Against All Reticence:
by D. J. Herda
Anticipated at 90,000 Words
The Book in One Sentence:
How Chief Justice Earl Warren helped return America to political prominence while unveiling the changing climate that would lead to 9/11, and how two other remarkable Justices dealt with the aftermath.
As a young California D.A., Earl Warren knows the ropes. He has seen corruption inside and out of office and knows how it is defeated. In a deft gambit bordering on political ploy, he names himself the state’s first and only “Admiral” in order to clean up the offshore waters of vice and corruption. Later, as governor, he improves the state's public health and prison systems.
After being named to the suddenly vacated position of Chief Justice, Warren--a real stranger in a strange land--presides over his first and most notorious case: Brown v. Board of Education of Topeka, Kan, which would become the very cornerstone of the civil rights movement of the tumultuous Sixties. But it would not be the cornerstone of Warren's career. A presidential assassin's bullet launches the Chief Justice on a life course so perilous and controversial that few could have predicted the outcome—but one did. Earl Warren, himself.
While Warren is busy working to heal a nation’s self-image, another justice is even busier working to heal its wounds. From a housing-development childhood through college and law school, one man stands out as America's first great champion for civil rights.
Barely making ends meet for himself and his family, Thurgood Marshall takes a cut in pay in order to go to work for the NAACP. While there, he is determined to prove a point--that blacks in America are being discriminated against ... and that the discrimination must end.
Risking his very life in a showdown of force, Marshall emerges victorious—in the streets as well as the courtroom—the beginning of a tempestuous career on the Nation’s highest court.
Yet, that same court rarely ran smoothly. One man who would eventually preside over the history-making impeachment hearings of Bill Clinton, William Rehnquist is appointed to the position of Associate Justice in 1971 by Richard M. Nixon. He quickly becomes a counterbalance to the fulcrum of the more liberal leanings of Chief Justices Warren and Burger.
Appointed to the position of Chief Justice by Ronald Reagan in 1986, Rehnquist takes it upon himself to become a catalyst for judicial conservatism—balancing in the process the judicially restrained bloc of justices who include Sandra Day O’Connor, David Souter, and Ruth Bader Ginsburg.
Along the way, Rehnquist sets a new benchmark for Chief Justices, ruling in cases from U. S. v. Ross, in which the court said that Fourth Amendment protection does not extend to cases where probable cause is present, to MGM Studios v. Grokster, in which the court upheld the traditional protection of U. S. copyright laws in the face of burgeoning Internet piracy.
* * *
"D. J. Herda captures Earl Warren
as no one else has ever. I have a firm rule of never
endorsing or commenting on books about my father, but I had to break that
rule after reading this remarkable story. It's accurate, thoughtful,
balanced, and set forth in such a way that it gives an amazingly full
description of my father and his life in a few words. In short, he
would be delighted with it ...." - Judge Earl Warren Jr.
Birth, Death, Life, Love, and Politics
It was 1891, more than a century ago, a remarkable year by anyone's standards. Arthur Conan Doyle had just published The Adventures of Sherlock Holmes. Moby Dick author Herman Melville died at the age of seventy-two. Artist Paul Gauguin moved to Tahiti, where he would paint some of his greatest masterpieces, contract venereal disease, and die a pauper. Composer Gustav Mahler premiered his masterful Symphony No. 1, while Sergei Rachmaninoff finished his first piano concerto. The first wireless radio transmission took place. Widespread famine ripped through Russia. A massive earthquake killed ten thousand people in Japan. And—perhaps most noteworthy of all--Crystal and Methias Warren celebrated the birth of their first son.
Earl Warren was born at home on March 19, 1891, to parents of Scandinavian decent—the father having immigrated from Norway. The house was a humble, five-room wood-frame bungalow at 457 Turner Street, near the Los Angeles railroad depot where Methias worked. Although poor by California standards, the Warrens were no strangers to hard work and physical labor.
The family christened their new-born son simply “Earl.” Years later, the Chief Justice would joke that his parents had been “too poor to afford the luxury of a middle name."
When Warren was five, the family moved to a row house in Sumner, a tiny railroad village two miles from Bakersfield. Back in 1896, Bakersfield was still a frontier town of railroaders, miners, oil workers, construction laborers, Basque sheepherders, gamblers, saloon keepers, promoters, pimps, and prostitutes, who made up nearly 10 percent of the town’s total population of 7,000.
In 1897, Warren entered Washington Grade School. An astute teacher tied his left hand behind his back, making him learn to write right-handed. As a result, for the rest of his life, he did everything left-handed except write.
As the young Earl Warren grew through his teenage years, he took an interest in music. Playing the clarinet with uncanny virtuosity (for years the neighbors thought the Warren’s had an ailing cat), Warren by the age of 15 nonetheless had become one of the youngest members of the Bakersfield Local 263 of the American Federation of Musicians.
While Warren was still in high school, his father took him to hear a memorable Bakersfield lecture by Dr. Russell H. Conwell, a well-known minister and founder of Philadelphia's Temple University. Conwell delivered his famed Acres of Diamonds speech, whose theme was that there is no need to search the world for riches when they abound in your own backyard. As an example, he recounted the tale of a wealthy Persian who had heard from a stranger about vast stores of diamonds to be found in a far-off land. The fortune-seeker sold his land, deserted his family, and spent the rest of his life circling the globe in search of the treasure, only to wind up destitute. Meanwhile, the man who had bought the fortune-seeker’s home was digging a garden in the backyard when he struck the richest diamond treasure on earth.
Warren would recall one day in 1954, "Of all the lectures that I heard in my youth, this one made the greatest impression upon me. The little town where we lived did not appear to offer too many advantages. It was located in an area covered largely by sagebrush and populated mainly by jackrabbits. But my father assured me that Dr. Conwell's diamonds story applied to our little town as well as to the largest and most beautiful cities in America, and that people who were always thinking of fortune hunting in the other parts of the world were actually overlooking golden opportunities at home. He kept this picture before me through all the years I was growing into manhood.
"That little town is now the center of a population of a hundred and fifty thousand. Many who left there in search of oil and gold in Alaska, Mexico, and other distant places returned at a later date empty-handed, only to find that those who had remained had not only struck oil at home but, by harnessing mountain water and irrigating the parched land, had profitably made a veritable Garden of Eden out of the desert."
While an undergraduate at the University of California, Berkeley, Warren heard another eloquent talk given by a famed visiting political figure, 57-year old Senator Robert Marion—“Fighting Bob” La Follette, Sr., the Republican governor of Wisconsin from 1901 to 1906. LaFollette had recently pushed through a direct primary law, tax reform legislation, railroad rate controls, and other liberal measures that came to be known as the "Wisconsin Idea." Warren was immediately taken with the enthusiasm and exuberance of the politician.
In June 1912, Warren worked hard to finish school. Burning with a zeal to turn himself loose on an unsuspecting world, he earned his Bachelor of Letters degree, and in September, he enrolled in the new U. C. law school at Berkeley. After two years of hard work, he received his degree from U. C. Berkeley as a Doctor of Jurisprudence. Far from being the perfect scholar, he wound up much nearer to the bottom of his class than to the top. Similarly, he single-handedly managed to avoid making the Law Review Staff four years running and succeeded in avoiding taking in even a single award or other coveted honor. He had a humbling C average (called “3” back then) and was certainly not voted Lawyer Most Likely to Succeed. Nonetheless, he was admitted to the California State Bar in May 1914—good enough to land himself a job in the small legal department of Associated Oil Company, a move that would later prove propitious.
In August 1917, with the U.S. involved in the Great War in Europe, Warren enlisted in the infantry as a private. At Camp Lewis, Washington, he made the rank of first Sergeant. He became friends with Leo Carillo, the Mexican-American actor, who was descended from California settlers and later played the character of Pancho in the television series, The Cisco Kid. Warren became a bayonet expert and was promoted to Second Lieutenant. Instead of being sent to France, he was sent to Camp MacArthur in Waco, Texas, to teach at the Central Infantry Officers' Training School. He made First Lieutenant before the war ended on November 11, 1918. He was not yet 27.
Out of the service and out of a job, Warren went to work for the Alameda County District Attorney's Office. In 1925, at the age of 34, he was appointed to take over the position of District Attorney to fill a sudden vacancy. Now making more than $7,000 a year--a princely sum that surely justified all of the agonizing years of schooling--he decided the time was right to get married and settle down. He and his fiancée, Nina Palmquist Meyers, were united in an uneventful ceremony on October 14 in the First Baptist Church of Oakland.
In 1926, Warren decided that the future of America was in politics. He ran for and won election to a full term as DA. It was more than he bargained for. He quickly found himself swamped as he prosecuted oil stock swindlers, unscrupulous health insurance promoters, school board embezzlers, cleaning and dyeing racketeers, fraudulent building and loan sharks, lawyers and stockbrokers who stole funds from estates entrusted to them, and assorted confidence artists. He indicted an aircraft manufacturer for making a defective aircraft wing that resulted in the death of a pilot upon takeoff.
He convicted dope peddlers and reached into a sheriff's office to break up a slot-machine and prostitution-protection ring. He was quickly gaining a reputation for being an honest, grim, and relentless DA. The public defender admitted that Warren never brought people into court unless he could prove they were guilty. Nothing troubled him more than the possibility that he might be sending an innocent person to jail. His instructions to his staff were: "Get the facts honestly and don't color them. If the facts are there, you can proceed. If they're not, we don't want them. Be fair, courteous, and never go against your honest instincts."
Perhaps because of this philosophy, Warren's conviction rate had soon shot up to an astonishing 86%--far higher than that of the DA’s offices in San Francisco, Los Angeles, and other areas of the state. Warren kept the office strictly nonpartisan and free of politics. He was a loyal Republican, but in 1924, he voted not for Coolidge but for Progressive Party candidate Bob LaFollette. In 1932 he was named a delegate from California to the national convention that nominated Hoover. For Earl Warren—riding on the high of his own ambitious perseverance—life couldn’t have been sweeter. And then, suddenly, a change swept over California and the Warren household that would set the young DA’s course for life.
On a warm Saturday evening, May 14, 1938, 73-year-old Methias Warren was sitting in the living room of the small frame house at 709 Miles Street in Bakersfield where he had lived for forty-two years. The unkempt house was jammed with old unused furniture that he periodically removed for the renters of his hundred-odd cottages that he had built and owned in East Bakersfield. He had been reading the same local evening newspaper his son used to deliver as a boy, the Bakersfield Californian, and most likely fell asleep. His wife was in Oakland convalescing from a cataract operation. For several years, she had rented an apartment there near the home of their daughter, Ethel Plank.
The screened doors and windows were all open. A tenant came in at 8 p.m. to pay him fifteen dollars rent. He was probably the last person to see Methias Warren alive.
The following morning, as his son was about to speak at a Sunday Masonic breakfast meeting in a Berkeley hotel, he was interrupted by an urgent telephone call from the Bakersfield police. Methias Warren had been savagely bludgeoned to death by an unknown assailant with a foot-long iron pipe, presumably taken from his own back yard, which was strewn with pipes, plumbing, and old stoves. Robbery appeared to have been the motive. The pipe had been found in a neighbor's yard; the victim's broken glasses were on the kitchen floor, and his empty wallet was found in a nearby schoolyard, with the other contents scattered on the street. Two pennies were found in the slain man's pockets.
It was immediately rumored that his was a political murder aimed at his crime-busting son. The DA of Alameda County had no jurisdiction in Kern County, but he immediately dispatched several aides to cooperate with the Bakersfield authorities. On Sunday evening, before boarding a plane for Bakersfield, Warren told reporters sadly, "This is a terrible reason to have to make a trip home."
In his Bakersfield hotel room, Warren later held a press conference. Reporters flocked there from all over the state. Speaking honestly and emotionally about his father, he broke down and sobbed while sitting on the bed. Everyone there was moved. One photographer snapped a picture. Shocked at such insensitivity, the other reporters removed the film from his camera and exposed it to the light. No picture of the scene remained. "We all felt that Warren was such a decent guy that even us bastards wanted to protect him," recollected one photojournalist.
More than a hundred suspects were questioned, and several were held, but all were later released because of lack of evidence.
After months of harrowing investigations, Warren's chief investigator, Oscar Jahnsen, was convinced that he had identified the murderer, a man who had been involved in business dealings with Matt Warren. But before Jahnsen could wrap up the case, overeager local authorities clumsily began to third-degree the suspect without informing him of his rights. When the man's attorney found out, he advised him to remain silent, and no conclusive evidence was found to link him to the murder.
"I blew my top when they blew the case," Jahnsen recollects, still bitter. "The Chief wanted his father's murderer apprehended, but he refused to break any of his own rules or use his own office to convict a guilty man without solid, legally secured evidence. He warned us that we had to follow our strict office rules in investigating any murder. He even said to me later, 'Oscar, you did the right thing.'"
Bakersfield Chief of Police Robert B. Powers, who supervised 25 men working full-time on the case, believed that the culprit was an itinerant prowler. "The motive was robbery, and murder was not deliberately intended," he said for years. Warren quietly accepted the view. Among the suspects was a San Quentin prisoner—convicted of another crime—who could have been in Bakersfield at the time. "I wanted to put a stool pigeon in his cell and plant a dictaphone there," Powers admitted later. But when informed of the plan, Warren flatly rejected it. "We don't break the law when trying to enforce the law," he said.
As difficult as it was to deal with the heartbreak of losing his own father, Warren decided that the best way to respond to the loss was through action. Within months, he filed to become a candidate for the office of Attorney General on the Republican, Democratic, and Progressive tickets—a stroke of political brilliance that paid off handsomely. Warren won the majority of votes cast in the August 1938 primary for all three parties.
For the November general election, the Democrats tried posting a write-in candidate, but Warren captured a million-and-a-half more votes than his nearest competitor. Warren became the only major Republican to survive the 1938 California Democratic rush to the sea that swept Culber L. Olson, an outspoken New Dealer riding on FDR's coattails, to the governor’s mansion. Olsen was elected California's first Democratic governor in 44 years.
On his first day in office, January 2, 1939, Attorney General Earl Warren was tested. He was informed that outgoing Republican Governor Merriam had just appointed his executive secretary as a Superior Court Judge in Warren's own Alameda County, even though this man had been accused of selling pardons to Folsom and San Quentin prisoners. Within an hour, Warren had the alleged culprit in his office. Securing the man's permission to have a stenographer present, he interrogated the new "judge" for two hours. Later, he had him read and sign the transcript. It was used not only to keep the man off the bench but also to help put him behind bars.
Warren's swift cancellation of a last-minute appointment by an outgoing Republican Administration may have troubled some GOP politicians, but the Democratic Los Angeles Daily News crowed: "Official California is in for a good scrubbing behind the ears."
And they were right. In his four years in office, Warren closed down all of the state's dog tracks. He fought to drive out bookies and slot machines. And he won his first ever “naval battle.”
It was waged on land simultaneously against four luxury gambling ships that were anchored off the Southern California coast at Santa Monica and Long Beach. Of the four—the Rex, the Texas, the Tango, and Showboat—the Rex was the largest and operated the most arrogantly, owner Tony Cornero flaunting his activities right beneath the Attorney General’s nose. Cornero, who was reportedly financed by Al Capone;s underworld, claimed that since his ship was more than three miles from shore, it was therefore on the international "high seas" and not subject to California law.
Each day, hundreds, sometimes thousands of customers were water-taxied from shore to ship to play the dice and blackjack tables, roulette wheels, and "one-armed bandits." The floating sports palace was advertised in friendly leading newspapers, on radio and billboards, and even via airplane skywriting. Cash-depleted customers later complained of roughneck treatment whenever they protested that the games had been fixed, but the Rex and the other ships flourished, sucking millions of nontaxable dollars out of the State.
Warren sent Oscar Jahnsen to inform Cornero that he had to leave the CAlifornia area or face legal consequences. He guaranteed him safe conduct. Insisting that he was legally in the clear, Cornero refused to close down his operation.
Angry over Cornero's defiance, Warren uncovered an ancient U.S. Supreme Court decision that empowered a state to curb any "public nuisance" even beyond territorial limits. A second little-used state ruling was interpreted to show that even though the Rex was three miles from shore, it was still anchored within an ancient "Bay" over which California could claim jurisdiction. A third ruling found that water taxis were "public conveyances" requiring licenses to operate, which, of course, the Rex's water launches lacked.
Now convinced that he was operating in legal waters, Warren secured a court order empowering him to raid the floating casino and three other gambling ships simultaneously.
In July of 1939, Warren organized a ramshackle armada consisting of four patrol, fire-fighting, and fishing vessels mobilized from California’s Fish and Game Commission, along with sixteen water taxis. His "crew" consisted of some 300 law-enforcement officers, including some from the Los Angeles County sheriff's and district attorney's offices. Eight sea-going state accountants and lawyers accompanied them to examine the ships’ books.
From his command post on a cliff at the Santa Monica Beach Club, the "Admiral" observed the Rex through telescope and field glasses, communicating his orders via shortwave radiophones. Three of the ships surrendered within a few hours, but the Rex chose to resist. At 8 p.m. on July 29, Warren issued the command for his armada to attack.
Suddenly a snag arose. Someone—probably one of Warren’s less reliable officers—alerted Cornero to the planned invasion. The Rex's crew drove back the invaders with streaming fire hoses and improvised an iron gate to prevent anyone from boarding. Undaunted, Warren ordered his commandos to blockade the ship. "If they won't let us on, we won't let anybody off," reasoned the naval commander from shore. Warren knew that most of the ship’s customers would have to get to work the next morning, and he speculated that quite a few married men—and more than a couple of women—would have some explaining to do when they failed to return to their spouses that night.
The 650 stranded patrons threatened reprisals against the tormented Cornero. Finally, Warren permitted them to return to shore but continued blockading the Rex to prevent it from fleeing.
The great California naval battle had now begun generating national headlines while the House of Representatives quickly passed into law a California-sponsored bill making the operation of a gambling ship off any coast of the United States a federal offense. But it was not until Cornero's patience and food supplies were exhausted that he finally hoisted the white flag and surrendered more than a week later.
Climbing into the patrol cutter, the triumphant Warren led his seagoing posse and reserve land troops aboard the Rex. "It was like General Grant accepting Robert E. Lee's sword in surrender," recalled Oscar Jahnsen.
When the handcuffed Cornero was booked at the nearby Santa Monica police headquarters, he was asked his occupation. "Mariner, Goddammit!" he growled.
The vanquished Cornero threatened to sue Warren for "piracy on the high seas." But his threats proved as empty as many of his patrons' pockets. Had his defense been carried out, Earl Warren would have been the only future Chief Justice in American history ever accused of being a pirate.
During the raid, Warren's men seized dozens of sacks of gambling money that was deposited in the state treasury. As the final indignity, Cornero was ordered to reimburse the State of California the $13,200 it had expended in raiding his ship and to pay the State Railroad Commission a negotiated $7,500 penalty for operating unlicensed water-taxi "public conveyances" plus $4,200 in taxes. Jahnsen gleefully led a demolition crew aboard the Rex, carrying crowbars and axes to destroy the ship's hundred dice and blackjack tables, slot machines, and roulette wheels.
Earl Warren made national headlines. It was only the beginning. As he gained newfound confidence in his powers, he began to modernize and improve law enforcement practices throughout the state. He investigated charges of mistreatment in public and private mental institutions, orphanages, and nursing homes; opposed police troopers using unmarked cars; fought for the right of black prizefighters to box in a Hollywood stadium; and forced exporters to pay their lawful share of sales taxes.
In a case before the U.S. Court of Claims, he won $7 million for Native Americans under "lost" 1851-1852 treaties. Ironically, the future chief justice represented California in the U.S. Supreme Court, arguing before Justices Black and Douglas, his colleagues-to-be in the not-too-distant future. In recognition of his work, he was elected president of the National Association of Attorneys General.
By 1941, the relationship between Attorney General Warren and California Governor Olson—never very solid—deteriorated to the point of open warfare. Warren, a liberal Republican, believed that Olson wasn’t doing enough to promote the kinds of social changes that his own Democratic president, FDR, was advocating. On April 9, 1942, Warren announced his candidacy for governor. No one, he felt, could run the state any worse than Olson.
Taking his cue from his successful run for Attorney General, Warren paid the $250 filing fee and formally cross-filed for governor on both the Republican and the Democratic tickets. He won the Republican primary, garnering 404,000 votes to 513,000 for Olson’s Democratic primary bid. The closeness of the numbers alarmed Olson, who picked up the tempo of his attacks against Warren.
The governor called the Attorney General “a political eunuch, a political hypocrite, a puppet pretender not fit or competent to be governor." Warren saw a growing split within the Democratic ranks. Roosevelt offered only tepid support for Olson.
In February 1942, FDR issued Executive Order 9066, which authorized the resettlement of Japanese-Americans into concentration camps. Warren—attempting to play to both conservative Republicans and liberal Democrats with his support for the bill—later regretted it.
Throughout the campaign, the increasingly confident Olson delivered speeches by radio. Warren, on the other hand, stumped the state, driving in an open car, often with his driver and close friend—movie actor Leo Carillo—at his side. Carillo told jokes and signed autographs. Warren also threw his three daughters into the campaign whenever possible. Nothing appealed to a family of voters more than the family man image Warren had fostered over the years.
Meanwhile, Olson attacked Warren for upholding the California law that required schoolchildren to salute the flag or be expelled as delinquents. Warren coolly retorted that the Supreme Court had upheld the law and that he was merely enforcing the law as Attorney General.
On election day, November 3, 1942, Warren went to the polls early. So did most other Californians. He ended up sweeping 57 of 58 counties, defeating Olson by more than 342,000 votes (1,275,287 - 932,995) in a shocking upset. Olson later commented about the victor. “Warren is the slickest politician I ever met."
In 1944, Wendell Wilkie asked Warren to run on the Republican ticked as Vice President, but Warren shrewdly declined. FDR was running for an unprecedented fourth term, and Warren knew he was a Democratic shoe-in.
The following January, Warren urged the state legislature to approve a comprehensive prepaid medical and hospital care program for all California workers and their families. It would have been the first in the nation, to be financed by a 3% payroll tax. But the bill ran into stiff opposition by the strength of the medical lobby, which termed it “socialism.” The bill failed to pass. But that was only the beginning of the governor’s fight for social justice.
Despite dogged opposition, Warren managed to desegregate the California National Guard. He fought and won a battle to improve California highways by inaugurating a ten-year road-building program, paid for by a gasoline tax. In accomplishing both goals, the governor made some loyal friends ... and some powerful transportation industry enemies.
In April 1946, Warren announced for a second gubernatorial term. This time, he won both the Republican and Democratic primaries and emerged as both parties’ candidate, then went on to win the election.
That same year, Warren threw his support for the reelection to congress of L.A.’s Twelfth Congressional District representative, Jerry Voorhis, who had backed Warren on his health insurance proposal and the battle with the oil and trucking industries. Voorhis’ Republican opponent, a lawyer named Richard Nixon, asked for Warren's support. Warren refused. Nixon upset Voorhis by using his now-famous smear tactics and demagoguery. The antipathy between Warren and Nixon grew into disdain. It was a boiling caldron that would last throughout both men’s lifetimes, growing deeper by the year.
If any single word marked the tenure of Warren’s second term in the state house, it was “growth.” California grew in stature, grew in the number of social programs instituted for the benefit of its people, and grew in population: it had quickly leaped to become the nation’s most populous state.
In 1947, Warren controlled the California delegation at the National Republican convention as the state’s favorite son. He accepted an offer to run as the vice-presidential mate to Thomas Dewey in 1948. Warren proved himself a shrewd and loyal campaigner, often more effective on the stump than Dewey, himself, who arrogantly predicted a victory of political dark horse Harry S Truman. Although Warren worked tirelessly, handling both the job of governor and that of ambitious candidate, it proved to be a much tighter campaign than Dewey was prepared to admit. Right up until the day after the election, Dewey bragged about “burying” the hapless Truman. Even the nation’s newspapers bought into the story, and one—the Chicago Tribune, went so far as to declare Dewey the winner on the front page. One of the most famous political photographs of all time showed a jubilant Truman holding up a copy of the Tribune headline: "Dewey Beats Truman."
Dewey was crushed, his political career crumbling around him. Warren, however, had other things on his mind. The California governor had met Truman in the 1930s at a national Masonic convention. The two later joined in several Senate hearings. They liked each other from the start.
In 1950, Warren announced for a third term as governor. Conservatives wanted him to run for the U.S. Senate against liberal congresswoman Helen Gahagan Douglas in order to get the liberal governor out of Sacramento. Warren might well have done so and probably won, except that he realized he wielded more power as a veteran governor than he could ever have as a freshman senator.
Instead, Douglas’ opponent turned out to be none other than Richard Milhous Nixon, who won after running a vicious smear campaign, referring to a secret "slush fund," which later he defended in the "Checkers" speech. Nixon attacked Douglas's patriotism, calling her the "Pink Lady."
Warren's democratic opponent in the gubernatorial race was James Roosevelt, FDR's son, a prospect that did anything but delight the sitting governor. Throughout the campaign, recently widowed first lady, Eleanor, gave speeches on her son’s behalf and stumped as hard as she ever had for her own husband. She expressed fury at Truman for failing to support her son’s bid because of the Democratic president’s respect for Warren.
On November 7, 1950, Warren trounced Roosevelt in the election, winning all 58 counties, the greatest electoral victory in California’s history. In an ironic twist of fate, Roosevelt was later elected to Congress and became one of the Warren Court’s most vociferous supporters.
Throughout all of the political maneuvering, the Warrens remained doting, loving parents. Each year, Christmas was a Dickensian affair, complete with ribbons and bows and candles, bells, and twinkling lights. The Warrens often shared their joy of life with others, including total strangers down on their luck. A reporter once asked Warren why his home phone number was still listed in the directory. "With three teenage daughters, I have no choice," he chuckled.
Warren's concern for children was real. He created 300 child-care centers operated by the state’s Department of Education for the benefit of the children of working mothers. The centers were mostly housed in public schools and administered by local boards of education in 51 school districts. The cost was met by the state and by parental fees of two to six dollars a week per child. He also founded the California Youth Authority as a juvenile’s alternative to prison.
In July 1951, a Gallup Poll taken randomly reported that, if the election were held that day, Warren would defeat President Truman by a 52 - 39 margin. Four months later, after agonizing over the prospect with friends, colleagues, and family, Warren announced that he would run for the Republican presidential nomination against conservative Ohio Republican Robert Taft. In a surprising move, Nixon volunteered to support Warren, pledging to campaign for governor in the coming months.
As fate unfolded, Warren attended a pre-Christmas Republican State Committee dinner in San Diego in 1951. He took suddenly ill with severe intestinal cramping and was rushed to the hospital. There, tests revealed a malignancy, and surgeons were forced to remove much of Warren’s intestine. He remained in serious condition for two weeks.
In the meantime, Taft’s supporters began spreading word that Warren was dying of cancer. Others said that, while golfing, they had seen Warren receive a golf bag full of $92,000 in bribery money, even though Warren had been in the hospital on the day of the report.
On January 7, 1952, a newcomer to the political arena—a World War II war hero and retired U.S. Army general—announced that he was going to run for the Republican presidential nomination. Dwight D. Eisenhower had an impeccable war record and was extremely popular with the American people—something Harry Truman was increasingly not.
The Republican Party—anxious to find a solid candidate whom they could pit against a decidedly beatable Democratic incumbent—had encouraged Eisenhower to enter the primary race and convinced him that he had a good chance of winning.
Throughout the California primary, Nixon publicly pledged his support for Warren, while behind the scenes, he was secretly campaigning for Ike. Despite Nixon’s best efforts, Warren carried the nomination in California.
When the California delegation left by train for the Republican convention in Chicago, Nixon was aboard. But he slipped off at the last stop before their destination and jumped into a waiting car to beat the train to the city.
After finally arriving at Union Station, Warren registered at his hotel before paying a courtesy call on Eisenhower. When the door to Eisenhower’s suite opened, the doorkeeper was Nixon's assistant, Murray Chotiner.
On the floor the next day, the first vote was surprisingly close: Ike received 595 to Taft’s 500, Warren’s 81, Stassen’s 20, and MacArthur’s 10. Once Stassen announced he was throwing his votes to Eisenhower, it was all over. Before long, Warren learned that Ike had chosen as a running mate Richard M. Nixon. Nixon appeared on the stage, grinning from ear to ear. He had leap-frogged to national prominence after only six brief years in public office.
Despite his disappointment, Warren campaigned doggedly for the Eisenhower ticked. He was disappointed by the candidates failure to defend his old colleague and benefactor, General George C. Marshall, against Senator McCarthy's muckraking charges of treason, and Ike's habit of mangling syntax grated on Warren’s nerves. But, nevertheless, he supported Ike both publicly and privately over Democratic Party VP candidate, Adlai E. Stevenson.
Back in California, the political pot was heating up. President Truman said that the Republican party had turned away from the policies of their great liberal governor and chose another Californian "... who is not worthy to lace his shoes ...." When later asked by reporters to whom he had referred, the candid Truman retorted, "Nixon! He's a no-good, lying son-of-a-bitch!"
When Stevenson came to California to campaign, Warren arranged for him to speak on the Capitol steps and even to use his office, whenever it was available, saying "No votes were ever lost by being courteous." Warren was determined not to stoop to the scurrilous allegations being bandied about by some Republicans, including Nixon, who called Truman, Stevenson, and Secretary of State Dean Acheson traitors--for which none of them ever forgave him. Warren took another tack, focusing instead on Ike's virtues. By the time Eisenhower had won the election, Warren was nearly out of office. He would be almost 70 in 1960, too old to campaign and win, he believed. If he’d stooped at the National Convention to back-door dealing, as had Nixon, Warren would likely have been named the Republican vice-presidential candidate in exchange for swinging California’s 70 electoral votes to Eisenhower—such as the vagaries of national politics.
But Eisenhower liked Warren and knew that he wanted him in his administration. He offered the California governor the job of solicitor general, mentioning that he would consider Warren for the next opening on the U.S. Supreme Court. Warren accepted the appointment when, suddenly, word was received that Chief Justice Frederick Moore Vinson, who had served 7 lackluster years in the position, died. Truman had appointed his old friend and congressman to the court to bring harmony to the feuding justices. But Vinson failed miserably in getting the justices to agree on anything.
As Eisenhower struggled to come to grips with Vinson’s replacement, his conservative older brother, Edgar, an attorney in Tacoma, WA, warned the president that Warren was a “leftist tool.” Ike’s more liberal younger brother, then president of Pennsylvania State University, admonished his brother that Warren was a spokesman for right-wing reactionaries. That cinched it for Ike. He was searching for a moderate to take control of the Court—someone neither on the far left or right. If Warren could be considered liberal and conservative at the same time, he was the man for the job. Besides, Warren’s image for the position was perfect. He was inscrutably honest and had an impeccable political record. Few people could doubt his abilities. He was popular, unbridled by past scandals, and relatively progressive without going overboard. As a bonus, Ike felt that Warren could be depended not to rock the political boat.
But the icing on the cake came from an unlikely source when Nixon urged Ike to give Warren the appointment. Always scheming deviously, the VP knew that, with Warren out of California politics, his own cronies could be counted on to fill political appointments. Nixon also pointed out to Eisenhower that appointing Warren Chief Justice would eliminate him as a potential residential candidate in 1956. The only real limitation was that Warren had no judicial experience, but neither had John Marshall, Roger Taney, or Charles Evans Hughes—all of whom went on to become powerful Chief Justices.
Attorney General Brownell flew to California September 27, 1953 and offered the job to Warren if he could take the seat a week later. Warren quickly accepted. The timing seemed ideal. Since the Senate was not in session, the appointment was an "interim appointment," which meant that the Senate would consider the nomination when it next met, giving Warren time to learn his way around before having to face a Senatorial committee.
On October 4, 1953, the Warrens flew to Washington. On October 5, 1953, at 10:00 am, the new Chief Justice arrived at the Supreme Court building. He entered the rear of the building in a chauffeured limousine, but, keeping promises to photographers, went out to the front of the building and posed and waved for photographs under the marble arches. The Constitutional Oath was administered by Justice Hugo Black shortly before noon. Precisely at noon, Marshall pounded the gavel, and the eight justices took their seats. Justice Black announced the death of Vinson and that there would be a memorial service later in the term. Then the Clerk administered the Judicial Oath to the incoming Chief Justice. Marshall then led the new Chief Justice to the center seat. The neophyte justice tripped over the long robe, which had been borrowed. "Yes,” Warren joked later, “I literally stumbled into the Court." Shortly thereafter, the Court adjourned until the following Monday.
The Court members, except for Warren, had been appointed either by FDR or Truman. They ranged from very liberal to very conservative, and open bickering—and worse—pervaded their sessions.
One of the Court’s two diehard liberals was Hugo Black, the first of Roosevelt’s New Deal nominees, an ex-Ku Klux Klansman, former U.S. Senator from Alabama, and First Amendment advocate. The other was William O. Douglas, a former Yale law professor, chairman of the Securities and Exchange Commission, and an ardent environmentalist.
The three moderates included Robert J. Jackson, FDR’s former Attorney General and IRS general counsel; Tom C. Clark, ex-Attorney General and poker-playing pal of Truman; and Sherman Minton, a dour, undistinguished former 7th Circuit U.S. Court of Appeals jurist and senator from Indiana.
The three conservatives were: Stanley Reed, an aging Kentucky former solicitor general and New Dealer who had moved sharply to the right; Harold H. Burton, a plodding former Republican senator from Ohio and the ex-mayor of Cleveland; and the brilliant Felix Frankfurter, formerly an ultraliberal Harvard law professor and founder of the ACLU who had grown increasingly conservative on the Court.
Despite their egos and disparate backgrounds, Warren somehow persuaded all of the Justices to vote unanimously in what would become the Warren Court’s most famous and far-reaching decision. It involved forced school segregation. It was the case, Brown v Board of Education of Topeka, Kansas.
By the mid-1950s, seventeen states—most in the South and Southwest—had developed racially separate systems of public education. White students went to white schools; black students went to black schools. Several states went even further in openly discriminating against blacks in the classroom. There were no laws specifically allowing them to do so, but there were none forbidding them, either.
Then, in 1953, a black child named Linda Brown went to register in an all-white school only four blocks from her home in Topeka, Kansas. Instead of being admitted, she was turned down and forced to attend an all-black school twenty blocks away.
The Brown family decided to sue the Topeka Board of Education, and the Supreme Court accepted the case. As the moment for the Court's ruling on the matter drew close, an anxious nation awaited the decision. Would the Court vote to maintain the traditional "separate but equal" doctrine, which had stood for nearly a century, or would it strike down the discriminatory laws and allow Linda Brown—and all other black students to come after her—to attend school with whites?
The answer came on May 17, 1954. As the Justices marched into the courtroom, Warren recalled, there was a tension he had not seen before or since. When Warren announced that he was about to read the opinion of the Court, the spectators in the courtroom began squirming in their seats. Everyone's eyes were glued to the bench. Few people could have predicted what they were about to hear.
Midway through the decision came the most dramatic part of the Court's findings:
“We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities? We unanimously believe that it does ... In the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.”
In a matter of moments, the Warren Court had dismantled the framework for discrimination that had existed throughout the South for more than a century. After decades of black versus white, of segregation versus integration, the Court had finally come down on the side of integration. The fact that the decision was unanimous was even more remarkable. Three of the Justices deciding the case had been born and raised in the South—Hugo L. Black of Alabama, Stanley F. Reed of Kentucky, and Tom C. Clark of Texas.
Despite their backgrounds, the three southern Justices were able to put aside their prejudices and vote their conscience, leading Warren to comment years later, “The real credit for achieving unanimity [in the Brown case], in my opinion, should go to the three Justices who were born and reared in that part of the nation where segregation was a way of life and where everyone knew the greatest emotional opposition to the decision would be forthcoming ... The others of us ... were not in danger of being faced with animosity and harassment in our home states because of centuries-old patterns of life.”
Shortly after the decision, several southern congressmen introduced into the Congressional Record the so-called Southern Manifesto. In it, they pledged to fight Brown in an attempt to overturn the Court's ruling. The fact that they failed to do so was yet one more tribute to the Court's wisdom in declaring once and for all that racial segregation had no place in America.
The Warren Court quickly developed a reputation for favoring individual rights against the government; for advocating the right to personal privacy; and for protecting freedom of speech, no matter how scurrilous or unpopular. What Eisenhower had felt would be a more moderate, “quiet Court” had suddenly grown to become quite vocal and more than a little liberal. Years later, Ike would tell a biographer that appointing Warren to the position of Chief Justice had been "one of the two biggest mistakes I made in my Administration." He never said what the other was.
In the nearly two decades of judicial work that followed Brown, Warren oversaw many other important cases, yet the event for which he is most tied to controversy had nothing to do with his work on the bench.
It was Friday, November 22, 1963. The Supreme Court was holding one of its regular meetings. The Justices had just returned to their chambers from lunch when, around 1:30, Warren received a note from his secretary. President John F. Kennedy had been shot while riding in a motorcade in Dallas; it was not known how badly he was injured.
Warren quickly called a recess. An hour later, the news filled the air: the president was dead. Within minutes of the crime, Lee Harvey Oswald was apprehended and charged with murder. The country spiraled into chaos. During the next few days, Warren—along with the rest of the nation—listened to the television reports and read the newspaper accounts of the assassination.
Shortly after, while being transferred to jail, Oswald was shot and killed by a man named Jack Ruby. Suddenly, rumors of conspiracy were everywhere: Oswald had been hired by the FBI to kill Kennedy. Oswald had been paid by the Soviet Union to commit the crime. Fidel Castro had hired Oswald and a team of other sharpshooters to carry out the assassination. And Ruby had been hired to kill Oswald so the president's assassin wouldn't talk.
Finally, Lyndon Johnson, who took the mantle of oath following Kennedy's assassination, called Warren to the White House. Johnson was forming a commission to investigate Kennedy's murder and to settle the question of whether or not Oswald had acted alone in killing Kennedy. He wanted Warren to head the commission. Johnson told Warren that there were serious rumors circulating throughout the world. The situation was getting out of hand. Some people even suggested that, unless the truth about the assassination was established, the incident might lead to war—nuclear war with the Soviet Union. Johnson told Warren that a nuclear strike against the United States could result in killing 40 million innocent Americans.
Warren was hesitant. He was, after all, a Supreme Court Justice—a sitting Justice. What right did he have to take charge of a civilian commission? Yes, he had an investigative background. He knew how to organize, how to delegate, and how to get things done. But that wasn’t where his heart was. That wasn’t how he saw himself serving the American people, the American nation.
Warren told Johnson that he would consider the matter at the same time he was trying to come up with a polite way of turning the president down.
But as the minutes slipped into hours and one day slid into the next, he realized something he hadn’t before. If he turned Johnson down, who would better be equipped to pick up the gauntlet? Not that Warren believed in his own invincibility. He simply could not envision anyone whom the president could contact to pull the job off any better. And, after all, if the Chief Justice of the United States Supreme Court were heading the commission, wouldn’t its findings be tantamount to the Holy Grail? Warren knew from the start that the person charged with overseeing the commission would need to be strong enough to face a firestorm of controversy. He would have to be equipped with tremendous internal fortitude and be prepared to brandish an impeccably untarnished political record to withstand those critics, no matter what the commission found, for they would surely be there, waiting to strike.
With all of that racing through his mind, Warren reluctantly telephoned the president and accepted the position of chairman of the commission.
Within months, the Warren Commission, as the press soon dubbed it, had gathered some 2,300 FBI reports totaling 25,400 pages of notes and another 800 Secret Service reports totaling 4,600 pages. In addition, the commission interviewed 94 witnesses and took 395 depositions, 61 sworn affidavits, and 2 statements. Everyone who claimed to have any information at all about the assassination was interviewed; no one was overlooked.
Finally, on September 24, 1964, the commission issued its findings in an 888-page report. As the nation trembled at the prospects and the press conjectured at the findings, Warren spoke out. The conclusion: There had been no conspiracy. There had been no foreign involvement, no Mafia connection, no government cover-up. Lee Harvey Oswald, an emotionally disturbed loner, had acted on his own to take Kennedy's life. Ruby had slain Oswald out of contempt for the man’s insensitivity and his disregard for the nation’s political leaders. Warren and the other members of the commission had no doubt about it.
Even before the commission released its report, large numbers of people began questioning its accuracy. Many Americans still believed that the assassination was part of a larger plot. Some even went so far as to accuse Warren and his commission of withholding valuable evidence linking the killing to a conspiracy.
To Warren, the Kennedy assassination was just one more in a tragic series of slayings of presidents, from Abraham Lincoln and James A. Garfield to William McKinley. Several others had survived attempts on their lives, including Theodore Roosevelt, Franklin Delano Roosevelt, and Harry S Truman. In society, assassinations happen. In an open society, they happen all too often and often with more tragic ramifications than its citizens care to admit. But Warren had to admit it. Warren had the truth.
In his book--The Memoirs of Earl Warren--Warren planned to discuss at length the Kennedy assassination and the Warren Commission's findings. It would have been a revealing chapter. Unfortunately, Warren was never able to complete it. He died peacefully in his sleep on July 9, 1974.
It was a sad and ironic end to a controversial man of both wisdom and wit, but Warren's death did not dim the memory of the man and his deeds. Nor did it squelch one undeniable fact about Warren’s life.
The Supreme Court Justice that some call the greatest since Oliver Wendell Holmes--and whom others insist was even greater--not only observed the changing face of politics and the effects it would have on society in America. Investigations into the question show that Warren actually foresaw the outcome. Realizing that the American way of life as played out on the world stage would in the not-too-distant future be forced to undergo radical change, he understood that the energies required to effect such a startling metamorphosis would be awesome in their demands.
Earl Warren recognized that the changing face of America would one day be the nation's greatest call to arms. He realized that the apathies and the apologetics playing out in the town halls and the homes across America would one day come back to haunt a nation. He knew from his observations, from his years of investigations into the darkest underbellies of the American nation, relying upon his remarkable faculty for deductive reasoning, that dark days were ahead. Before his untimely death, he had hoped to spearhead a drive to awaken a reticent society.
Still, not even Warren could have understood that the changing face of an increasingly apathetic and lethargic nation would once again bring the United States to the brink of nuclear war--this time with the maniacal proponents of fanatical Islam, with those obsessed with demonizing and debilitating, with destabilizing and eventually destroying the entire Western world.
But he could have seen the coming split between liberals and conservatives; the breakdown of the American family; the slow and painful demise of America's educational institutions; the erosion of the nation's legal system; the pending downfall of the Soviet Union and collapse of socialism around the world; and the mounting growth of dissatisfaction in developing nations that would one day result in unimaginable tragedy.
He could have seen all that ... and he did.
Today, high up on the facade of the beaming Supreme Court building in Washington, four words are chiseled in stone: 'Equal Justice Under Law.' To a Scandinavian immigrant's son who became an embattled judge, this was no empty phrase or architectural gimmickry. Others—including perhaps the majority of today's Supreme Court Justices—tend to emphasize the word “Law.” Earl Warren stressed the word, “Equal."
At a 1989 dinner in San Francisco commemorating the 20th anniversary of Warren’s retirement, U.S. Supreme Court Justice William Brennan hailed the Chief Justice under whom he had served for 13 years as a man of "absolutely granite integrity and fairness."
Nearly everybody agreed. But few people in history can recall a more controversial Chief Justice of the United States. And that’s exactly how Warren would have wanted it.
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