Warren’s Legacy Has Important Message for Submissive Court

By William Domnarski

      Recently named Los Angeles Times Editorial Page Editor Jim Newton has written a fine and perhaps definitive biography of former California governor and U.S. Supreme Court Justice Earl Warren. Warren, as we all know, effectively led and engineered the fundamental doctrinal shifts in civil rights jurisprudence that have shaped the way we now live.
      Newton has approached his subject with modesty and diligence. He has mastered a shelf of secondary material, dug into an extensive archival record and consulted and listened to the most distinguished legal historians of our time to produce a comprehensive and highly readable account of a life that dominated both California politics and the entirely different world of the Supreme Court, the Marble Palace where "nine scorpions in a bottle," as Max Lerner once put it, can sometimes get up to mischief.
      Warren would have had books written about him even if he had never taken President Dwight D. Eisenhower at his word and gone to Washington in 1953 when the first seat on the court opened up. He was a corruption-busting district attorney in Alameda County and then an aggressive California Attorney General (to the dismay of the Japanese who were interned during World War II) before aligning with Republican political forces and being elected governor three times, each with ever-increasing victory margins. He went further and entered national politics. He was Republican presidential nominee Thomas Dewey's running mate in 1948 and could probably have gotten to the White House if politics had been all that he wanted.
      When Warren took over, the court was locked in a titanic struggle between two factions of polarized sensibilities. On the left, Hugo Black and William Douglas were pushing the court toward making the genius of the Bill of Rights applicable to the states by way of a broad reading of the Fourteenth Amendment. Trying to keep a lid on the expansion, Felix Frankfurter and Robert Jackson advanced a view of the court that kept it on the sidelines unless there was bloodletting. Jackson soon departed, but the struggle continued, with Frankfurter swaying the many conservative Truman appointees to his side. Warren arrived into this mix and, after taking a few tentative steps, fell in with Black and Douglas, subsequently bolstering his forces with William Brennan, who would perhaps become closest to him on the bench. With this core group, the Warren Court reshaped our nation.
      The monuments of the Warren Court are known to all and have enjoyed a good run. With his liberal brethren, Warren imposed federalized constitutional rights on the states, no matter whether the practice goes by the name of "total" or "selective" incorporation. Warren's nation changed the way we think and act in the areas of desegregation, voting rights, contraceptive rights, the right to counsel and the right to be advised of your rights when arrested (to name but a few). Though he was not necessarily caught up in the details and processes of judging, Warren did everything but polish the comprehensive drafts he wrote in the famous Brown and Miranda cases. He might not have had the brains of Douglas or the writing skills of Jackson, but he got the job done, and memorably so.
      Warren brought a great, persuasive presence to the court at the very time it - and the nation - needed it most. This legacy might have slipped away, however, if Warren had not taken the rehearing of Brown and demanded that the court be unanimous in striking down segregation. The great Charles Evans Hughes had the bearing and accomplishments to impose obedience, but it is not likely that Hughes, chief justice in the 1930s, was sufficiently progressive to see that segregation had to go. Lesser justices, like Frankfurter for instance, did not possess the necessary boldness and had to be led.
      To his credit, Newton unflinchingly details Warren's failures and weaknesses. As a prosecutor, for example, Warren sometimes was driven, as Justice Louis Brandeis once put it, by zeal but not understanding. As governor, Warren, for all the talk of bipartisanship, could take aim at liberals he disliked and operate vengefully. All of this, we recognize, flows from a complex personality that had rough edges. Warren was sensitive to slights and was stubborn and even churlish at times. He could be cold and was niggardly in his praise of those who worked for him. The gap between him and Douglas - of the coldest, bluest-eyed fame -is not perhaps as great as we thought. What Warren could do, though, was engage the people he needed to persuade and, in fact, persuade them. Douglas was not sufficiently interested in doing this.
      What really distinguishes Newton's book, though, is his ability to recognize and describe the many ways that Warren the man changed as he got older. Even at 50 and as governor of our great state, Warren was scarcely half-made up, still having to develop a greater appreciation of people and a deeper commitment to social justice. But grow he did, however, becoming something of a paradox: a stubborn man who yielded his sense of self to grow and see the world more expansively.
      He valued honesty and a commitment to progress from colleagues and from national politicians. He fell out with Eisenhower, who did not have the nerve to advance desegregation, and of course he hated Richard Nixon from the beginning. They were both Californian politicians, but the similarities ended there. On the court, he feuded with Frankfurter, who was always trying to subvert the court's operations to his own design. Frankfurter, ever gracious, described Warren as the "big dumb Swede" and did not mind that his clerks parroted this denigration.
      Warren was an extraordinary political and judicial figure, and we are probably not going to see his likes again. The judicial age seems to have lapsed, leaving us not with a legislative age so much as an executive age. No president is likely to put someone like Warren in the center seat again. In our age, in which the executive branch wants to graft the judicial branch onto itself, appointments go not to those capable of fulfilling the promise of an independent judiciary, but to extensions of the White House: culture warriors who champion ideology.
      What is most troubling about our current court and its leader is that change is not likely to occur. Warren changed and grew because of the vastness of his political experience. In contrast, shuffling from one Capitol Hill office to another narrows a candidate and provides the troubling insulation that keeps the energy flow from the executive to the judicial branch unimpeded. The unitary executive operates at Congress' expense, to be sure, but it also operates at the court's expense, with the Constitution itself suffering.
      Newton has gotten it right in his fine biography of Earl Warren. He gets the court right (no small feat by itself), but he also gets California right. This in turn allows him to get Warren right. As he puts it in the beginning, "Earl Warren could not have become the man he was had he been raised anywhere but in the time and place of his upbringing." Newton delivers on all of the promises of this sentence and has written a book we - including Chief Justice Roberts - should all read.
     
      William Domnarski is a sole practitioner in Los Angeles who works exclusively in federal court. He has written two books on the federal court system and its judges.