Earl Warren

Brown v. Board of Education was reargued on December 7, 8 and 9, 1953, two months after he took his seat, and the Court's conference on it, which Schwartz reconstructed from the notes of the justices who were there, opened with the new Chief Justice: 'the basis of segregation and "separate but equal" rests upon a concept of the inherent inferiority of the colored race,' and 'Personally, I can't see how today we can justify segregation based solely on race,' and 'I don't see how in this day and age we can set any group apart from the rest and say that they are not entitled to exactly the same treatment as all others.' The work of the next five months was to make the vote unanimous, and the Historical Society's account of the last holdout, Stanley Reed (§77) of Kentucky, has Warren telling him, 'Stan, you're all by yourself in this now,' and that he had to decide 'whether it's really the best thing for the country.' On May 17, 1954, the Chief Justice read the opinion for a Court of nine. 'In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted'; 'Today, education is perhaps the most important function of state and local governments'; to separate Black children from others 'solely because of their race generates a feeling of inferiority as to their status in the community'; and then the sentence: 'We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.' Four years later, when the Governor and Legislature of Arkansas defied the order in Little Rock, the Court answered in Cooper v. Aaron (1958) with an opinion that broke its own form to name all nine justices as its authors, and said that 'This Court cannot countenance a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders,' and that Brown's principles 'are indispensable for the protection of the freedoms guaranteed by our fundamental charter.' Across the country the John Birch Society put up the billboards that Matthew Dallek's history records: 'help save our republic - impeach Earl Warren.'

The opinions he wrote himself are not doctrinal essays, and the ones that lasted are the ones that state a principle and stop. On March 31, 1958, in two cases decided the same day, he lost one and won the other. In Perez v. Brownell, dissenting with Hugo Black (§76) and William O. Douglas (§79) against Felix Frankfurter's (§78) opinion for a Court of five that upheld an act of Congress taking citizenship away, he wrote that 'Citizenship is man's basic right, for it is nothing less than the right to have rights.' In Trop v. Dulles, for a plurality that Charles Whittaker (§91) joined, he wrote that 'The basic concept underlying the Eighth Amendment is nothing less than the dignity of man,' and because 'The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,' the sentence that every Eighth Amendment case since has had to quote or answer. Then the reapportionment cases. Baker v. Carr in 1962, William Brennan's (§90) opinion, opened the door; Reynolds v. Sims, decided June 15, 1964, was Warren's, and it is the one he said afterwards mattered most. 'Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.' Because 'the right of suffrage is a fundamental matter in a free and democratic society,' and 'the weight of a citizen's vote cannot be made to depend on where he lives,' the Equal Protection Clause 'requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.' John Marshall Harlan II (§89) dissented alone, in the sentences the previous chapter quoted, that the Constitution 'is not a panacea for every blot upon the public welfare.' The Attorney General who spoke at Warren's memorial quoted the Chief Justice's own reason for ranking the case first: 'I believe that if we had the' decision 'shortly after the Fourteenth Amendment was adopted that most of the problems confronting us today would have been solved by the political process.'

The old prosecutor's most famous opinion came on June 13, 1966. Miranda v. Arizona held, over four dissents, that 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards,' because 'without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist.' The opinion read the police manuals as evidence, 'A valuable source of information about present police practices,' and then wrote the warning that the country learned by heart: a suspect 'must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney.' It also said that 'the Constitution does not require any particular solution for the inherent compulsions of the interrogation process,' which the critics forgot and the Court later remembered. Schwartz records the question he put from the bench in the criminal cases, when counsel defending a conviction cited the precedents: 'but were you fair?' A year later, on June 12, 1967, in Loving v. Virginia, for a unanimous Court, he struck down Virginia's marriage law in an opinion that quoted the trial judge, 'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,' and answered him: 'The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,' and 'Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.'

He did one other thing in those years that no Chief Justice had done. On November 29, 1963, a week after Dallas, President Johnson created the commission that carries Warren's name, 'in recognition of the right of people everywhere to full and truthful knowledge concerning these events,' and Warren chaired it for ten months. Its report, delivered in 1964, concluded that 'The shots which killed President Kennedy and wounded Governor Connally were fired by Lee Harvey Oswald,' and that 'The Commission has found no evidence that either Lee Harvey Oswald or Jack Ruby was part of any conspiracy, domestic or foreign, to assassinate President Kennedy.' The country has argued about it since, and Paul Moke's 2015 life, on the shelf, is critical of the Chief Justice's part; this chapter records the finding and the argument, and adjudicates neither.

The Supreme Court Database gives the sixteen years a shape. Across 2,155 cases, 2,100 of them coded, his liberal share was 74.6 percent against a docket baseline of 62.0, a gap of twelve and a half points that puts him ninth of the thirty-three justices on the site's modern scale by distance from his docket, and second of thirty-three by share alone. He was seventeen points above his colleagues in criminal procedure, fourteen above them in civil rights, ten above in the First Amendment cases and sixteen above in economic cases; only in the cases about the Court's own power was he near them, at 45.9 against 41.0. He dissented in 11.0 percent of his cases against a baseline of 18.6, a Chief Justice who was on the winning side nine times in ten. His closest colleague across divided cases was Brennan, at 88.0 percent agreement over 1,185 of them; his furthest was Harlan II, at 38.6 over 1,250. The drift series answers the question this program asks, who moved, in the cleanest way of any Chief. His early terms put him at 73.4 against a bench of 58.9, a gap of nearly fifteen; his late terms at 70.3 against 63.3, a gap of seven. His own shift, three points, is not one the site scores as real. The bench's, more than four points toward him, is. The gap closed because the Court came to where he was, which is the arithmetic of what the appointments of 1956, 1962 and 1965 did, and the site ranks the change thirteenth of twenty-seven. The Brennan chapter found a man who stood still while the Court walked away from him. This one finds the man it walked toward.

On June 13, 1968, he wrote two letters to the President. The formal one said, 'Pursuant to the provisions of 28 U.S.C., section 371(b), I hereby advise you of my intention to retire as Chief Justice of the United States effective at your pleasure.' The other gave the reason, 'solely because of age,' and put it plainly: 'The problem of age, however, is one that no man can combat and, therefore, eventually must bow to it.' Johnson answered on June 26, 'With your agreement, I will accept your decision to retire effective at such time as a successor is qualified,' and named Abe Fortas (§95) to succeed him and Homer Thornberry to Fortas's seat. The Senate's own history of what followed records that Fortas became 'the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing,' that the hearings brought out his attendance at White House meetings and a privately funded stipend worth '40 percent of his Court salary,' that 'On October 1, 1968, the Senate failed to invoke cloture,' and that the nomination was withdrawn. The condition Johnson had written, a successor qualified, was never met, and Warren sat another term. Richard Nixon, elected that November, sent the Senate the name of Warren Burger (§97) on May 23, 1969; it confirmed him on June 9 by seventy-four votes to three; and on June 16 the Chief Justice delivered his last opinion for the Court, Powell v. McCormack, holding that 'the House has no power to exclude a member-elect who meets the Constitution's membership requirements,' because 'the people should choose whom they please to govern them.' A week later he administered the oath to his successor, after the exchange with which this chapter began, and went home.

He lived five years more, and Nixon's statement on his death called him 'a man to whom the public trust was a sacred trust' and 'a distinguished figure in the Republican Party,' who 'In all things he was never a partisan of political advantage, but always a partisan for America.' He died of a heart attack in Washington on July 9, 1974, the day after the Court heard argument in United States v. Nixon, and was buried, after an Army funeral, at Arlington National Cemetery. The Court sat in his memory on May 27, 1975. The Bar's resolution counted 'the culmination of 52 years of official public service' and found in the decisions of his years 'three interrelated themes': 'the concern with ensuring that the civil rights of all the people would be respected,' 'the effort to strengthen democratic processes of self-government,' and 'the structuring of an equitable system of criminal justice consistent with elemental human dignity.' Solicitor General Bork said that 'Earl Warren's recognition of and respect for the independence of his Brethren was a foundation for, rather than a relinquishment of, his leadership role on the Court.' Attorney General Levi said, 'He perceived the cases before him as human problems, not abstract issues,' and 'Earl Warren is an authentic leader. The people recognize him as such.' Chief Justice Burger, who had watched him at lunch with the colleagues who told stories about him, said that 'drawing on his lifetime of combat in the political arena, he would remind them that there would be little to write about if the Court's work were faithfully depicted.'

The measure of him is contested, and the chapter should say so. Schwartz, who wrote the judicial biography, concluded that 'Warren's leadership abilities and skill as a statesman enabled him to rank as second only to Marshall among our Chief Justices,' and recorded that it was Brennan 'who began to call Warren the "Super Chief."' Kurland, who thought the memoirs 'a dull book on an important subject,' ended his review with the other verdict: 'History may yet decide that the triumvirate that includes Warren contains not Marshall and Hughes, but rather his immediate predecessor and immediate successor: Fred M. Vinson and Warren E. Burger.' The book this chapter continues, writing in 1969 while he still sat, chose its ground in the reapportionment cases, where 'the precedents ran uniformly against judicial intervention' and yet 'unless the Supreme Court intervened, corrosion of confidence in state government would continue unchecked': 'Seen in those terms, the issue for the Supreme Court was not a legal one in any ordinary sense of the term; it was an issue of statesmanship. That assuredly is the standard by which Earl Warren would want to be judged as Chief Justice of the United States.' The record on this site cannot judge statesmanship. It can say that he sat second of thirty-three by the share of his votes, that he lost one case in ten, that the colleague he agreed with most was the one who gave him his nickname and the colleague he agreed with least was the one who wrote the dissents against him that the critics still quote, and that over sixteen years he did not move and the bench did. He served no majority. He made one.