Fifties (68 page)

He went to law school and entered the army during World War One, but saw no service. When he returned he began a career in government, first as an assistant to a legislator. Eventually, he became attorney general of the state, during which time he won a reputation for being clean and incorruptible. He was part of the Republican Progressive movement, which was about to blend with the embryonic forces of the New Deal. Subsequently, as governor, he came to be viewed as a model for the best in government in America—intelligent, decent, and fair. His political successor in almost every job, Pat Brown, thought that being governor greatly expanded Warren’s vision, that he had been a good prosecutor and state attorney, but somewhat narrow, with little sense of the complexities of people’s lives: As governor, he grew with the demands of the job. The one blot on his record was his leading role in interning Japanese-Americans in detention camps during World War Two. He was playing to the growing fear of sabotage and the country’s anger against the Japanese, particularly in California. The Japanese-Americans, he said, had not assimilated or embraced American values and traditions. That they had not yet risen up to perform acts of sabotage, he said shortly after Pearl Harbor, was merely proof that they were awaiting some kind of “zero hour” to act. Warren signed the order to evict 110,000 Japanese-Americans from their homes, which others took over at bargain-basement prices. In June 1943, Warren, in his first year as governor of California, told the other American governors, “If the Japs are released, no one will be able to tell a saboteur from any other Jap. We are now producing approximately half of the ships and airplanes on the West Coast. To cripple these industries or the facilities that serve them would be a body blow to the war effort. We don’t want to have a second Pearl Harbor in
California. We don’t propose to have the Japs back in California during this war if there is any lawful means of preventing it.” Later he expressed considerable regret for his actions, although he was somewhat defensive in his memoirs: In 1972, when he was interviewed on the subject, he broke down in tears as he spoke of little children being taken from their homes and schools, and the interview had to be stopped while he recovered his composure. That a record otherwise so admirable had a blot so serious was a reminder, the California writer and professor A. J. Langguth once said, that even in the very best politicians there is always some fatal imperfection.

It was easy to underestimate Warren. He was not particularly articulate, and he prided himself on being homespun. His critics thought him a very ordinary man, just “that big dumb Swede,” in the words of Judge Learned Hand. He may have been born in California, but he looked like his Scandinavian ancestors. When he ran his first statewide race, he mentioned in a speech that he had been born in California. There was no reaction from the crowd. Then he said his father, like so many of them, had come from Iowa. There was, in his words, tumultuous applause. From then on, he included the remark in all his campaign speeches, and he was often regarded as Earl Warren of Iowa.

He was quite comfortable with his own squareness. He hated the pornography cases he had to review, and after reading some of the books and magazines involved, he often needed to get out and take some fresh air. When his law clerks twitted him about this, he would respond, “You boys don’t have any daughters yet.” He was a member of both the Moose and Masons. “Warren’s great strength,” said Justice Potter Stewart years later, “was his simple belief in the things we now laugh at—motherhood, marriage, family and the flag.”

He was above all an excellent listener, and his years as a prosecutor had served him well. He liked to get different people to tell him everything in order to expand his horizons. Edgar Patterson, his driver when he was governor of California, was convinced that
Brown
v.
Board of Education
was the result of Patterson’s own conversations with the governor about what it had been like to grow up black in segregated Louisiana. Warren did not need to dominate in meetings, and he was as comfortable listening to others as he was hearing his own voice. He seemed so relaxed and agreeable that it was easy for new acquaintances to underestimate his ferocious sense of purpose.

John Gunther, one of the very best reporters America ever produced, wrote of him in 1947: “Earl Warren is honest, likeable and
clean; he will never set the world on fire or even make it smoke; he has the limitations of all Americans of his type with little intellectual background, little genuine depth, or coherent political philosophy; a man who has probably never bothered with abstract thought twice in his life; a kindly man with the best of social instincts, stable, and well balanced ...” He was not a man who worried if other people thought they were smarter than he was.

He was also a more astute politician than even his admirers realized. During his rise to power, he constructed his own base as an independent candidate not beholden to the oil interests in Southern California. For party loyalty, he substituted personal connections to the state’s two most important (and quite conservative) publishers—Joe Knowland in Oakland, and Harry Chandler in Los Angeles. At the very least, these friendships helped neutralize papers that might otherwise have rejected his increasingly liberal agenda.

He was a distinguished governor of California. The state was growing by as many as ten thousand new residents a week, and the pressures on the state’s schools, roads, and its water resources were enormous. Facing that challenge had made him tough-minded and pragmatic about government, its limits, and how best it could benefit ordinary people. He was both an optimist and an activist: If he did not exactly bring an ideology to the Court, then he brought the faith of someone who had seen personally what government could and should do to ameliorate the lives of ordinary people.

That the great figures on the bench had so much more judicial experience—Black with sixteen years of service on the Court, Frankfurter and Douglas with fourteen each, and Jackson with twelve—did not daunt him. As he saw it, they knew more about the law, but he knew more about the consequences of the law and its effect on ordinary citizens. His law clerk, Earl Pollock, said years later that there were three things that mattered to Earl Warren: The first was the concept of equality; the second was education; and the third was the right of young people to a decent life. He had spent a lifetime refining his view of the role of government, and he came to the Court ready to implement it.

He made an excellent first impression on his colleagues, who were not by any means easy to impress. Warren, Hugo Black wrote soon after the governor’s arrival, “is a very attractive, fine man. Just a short acquaintance with him explains why it was possible for him to get votes in both parties in California. He is a novice here, of course, but a man with his intelligence should be able to give good service. I am by no means sure that an intelligent man with practiced
hard common sense and integrity like he has is not as good a type to select as could be found in the country.”

At first, because of his small-town manner, most people did not comprehend his intense sense of purpose. “Earl Warren,” Anthony Lewis wrote years later, “was the closest thing the United States has had to a Platonic Guardian, dispensing law from a throne without any sensed limits of power except what was seen as the good of the society. Fortunately, he was a decent, humane, honorable, democratic Guardian.” If Dwight Eisenhower had decided from Earl Warren’s record that the two of them shared similar attitudes and values, then he was wrong. They could not have been more different. They might have come from similar backgrounds, but Eisenhower had long ago removed himself from the complexities of contemporary American life by going off to the military; there he was largely isolated from the changes in the society.

Warren’s greatest skill, perhaps, was his ability to cut to the core of an issue. He immediately came to the conclusion that the Court had to confront
Plessy
directly. Previous cases, he later told the writer Richard Kluger, had all but stripped
Plessy
down and the concept of separate but equal had, in his words, “been so eroded that only the
fact
of segregation itself remained unconsidered. On the merits, the natural, the logical, and practically the only way the case could be decided was clear. The question was how the decision was to be reached.”
Plessy,
he believed, could only exist based on the idea of Negro inferiority. He was not eager to overturn so important a law from the past, but he did not want to continue punishing black children by sending them to inferior schools. That had to end. The law, he said in one meeting and in words noted by Frankfurter, “cannot in ‘this day and age’ set them apart.”

At this point it was all a matter of tactics and strategy. Warren wanted “a minimum of emotion and strife.” He did not want to inflame the South or to divide the country unnecessarily. Justice Tom Clark had pointed out the vulnerability of the Court as an instrument of social policy: “We don’t have money at the Court for an army and we can’t take ads in the newspapers, and we don’t want to go out on a picket line in our robes. We have to convince the nation by force of our opinions.” Warren wanted, if at all possible, to make this a unanimous decision. He wanted the Court to speak with one voice, and he saw it as his job to bring the Court together to balance liberals and conservatives on this issue, to convince those who might otherwise have doubts about whether the Court was exceeding its limits. He shrewdly framed the Court’s internal dialogue so that
anyone who did not go along with him seemed a racist. The job with Frankfurter was to keep him from writing a long concurring opinion that would weaken the force of a single, powerful decision. Jackson, in any case, was likely to write his own opinion. Tom Clark, with roots in Texas and Mississippi, was perceived as a segregationist, but he would, he signaled the new Chief, be willing to end segregation as long as the decision reflected the complexity of the problem ahead, region by region, and was not punitive to the South. Stanley Reed appeared to be the only true segregationist on the Court.

The one jarring moment for Warren came shortly after his arrival in Washington, when he was invited to the White House for a dinner. The President sat the new Chief Justice next to John W. Davis, then, acting as chief counsel for the defendants in the segregation cases. This seating arrangement did not exactly thrill Warren. Davis, the President told Warren, “is a great man.” Later after the dinner was over, Ike took Warren by the arm and walked with him to the sitting room. “These are not bad people,” he said of the Southerners who were defending themselves in the segregation cases. “All they are concerned about is to see that their sweet little girls are not required to sit in schools alongside some big black bucks.” It was the first sign that the President and the Chief Justice were going to part ways on the most important case before the Supreme Court.

The process of bringing this particular court together for a unanimous decision was not an easy one. After the first conference of the judges, on December 13, 1953, Warren moved with great political skill. The stakes were so great that the justices were unusually secretive, in many cases holding back information even from their clerks, lest word leak out of the divisions that existed within. When Frankfurter circulated a memo on the case, he wrote on it, “I need hardly add that the typewriting was done under the condition of strictest security.”

Jackson still needed some convincing. He was scornful of the briefs by the NAACP—they were sociology, not law, he thought. But gradually he was won over in conferences. He accepted the political purpose of a decision; the dilemma, he suggested, was how to “make a judicial decision out of a political conclusion.” But he would go along with the right kind of decision, to make it 8–1. Still, he wanted to write his own concurring opinion. He even prepared a draft, which was one of the more illuminating documents of the time. The time was ripe for an assault on legal segregation, he wrote. The racism of the Nazis had caused a broad and powerful sense of revulsion among the American people, which extended even to our
own treatment of the Japanese-Americans. It was foolish to say that blacks were not ready for greater political freedom, and it was a mistake to cite the Constitution of the United States as the reason to deny those freedoms. It was not the Constitution that had changed in the past sixty years but the blacks themselves; according to Jackson, they had shown a far greater capacity for assimilation than had been thought possible in the days of Plessy. Then—in words that would have greatly offended the South—he touched on the most emotional issue of all: blood, or miscegenation, as it came to be called. The mixing of the races, Jackson said, had already far outstripped the speed of the courts, and “an increasing part of what is called colored population has as much claim to white as to colored blood.”

The possibility that Jackson would offer this separate concurring opinion ended on March 30, when he suffered a major heart attack. Warren now went after Stanley Reed for a unanimous decision. By early December Reed was aware of his increasing isolation, and he started his clerks working on a dissent. He told one of them, John Fassett, that it was likely that he would end up alone. Fassett, who was also from the South, wondered aloud to his boss if a dissent on this issue had any real purpose and whether it might damage the Court as an institution. He also spoke deftly to his superior about the importance of this case to America’s role in a divided world, with the Communists on one side and with much of the world’s population being nonwhite. There was no doubt in Fassett’s mind that Reed took him seriously. By late February, the Court met again in conference and the vote was still eight to one, with Reed in dissent.

Reed was Southern gentry from a border state—Kentucky. He had gone to Yale as an undergraduate and to the University of Virginia and Columbia for his law degree. He was a moderately liberal legislator who helped introduce laws on workmen’s compensation and child labor in the Kentucky legislature; in Washington during the Hoover years, he was a government lawyer at the Federal Farm Board. He also served as counsel to the Reconstruction Finance Corporation, an institution charged with trying to keep banks and businesses afloat during the worst of the Depression. His work so impressed Roosevelt that he was asked to serve as solicitor general. For arguing the early New Deal cases before a hostile Supreme Court, he received Roosevelt’s second Court appointment, and other than Jimmy Byrnes, he was widely regarded as Roosevelt’s most conservative Court appointment. In 1947, the law clerks at the Supreme Court decided to have an office Christmas party—a first—and
they invited everybody connected with the Court, including the janitorial staff, which was mostly black. That being the case, Reed decided he would prefer not to attend, and so the party was shelved.