it unanimous in a bid to avoid resistance to the ruling (Cray).
Warren quickly sided with Justices Hugo Black and William O. Douglas in their support of Supreme Court activism on social issues and individual liberties, and in 1956 he was joined by William J. Brennan Jr., a liberal Democrat who complimented Warren’s leadership with intellectual and legal prowess. Indeed, legal reasoning was a weaker spot of Warren’s, with legal historian Melvin Urofsky writing that “scholars agree that as a judge, Warren does not rank with Louis Brandeis, Black, or Brennan in terms of jurisprudence. His opinions were not always clearly written, and his legal logic was often muddled” (Urofsky, 838). Warren as a chief justice can be compared to Eisenhower as commander the American forces in Europe: they were tremendous in political leadership, but on legal questions and strategy respectively they were at best middling. He is also the distinct opposite of Justice James McReynolds, as while Warren excelled at the personal and not so much at the legal reasoning, McReynolds was a highly capable legal reasoner and conservative but was also tremendously disagreeable and openly bigoted to Jewish colleagues Brandeis and Cardozo.
Warren’s impact on the court turned the South against him and his decisions on criminal defendant rights, anti-subversive legislation, privacy, school prayer, and legislative reapportionment turned conservatives nationally against him while winning the praise of liberals. The John Birch Society and some other conservatives went as far as to call for Warren’s impeachment, but this never went anywhere. Some of his most notable decisions:
Brown v. Board of Education (1954) – Already mentioned above.
Yates v. United States (1957) – Dramatically weakened the Smith Act by requiring individuals to urge others to take violent action rather than holding beliefs that support violent action against the state. This hampered state efforts at suppressing communists. Decision vote: 6-1.
Mapp v. Ohio (1961) – The exclusionary rule applies not only to federal government, also to states. Decision vote: 6-3.
Engel v. Vitale (1962) – School prayer is unconstitutional. Decision vote: 6-1 (two justices didn’t participate).
Gideon v. Wainwright (1963) – States must provide attorneys for indigant defendants free of charge. Decision vote: 9-0.
Abington School District v. Schempp (1963) – Bible readings in schools unconstitutional. Decision vote: 8-1.
Reynolds v. Sims (1964) – State legislative districts must be based on population and no other factor. Warren considered this and other reapportionment cases to be his most important legacy. Decision vote: 8-1.
Griswold v. Connecticut (1965) – Right to privacy, although not explicitly written, is implied in Constitution. The central precedent used for Roe v. Wade (1973). Decision vote: 7-2.
Miranda v. Arizona (1966) – People who are arrested must be read their rights before they are interrogated. Decision vote: 6-3.
Loving v. Virginia (1967) – Laws against interracial relations and marriage are unconstitutional. Decision vote: 9-0.
In 1962, Warren openly supported Governor Edmund “Pat” Brown for reelection against challenger Richard Nixon and was overjoyed when he lost, laughing with President Kennedy over what the two men thought would be Nixon’s last press conference.
Warren was also appointed by President Johnson to head the commission investigating the assassination of President Kennedy. He once again applied his political skills to gain a unanimous vote on a report despite strong reservations from Senator Richard Russell of Georgia. Controversy over the commission’s finding of Lee Harvey Oswald as the lone gunman continues to this day. In 1968, Warren announced his retirement and had hoped that LBJ would fill the vacancy with a court liberal, but a combination of Senate Republicans and Southern Democrats blocked his pick of his man Abe Fortas. With the Senate refusing to confirm him or another Johnson nominee, Warren had to swear in his rival Nixon and, worse yet, have his successor on the court be Judge Warren Burger, a known Warren Court critic. He also ended up confirming four justices, with Warren Burger, Lewis Powell, to a considerably lesser extent Harry Blackmun (who would later shift to the liberal wing of the court), and especially William H. Rehnquist weakening a considerable number of Warren Court decisions, particularly those involving criminal defendant rights. Much of the partisanship that has surrounded the Supreme Court can be traced to the Warren Court’s decisions, the backlashes against them, as well as the bitter rivalry between Nixon and Warren.
Warren died on July 9, 1974, but just before he passed he told Justices Douglas and Brennan, who were by his side at his deathbed, that they must rule against Nixon in United States v. Nixon (1974), which forced him to turn over the Watergate tapes. Two weeks later they did just that.
Warren was one of the strongest political leaders of the court in American history, but he was no legal scholar and didn’t develop doctrines like Justices Frankfurter and Black. The intellectual behind the liberalism of the court itself was Justice William J. Brennan Jr. Warren’s skill was in leadership, and it is why in influence only John Marshall and Roger B. Taney overshadow him as chief justice.
References
Cray, E. (1997). Chief Justice: A biography of Earl Warren. New York, NY: Simon & Schuster.
Farrell, J.A. (2017, March 21). The Inside Story of Richard Nixon’s Ugly, 30-Year Feud with Earl Warren. Smithsonian Magazine.
Retrieved from
Urofsky, M.I. (2001). The Warren Court: Justices, Rulings, and Legacy. Santa Barbara, CA: ABC-CLIO.
Mad Politics: The Bizarre, Fascinating, and Unknown of American Political History 