Earl Warren (1891–1974), was governor of California (1942-53) and Chief Justice of the Supreme Court of the United States (1954-69). He is best known for the sweeping liberal decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, school prayer, and legislative district apportionment. He made the Court a power center on a more even base with Congress and the presidency especially through four landmark decisions: Brown v. Board of Education (1954), Gideon v. Wainwright (1963), Reynolds v. Sims (1964), and Miranda v. Arizona (1966).
Warren was born in Los Angeles, the son of Methias H. ("Matt") Warren, a railroad worker, and Christine Hernlund. After Matt was blacklisted for joining in a strike, the family moved to Bakersfield, California, in 1894, where the father worked in a railroad repair yard, and the son had summer jobs in railroading. Warren always recalled how big corporations could dominate the lives of their employees and how powerless minority members were when faced with discrimination. He was strongly influenced by the reform currents of the Progressive Era to oppose corruption and promote democracy.
Warren graduated from Kern County High School and then attended college and law school at the University of California at Berkeley, earning a B.L. in 1912 and a LL.B. in 1914. He worked for a law firm before serving briefly in the army in 1918. He built his career at the Alameda County district attorney's office 1920-38. In 1926 he was elected to the first of three terms as district attorney. In 1925, he married Nina Palmquist Meyers, a widow with a young son. Warren adopted him, and the couple had five more children.
Shortly after taking office, irregularities were uncovered in the city of Oakland, the largest city in Alameda County. Warren vigorously investigated allegations that a deputy sheriff was taking bribes in connection with street-paving arrangements.
Warren soon gained a statewide reputation as a tough, no-nonsense district attorney who fought corruption in government; a 1931 survey voted listed him as the best district attorney in the country. He ran his office in a nonpartisan manner and strongly supported the autonomy of law enforcement agencies. But he also believed that police and prosecutors had to act fairly, and much of what would later lie at the heart of the Warren Court's revolution in criminal justice can be traced back to his days as an active prosecuting attorney.
In 1938, Warren ran successfully for the California attorney generalship. He expanded the office, and built greater cooperation among various law enforcement agencies. By 1942, Warren was one of the most popular officials in California, and he ran for and was elected governor on the Republican ticket. He was reelected in 1946 and 1950.
As governor Warren modernized the office of governor, and state government generally.
Like all progressives, Warren believed in efficiency and planning. During World War II he aggressively pursued postwar economic planning. Fearing another postwar decline that would rival the depression years, Governor Earl Warren initiated public works projects similar to those of the New Deal to capitalize on wartime tax surpluses and provide jobs for returning veterans. Warren also built up the state's higher education system based on the University of California and its vast network of small universities and community colleges. For example, his support of the Collier-Burns Act in 1947 raised gasoline taxes that funded a massive program of freeway construction. Unlike states where tolls or bonds funded highway construction, California's gasoline taxes were earmarked for building the system. Warren's support for the bill was crucial because his status as a popular governor strengthened his views, in contrast with opposition from trucking, oil, and gas lobbyists. The Collier-Burns Act helped influence passage of the Federal-Aid Highway Act in 1956, setting a pattern for national highway construction.
Like all state, local and national officials in California, he supported the relocation of everyone of Japanese descent in 1942-44. For many years Warren defended the action, maintaining that it seemed the right and necessary thing to do at the time; in his memoirs, published after his death, he finally acknowledged that relocation had been an error.
Success as governor of a major state made Warren a national figure. In he was selected by New York Governor Thomas E. Dewey as vice presidential candidate. The GOP ticket was defeated by Harry S. Truman, to the astonishment of virtually all observers and pollsters, who had predicted Truman's defeat. In 1952 he was California's favorite son candidate for president, but had to head off a revolt by Senator Richard M. Nixon who supported Dwight D. Eisenhower. Eisenhower and Nixon were elected, and the bad blood between Warren and Nixon was apparent.
Eisenhower offered, and Warren had accepted, the post of solicitor general, with the promise of a seat on the Supreme Court. But before it was announced Chief Justice Fred Vinson unexpectedly died in September 1953 and Eisenhower picked Warren to replace him.
Warren took his seat January 11, 1954 on a recess appointment; the Senate confirmed him six weeks later. Despite his lack of judicial experience, his years in the Alameda County district attorney's office and as state attorney general gave him far more knowledge of the law in practice than most other members of the Court had.
Warren's greatest asset, what made him in the eyes of many of his admirers "Super Chief," was his political skill in manipulating the other justices. Over the years his ability to lead the Court, to forge majorities in support of major decisions, and to inspire liberal forces around the nation, outweighed his intellectual weaknesses. Warren realized his weakness and asked the senior associate justice, Hugo L. Black, to preside over conferences until he became accustomed to the drill. A quick study, Warren soon was in fact as well as in name the Court's chief justice.
All the justices had been appointed by Franklin D. Roosevelt or Truman, and all were committed New Deal liberals. They disagreed about the role that the courts should play in achieving liberal goals. The Court was split between two warring factions. Felix Frankfurter and Robert H. Jackson led one faction, which insisted upon judicial self-restraint and constantly warned about the judicial activism of conservative justices that had led to the constitutional crisis of 1937. For them, courts should defer to the policymaking prerogatives of the White House and congress. Hugo Black and William O. Douglas led the opposing activist faction; they agreed the court should defer in matters of economic policy, but felt the judicial agenda had been transformed from questions of property rights to those of individual liberties, and in this area courts should play a more activist role. Warren's belief that the judiciary must seek to do justice, placed him with the activists. Although he did not have a solid majority until after Frankfurter's retirement in 1962.
Brown v. Board of Education (1954)
The very first case put Warren's leadership skills to an extraordinary test. The Legal Defense Fund of the NAACP (a small, primarily white legal group separate from the much better known NAACP) had been waging a systematic legal fight against the "separate but equal" doctrine enunciated in Plessy v. Ferguson (1896) and finally had challenged Plessy in a series of five related cases, which had been argued before the Court in the spring of 1953. However the justices had been unable to decide the issue and asked to rehear the case in fall 1953, with special attention to whether the Fourteenth Amendment's equal protection clause prohibited the operation of separate public schools for whites and blacks.
While all but one justice personally rejected segregation, the self-restraint faction questioned whether the Constitution gave the Court the power to order its end. The activist faction believed the Fourteenth Amendment did give the necessary authority and were pushing to go ahead. Warren, who held only a recess appointment, held his tongue until the Senate, dominated by southerners, confirmed his appointment.
Warren told his colleagues after oral argument that he believed segregation violated the Constitution and that only if one considered African Americans inferior to whites could the practice be upheld. But he did not push for a vote. Instead, he talked with the justices and encouraged them to talk with each other as he sought a common ground on which all could stand. Finally he had eight votes, and the last holdout, Stanley Reed of Kentucky, agreed to join the rest. Warren drafted the basic opinion in Brown v. Board of Education (1954) and kept circulating and revising it until he had an opinion endorsed by all the members of the Court.
The unanimity Warren achieved helped speed the drive to desegregate public schools, which mostly came about under President Richard M. Nixon. Throughout his years as Chief, Warren succeeded in keeping all decisions concerning segregation unanimous. Brown applied to schools, but soon the Court enlarged the concept to other state actions, striking down racial classification in many areas. Congress ratified the process in the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Warren did compromise by agreeing to Frankfurter's demand that the Court go slowly in implementing desegregation; Warren used Frankfurter's suggestion that a 1955 decision (Brown II) include the phrase "all deliberate speed."
The Brown decision of 1954 marked, in dramatic fashion, the radical shift in the Court's–and the nation's–priorities from issues of property rights to civil liberties. Under Warren the courts became an active partner in governing the nation, although still not co-equal. Warren never saw the courts as a backward-looking branch of government. This active role would later cause many conservatives–including current Supreme Court justice Antonin Scalia–to see the judiciary as interfering and arguing that they practice "judicial activism".
The Brown decision was a powerful moral statement clad in a weak constitutional analysis; Warren was never a legal scholar on a par with Frankfurter or a great advocate of particular doctrines, as was Black. Instead, he believed that in all branches of government common sense, decency, and elemental justice were decisive, not stare decisis, tradition or the text of the Constitution. He wanted results. He never felt that doctrine alone should be allowed to deprive people of justice. He felt racial segregation was simply wrong, and Brown, whatever its doctrinal defects, remains a landmark decision primarily because of Warren's majestic interpretation of the equal protection clause to mean that children should not be shunted to a separate world reserved for minorities.
Warren's priority on fairness shaped other major decisions. In 1962, over the strong objections of Frankfurter, the Court agreed that questions regarding malapportionment in state legislatures were not political issues, and thus were not outside the Court's purview. For years underpopulated rural areas had deprived metropolitan centers of equal representation in state legislatures. In Warren's California, Los Angeles County had only one state senator. Cities had long since passed their peak, and now it was the middle class suburbs that were under-represented. Frankfurter insisted that the Court should avoid this "political thicket" and warned that the Court would never be able to find a clear formula to guide lower courts in the rash of lawsuits sure to follow.
But Douglas found such a formula: "one man, one vote." In the key apportionment case Reynolds v. Sims (1964) Warren delivered a civics lesson: "To the extent that a citizen's right to vote is debased, he is that much less a citizen," Warren declared. "The weight of a citizen's vote cannot be made to depend on where he lives. This is the clear and strong command of our Constitution's Equal Protection Clause." Unlike the desegregation cases, in this instance, the Court ordered immediate action, and despite loud outcries from rural legislators, Congress failed to reach the two-thirds needed pass a constitutional amendment. The states complied, reapportioned their legislatures quickly and with minimal troubles. Numerous commentators have concluded reapportionment was the Warren Court's great "success" story.
Frankfurter retired and President Lyndon B. Johnson named labor lawyer Arthur Goldberg to replace him. Goldberg gave Warren the fifth vote for the majority the activists wanted. William Brennan, a liberal Democrat appointed by Eisenhower in 1956, was the intellectual leader of the activist faction that included Black and Douglas. Brennan complemented Warren's political skills with the strong legal skills Warren lacked. Warren and Brennan met before the regular conferences to plan out their strategy.
Due process revolution
While most Americans eventually agreed that the Court's desegregation and apportionment decisions were fair and right, disagreement about the "due process revolution" continues today. Warren took the lead in criminal justice. Warren, despite his years as a tough prosecutor, always insisted that the police must play fair or the accused should go free. Warren was privately outraged at what he considered police abuses that ranged from warrantless searches to forced confessions.
Warren’s Court ordered lawyers for indigent defendants, in Gideon v. Wainwright (1963), and prevented prosecutors from using evidence seized in illegal searches, in Mapp v. Ohio (1961). The famous case of Miranda v. Arizona (1966) summed up Warren's philosophy. Everyone, even one accused of crimes, still enjoyed constitutionally protected rights, and the police had to respect those rights and issue a specific warning when making an arrest. Warren did not believe in coddling criminals; this in Terry v. Ohio (1968) he gave police officers leeway to stop and frisk those they had reason to believe held weapons.
Conservatives angrily denounced the "handcuffing of the police." Violent crime and homicide rates shot up nationwide; in New York City, for example, after steady to declining trends until the early 1960s, the homicide rate doubled in the period from 1964-74 from just under 5 per 100,000 at the beginning of that period to just under 10 per 100,000 in 1974. After 1992 the homicide rates fell sharply.
The Warren Court's activism stretched into a new turf, especially First Amendment rights. The Court's decision outlawing mandatory school prayer in Engel v. Vitale (1962) brought vehement complaints that echoed into the 21st century.
Warren worked to nationalize the Bill of Rights by applying it to the states. Moreover, in one of the landmark cases decided by the Court, Griswold v. Connecticut (1963), the Warren Court announced a constitutionally protected right of privacy. No one at the time expected the court, after Warren’s retirement, would use the decision to allow abortion (in Roe v. Wade).
With the exception of the desegregation decisions, few decisions were unanimous. The eminent scholar John Marshall Harlan took Frankfurter's place as the Court's self-constraint spokesman, often joined by Potter Stewart and Byron R. White. But with the appointment of Thurgood Marshall, the first black justice, and Abe Fortas (replacing Goldberg), Warren could count on six votes in most cases.
President Johnson demanded in the name of patriotic duty that Warren head the governmental commission that investigated the assassination of John F. Kennedy. It was an unhappy experience for Warren, who did not want the assignment. As a judge, he valued candor and justice, but as a politician he recognized the need for secrecy in some matters. He insisted that the commission report should be unanimous, and so he compromised on a number of issues in order to get all the members to sign the final version. But many conspiracy theorists have attacked the commission's findings ever since, claiming that key evidence is missing or distorted and that there are many inconsistencies in the report.
In June 1968, Warren, fearing that Nixon would be elected president that year, worked out a retirement deal with President Johnson. Associate Justice Abe Fortas, who was secretly Johnson's top adviser, brokered the deal in which Fortas would become chief justice. The plan was foiled by the Senate, which ripped into Fortas' record and refused to confirm him. In 1969 Warren learned that Fortas had made a secret lifetime contract for $20,000 a year to provide private legal advice to Louis Wolfson, a friend and financier in deep legal trouble; Warren immediately demanded and got Fortas' resignation. Warren presided over the Court's October 1968 term and retired in spring 1969; Nixon named Warren E. Burger to succeed him.
Scholars agree that as a judge, Warren does not rank with intellectual giants such as Louis Brandeis, Black, Brennan or William Rehnquist in terms of jurisprudence. His opinions were not always clearly written, and his legal logic was often muddled. His strength lay in his clear vision that the Constitution embodied natural rights that could not be denied to the citizenry and that the Supreme Court had a special role in protecting those rights.
Conservatives attacked his judicial activism as inappropriate and have called for courts to be deferential to the elected political branches. Liberals who admit that the Warren Court went too far in some areas, insist that most of its controversial decisions struck a responsive chord in the nation and have become embedded in the law.
Warren authored "A Republic, If You Can Keep It" (1972). His "The Memoirs of Chief Justice Earl Warren" was published (posthumously) in 1977.
- John Aubrey Douglass, "Earl Warren's New Deal: Economic Transition, Postwar Planning, and Higher Education in California." Journal of Policy History 2000 12(4): 473-512
- Daniel J. B. Mitchell, “Earl Warren's Fight for California's Freeways: Setting a Path for the Nation.” Southern California Quarterly 2006 88(2): 205-238 34p.
- See Smithsonian, “Separate is Not Equal: Brown v. Board of Education’’
- For text see BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954)
- Robert L. Carter, "The Warren Court and Desegregation," Michigan Law Review, Vol. 67, No. 2 (Dec., 1968), pp. 237-248 in JSTOR
- James A. Gazell, "One Man, One Vote: Its Long Germination," The Western Political Quarterly, Vol. 23, No. 3 (Sep., 1970), pp. 445-462 in JSTOR
- See REYNOLDS v. SIMS, 377 U.S. 533 (1964)
- Robert B. McKay, "Reapportionment: Success Story of the Warren Court." Michigan Law Review, Vol. 67, No. 2 (Dec., 1968), pp. 223-236 in JSTOR
- See MIRANDA v. ARIZONA, 384 U.S. 436 (1966)
- Ronald Kahn and Ken I. Kersch, eds. The Supreme Court And American Political Development (2006) online at p. 442
- Thomas Sowell, The Vision of the Anointed: Self-congratulation as a Basis for Social Policy (1995) online at p. 26-29
- See ENGEL v. VITALE, 370 U.S. 421 (1962)
- See Griswold v. Connecticut (No. 496) 151 Conn. 544, 200 A.2d 479, reversed
- Artemus.Ward, "An Extraconstitutional Arrangement: Lyndon Johnson and the Fall of the Warren Court" White House Studies 2002 2(2): 171-183