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Posted by on Sep 8, 2010 in Law, Politics, Society | 0 comments

Supreme Court, Not What You Thought: Final Part VI,The Warren Years

When Fred Vinson died in the fall of 1953, with Brown v. Board Of Education still undecided and congress out of session, Earl Warren became the second Chief Justice to reach the position by recess appointment. Not wanting to suffer the fate of George Washington’s recess appointee who went unconfirmed, Warren calculated the impact on southern members of the Senate Judiciary Committee and remained silent on Brown v. Board of Education until his confirmation had been secured.

Born in Los Angeles, Earl Warren would be raised in Bakersfield where the family moved after his father was fired for participating in a strike. His father would later be murdered in a robbery. Warren left Bakersfield to attend UC-Berkeley where he also received his law degree. As a three term district attorney for Alameda County he had a reputation as a tough on crime prosecutor with remarkable administrative skills. His successful prosecutions used techniques, legal at the time, such as coerced confessions and warrantless wiretaps, that the Warren Court would later find unconstitutional.

In 1942, running as a progressive Republican, Warren was elected California’s Governor. His first term was so well received by voters that in his reelection bid in 1946, with the help of cross over voting in the primaries, he secured the nominations of his own Republican Party and those of the Democratic and Progressive Parties. He won with over 90% of the vote and would be California’s only three term governor.

In 1948 the Republicans nominated Warren as Thomas Dewey’s vice presidential running mate. In 1952 he entered the Republican convention as a favorite son candidate, much to the displeasure of his long time political enemy. At the time, the two Republican standouts from California were Warren and Richard M. Nixon. Nixon despised Warren, and the feeling was mutual. Years later, with Nixon’s election to the presidency looming in 1968, Warren tendered his resignation to Lyndon Johnson to prevent Nixon from naming his successor. The resignation was to take effect on the confirmation of the new Chief Justice. To Warren’s disappointment, Johnson’s nomination of Abe Fortas failed, and Nixon, his life long foe, would name his replacement in 1969.

Like Lincoln’s nomination of Salmon Chase 90 years earlier, many believe that Eisenhower’s appointment of Warren as Chief Justice was designed to remove the popular governor from the political arena. What influence Vice President Richard Nixon may have exerted on the decision to clear Warren from the field of presidential contenders is unknown.

Fred Vinson had been a poor administrator as Chief Justice, and Earl Warren inherited a fractious and disagreeable Court, with several Justices refusing to speak to one another. Legally competent, but never mistaken for a constitutional scholar, Warren put his gifts for administration and coalition building to use in uniting the Court around Brown v. Board of Education. Believing that the divisive issue of race relations required Court unanimity, Warren’s opinion was drafted, re-drafted, amended and re-amended repeatedly. Meanwhile, he met personally with other Justices and encouraged them to talk among themselves. After securing eight votes, he personally approached southern Justice Stanley Reed to reach the unanimous opinion he sought. During his 16 years as Chief Justice every civil rights case that came before the Court would be decided unanimously.

With 1956 came Eisenhower’s appointment of liberal constitutional scholar William Brennan to the Court. Brennan was just what the Chief Justice needed. Warren and Brennan met privately before each conference of justices to lay out their strategy for garnering the necessary votes in key cases. For 167 years the Supreme Court had focused largely on issues of property and contract rights, giving short shrift to the Bill of Rights. Two sedition acts had been enforced by the Court, 1798 and 1918, anarchy laws and sodomy laws had been upheld, separate but equal had been the law of the land until Brown, a right to privacy had never been considered, and one-man-one-vote had been tossed out of the Court in the 1940’s as a political issue, not appropriate for the Court. All that was about to change.

Warren believed in law based on justice and fairness. Constitutional analysis often came second for the Chief Justice. That’s what his law clerks, and Justices Brennan, Hugo Black and William O. Douglas, were for. The Bill of Rights, combined with the post-Civil War Fourteenth Amendment’s requirements of due process and equal protection, would be their foundation as the Court transitioned to an era of social justice. It was not always well received. Warren was dogged throughout his leadership on the Court with campaigns for his impeachment, prominently promoted by the John Birch Society.

Dramatic changes issued from the Supreme Court in the due process required in criminal prosecution. An earlier Court, in the Alabama Nine cases, had required court appointed counsel for defendants in death penalty cases. The Warren Court extended the right to all criminal cases both state and federal. State attorneys general and local prosecutors and politicians were aghast at the prospect of finding and paying for the resources to meet the Court’s requirement. The exclusionary rule, keeping illegally obtained evidence out of trial, had previously applied only in federal prosecutions. Warren’s Court extended it to the states under the Fourteenth Amendment. Then that was extended to include the “fruit of the poisonous tree”. Any evidence obtained secondarily, but as a result of illegally obtained evidence, would be excluded.

Coerced confessions fell with the Court’s Miranda decision requiring law enforcement to warn arrestees of their constitutional rights to remain silent and have the assistance of counsel. Warrantless searches and wiretaps were unconstitutional under the Court’s analysis. A few exceptions were carved out, and with them, the “reasonable expectation of privacy” doctrine breathed life. Critics announced that the Court was turning America over to the criminals.

When the State School Superintendent of New York recommended that schools start the day with a prayer, atheist Madeline Murray (O’Hare) brought suit. The Court agreed and drew a line in the sand separating church and state. When another school district tried to cure the problem by making its daily prayer “voluntary”, the Court said no. Nearly two centuries of de facto discrimination against atheists and religious minorities had run up against the Warren Court, and lost. The Court’s free speech rulings would open the doors to full frontal nudity in magazines and end book banning. Another American sedition act would be unthinkable. Warren and his Court were accused of coddling atheists and ruining America’s moral fiber.

While the cases involving civil rights, prosecutorial due process, free speech and church/state separation were constitutionally defensible, the Warren Court seemed to stretch and shape the Constitution like malleable clay in other pronouncements. The State of Connecticut had outlawed the sale of contraceptives within its borders. In Griswold v. Connecticut the Court took up the issue. It found that the Constitution guaranteed American citizens the right to privacy and invalidated Connecticut’s law. The right of privacy is not specifically enumerated in the Constitution. With the decision, state sodomy laws, criminalizing gay sexual conduct, would fall as would most possession of pornography laws. Four years after Warren’s retirement, Nixon appointee Justice Harry Blackmun would rely on the Griswold opinion as the right to privacy was extended to include abortion in Roe v. Wade.

But, the Court’s adoption of one-man-one-vote may have been an even greater stretch than the right to privacy. One-person-one-vote wasn’t even a glimmer in the eyes of America’s founders at the constitutional convention. The only serious dispute in the writing of the Constitution was which white men should be allowed to vote in federal elections. The United States Senate, contrary to one-man-one-vote, was specifically constituted to represent states, not proportional constituencies. Minorities and women had received the right to vote by subsequent constitutional amendment, but nowhere was apportioning districts for state legislatures to be found.

By the early 1960’s, Vermont had one state legislator representing 49 constituents and another representing more than 18,000. Tennessee’s state statute requiring reapportionment every ten years hadn’t been implemented since 1901. Previous apportionment challenges had been denied by the Supreme Court, but America had changed. In the past, rural districts carried inordinate weight compared to poor inner cities. By the time the Warren Court got the issue, America had begun its migration to the suburbs, and a new affluent population felt disenfranchised. The Court responded by finding that equal protection required equal representation.

Earl Warren died in 1974. In 1981 he was posthumously awarded the Presidential Medal of Freedom. Warren remains the most controversial of all of America’s Chief Justices. For good or for ill, you decide, America today is a nation of court appointed counsel, freedom from illegal search, seizure and wiretap, a land where coerced confessions (at least in its criminal justice system) are outlawed, freedom of speech and press receive constitutional protection unheard of before the Warren Court, religious neutrality is required of the government, segregation is a dirty word from America’s dark days, contraception is openly available, LGBT sexual activity is lawful and a movement for equal rights on their behalf has followed, Americans to a great majority believe in, and take pride in, their constitutional right to privacy, and one-man-one-vote has become part of our national lexicon. All of that, and more, is the legacy of the Warren Court.

Those who wish to review the entire series can go to Part V where all the other articles are linked, or you can go here to find the entire series as a single piece.

Sources: Wikipedia;;; judgepedia;;; Constitution of the United States (annotated); and the Supreme Court Historical Society.