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How a California justice shaped our nation's story 
By Jim Newton
The realm of judicial biography can be a difficult one. U.S. Supreme Court justices, many of them, live monkish lives on the edge of great events, exerting profound influence across many years and issues but often from the periphery, not the center. To take just one example, the Court under the leadership of Roger Taney infamously attempted to patch together a national framework for the preservation of slavery in the years leading up to the Civil War. More than one hundred years later, Taney's place in American history remains defined by Dred Scott v. Sandford, which overruled the Missouri Compromise and declared Scott a slave despite his residency in a free state. Taney's contribution is rightly considered a blight to the Court and a propellant toward America's most searing war. But even there, the Court and its chief justice played their role on the outskirts of the great debates of that period, with Abraham Lincoln in the center chair and those immediately around him in the lead supporting roles, so indelibly captured in Doris Kearns Goodwin's Team of Rivals. That creates an awkward vantage point from the perspective of a storyteller, and it makes observation of the Court subtle. Honest, effective writing about justices requires recognition that while the Court makes grand policy, it does so in the course of deciding cases, not writing laws or ordering armies into the field. Judicial biography is further complicated in some instances by the justices themselves. As lifetime appointees, they have a tendency to go to the Court and then largely disappear from public view. They are public officials, yes, but of the type that can steer a shopping cart through a Washington grocery store and barely attract a nod. Their deliberations are private and difficult to penetrate; they affect much but say little. Some justices simply defy the proposition that understanding a life helps to illustrate a career. In modern times, William O. Douglas forms one such paradox. Douglas laid down some of the great markers of American civil liberties — his defenses of speech and protest are ringing rejoinders of a happily disputatious society; his examination of the right of privacy stands as a hallmark of libertarianism that now finds itself underpinning Constitutionally protected abortion. But Douglas himself was a cranky, unpleasant man, cycling through marriages, contemptuous of his clerks, neglectful of those around him. As a result, it can be jarring to attempt to reconcile his Constitutional genius with his personal ineptness, though a few brave biographers have attempted just that. None of that inhibits understanding of one of the twentieth century's most important justices, arguably its most significant chief ever — Earl Warren, the subject of my new biography, Justice for All: Earl Warren and the Nation He Made. The book represents the culmination of nearly five years of research and writing — and an even longer rumination on Warren's work. In a sense, I began my work on Warren as a reporter for the Atlanta Constitution in the late 1980s, when I covered Mayor Andrew Young and, by extension, the civil rights legacy that Warren helped create and that Young upheld. I did not contemplate a book in those days, however. I did not allow myself to consider that possibility until I became an editor for the Los Angeles Times in 2001 and discovered the richness of Warren's pre-Court life, his rise to power and his governance of California. After some preliminary research revealed the scope of that story, I became convinced that a full biography, one that explained his growth from rather conventional prosecutor to extraordinary chief justice was a worthy, important undertaking — and a timely one, too, given the nation's present preoccupation with civil liberties and their place in a nervous society. I soon discovered what a large life I had elected to measure. Warren was 62-years-old when he arrived at the Court in 1953. Unlike the present inhabitants of the Court, Warren did not come to the office as a professional judge. Rather, he already had assembled a huge, public and important life — as a prosecutor, California attorney general and California governor. Few politicians had a record to compare. Elected governor in 1942 by offing an incumbent Democrat, Warren went on to be elected two more times to the governorship. In 1946, Warren had achieved what by today's standards can only be considered a near-impossibility: A lifelong Republican, he won his party's nomination for the governorship that year — no surprise — but he also won the nomination of California's Democrats. No person has ever come close again. In 1950, he beat Jimmy Roosevelt, son of FDR, by more than a million votes. In his years as governor, Warren presided over California's extraordinary expansion. He used to reflect that it was his job to make room for 10,000 migrants arriving every Monday morning. It was hard, he conceded, "but it can be thrilling." By the time he left office, Warren had absorbed millions of new residents with dazzling speed. A state that employed 24,000 people when he became governor had 56,545 when he left. Wages in many industries doubled and then doubled again. He inherited a deficit and left a balanced budget. Nationally, Warren also was a known figure. He sought the Republican nomination for president in 1944, 1948 and 1952. In 1948, he was named to serve as Thomas Dewey's vice presidential running mate on the ticket that lost to Harry S. Truman (The Chicago Tribune pronounced that "Dewey Defeats Truman," but that was the only place where the ticket won). That defeat, however, did little to dim Warren's luster, and it was natural that Warren would eventually find himself a place in Washington. President Eisenhower's 1952 victory, which ended generations of Democratic rule, cleared the way. With such a history of winning and wielding political power, Warren did not shrink from putting the Supreme Court at the center of national affairs. Most famously, he inherited a divided and conflicted Court in the matter of Brown v. Board of Education. Under his predecessor, the Court had held Brown over for a term, struggling to find a way to overrule segregation without damaging the Court's reliance on precedent. Warren found such a way, and, with the skills of a seasoned politician, delivered a unanimous Court on behalf of striking segregation in public schools — and did so in his first term as Chief Justice. That ruling did not end segregation immediately, but it gave life to the civil rights movement and established legal and moral underpinnings for the long march against one of America's most disreputable institutions. That was just the beginning of Warren's long and effective command of the Court, over which he presided until 1969. Not all of his decisions were popular — many were not — and "Impeach Earl Warren" became the buzz phrase of the John Birch Society in the 1960s. But his decisions spoke to his personality and humanity, for better and for worse, and honest appraisal of Warren's record on the bench reveals a far more moderate and complex man than his critics are inclined to admit. Warren had come to public life as a prosecutor working in a Progressive Republican tradition, and those early experiences shaped his jurisprudence. He was appalled by crime and vice — both robbed working people of their savings and dignity — and he'd seen too much unprofessional police and trial work not to be offended by it. After some initial hesitation, Warren took aim at shoddy police practices from the bench and exerted what power he had to check them, motivated not by a desire to cuff the police but by one to improve their professionalism. That campaign crested in one of his most famous contributions to American law and culture, the 1966 ruling in Miranda that gave suspects their now-universally known "right to remain silent." In the area of pornography, Warren, again mindful of his own experience, consistently resisted the idea that the First Amendment allowed pornographers to go about their business. He was disgusted by smut and furious at the idea that his daughters might be exposed to such filth. Similarly, Warren was a great believer in dissent and in the idea that the Constitution protected protest. But he also was a patriot, and when a young man named David Paul O'Brien burned his draft card in Boston to protest the Vietnam War, Warren voted to uphold O'Brien's conviction. O'Brien was not Warren's finest moment, but it is of a piece with his long devotion to the idea that the Supreme Court exists to protect the basic principles of American society. In general, that devotion served Warren well. He understood well before much of the nation that racial segregation was fundamentally unfair for what it did to children. It troubled him to imagine boys and girls reciting government-written prayers in schools. He understood the burdens of the poor, and could not abide the idea that the rich would understand their rights and be represented by lawyers when the poor would not. And, as a man returned over and over to office through the ballot box, he had an abiding faith in free and fair elections, and thus did not hesitate to strike poll taxes, literacy tests and schemes designed to give some voters more weight than others. Those cases and many others provide the capstone of a great career that began in the imagination of a Bakersfield boy in the waning years of the nineteenth century, that carried him through world wars and the Cold War, that placed him atop the commission that examined the assassination of President Kennedy in Dallas, and that ended at a pinnacle of legal and political authority. All of that makes Warren's story a judicial biography, yes, but also the story of a nation as it grew, a chronicle of American history and the passage of American society into its maturity, guided by Warren himself. The size and scope of Earl Warren's life makes for compelling biography — at least I think it does. The nature of his personality makes it even more so. Warren's personal and public lives are integrated into a whole character, not a flawless one but a solid and coherent one where one experience illuminates another. And, in this case, what made for good character also made for a great man. Earl Warren lived a long and important life; he was an assertive maker of history, a man of principle, of the type for whom many have such longing and nostalgia today. I am privileged to have made a study of his life, but America is the real beneficiary: The nation that Warren made, our nation, is better because of him. The writer: Jim Newton is the City-County Bureau Chief of the Los Angeles Times and the author of Justice for All: Earl Warren and the Nation He Made, published in October 2006 by Riverhead Books (Penguin USA). Jim wrote this essay for CaliforniaAuthors.com. |
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