Earl Warren grew up in Los Angeles, the son of Scandinavian immigrants. As a youth he worked for the Southern Pacific Railroad, and came to despise the power of what he called a faceless corporation that could fire men without notice and ignore the misfortunes of employees injured on the job. During his college years at Berkeley he showed his first taste for politics, and worked for the election of progressive Republican Hiram W. Johnson as governor. This experience aligned Warren with the progressive wing of the Republican Party, a position he would occupy for the rest of his life.
Neither in college nor in law school did Warren show any aptitude for academic studies. At Boalt Hall, he refused even to speak in class, claiming that in order to earn a degree he did not have to participate in discussion, but only pass the exams. He did pass, and then for a short time was in private practice, which he disliked intensely. In World War I, he enlisted in the army, and although he did not go overseas, rose in the ranks to become a first lieutenant. After his discharge he held several minor posts in state and local governments in California before becoming deputy district attorney of Alameda County in May 1920. He would remain in public service the rest of his career.
The prosecutorial experience that Warren gained, first in Alameda and later as attorney general of California proved one of the decisive influences in his later judicial philosophy. Warren had no love of criminals or radicals, and during the 1920s and 1930s gained a statewide reputation for his vigorous and successful prosecution of corrupt politicians, bootleg liquor dealers, and the like. But he also cleaned up the sheriff’s office in Alameda, successfully prosecuting the sheriff and more than a half-dozen deputies for corruption. He then went on to professionalize law enforcement in the county, providing extensive training for police officers, securing legislation establishing interjurisdictional cooperation, the introduction of scientific analysis of evidence, and the centralization of information. By the time he won his second full term as Alameda district attorney in 1934, Warren had become one of the best-known prosecutors in the country.
When considering the revolution in criminal justice that Warren oversaw during his years on the Supreme Court, it is easy to trace the philosophy if not the exact details to his years in California. On the Court only he and Hugo Black had any experience in criminal law, he as a prosecutor and Black both as a prosecutor and defense attorney. They knew from firsthand experience how the system actually worked, how important a lawyer could be in the different phases of arrest, indictment, trial, and appeal. They also knew how the system discriminated against the poor, that is, those who could not afford a lawyer and had no protection from the power of the state. They also knew that while the Fourth, Fifth, and Sixth Amendments protected defendants in federal courts, little of that protection existed at the state level.
Given his reputation as a civil libertarian while on the Court, there is little in his record in California to foreshadow his later position. He willingly prosecuted radicals under California’s syndicalism law (the same law that would be applied to Anita Whitney), and in 1936 engaged in out-and-out red baiting to prosecute four union members charged with killing a fifth worker aboard a freighter. He denounced the men as ‘‘radicals,’’ and it appears that the evidence used against them came from warrantless wiretaps and confessions coerced by the police who refused the men a chance to talk with their lawyer.
So popular had Warren become that by 1938 he won the Republican, Democratic, and Progressive Party nominations for the office of state attorney general, and with support from business and other antilabor groups, easily beat his opponent by a margin of four to one. Once in office, Warren went through the same pattern he had shown in the county, reorganizing his office, upgrading the qualifications and training of state police, and vigorously prosecuting gambling, prostitution, and other activities associated with organized crime, as well as political corruption in state government. By the end of his tenure, California had one of the least politically corrupt governments in the union, and Warren and Thomas E. Dewey of New York shared the reputation as best state law enforcement officers.
But once again Warren’s record on civil liberties left much to be desired. He continued his attacks on aliens, and supported legislative committee witch hunts aimed at alleged communists. He fought endlessly with Democratic Governor Culbert L. Olson, who not only pardoned World War I radical and labor agitator Tom Mooney, but also commuted the sentences of the four ship workers Warren had prosecuted in 1936. Warren took this as personal criticism of him, and declared that the men had been fairly tried and convicted, and in addition ‘‘they are also revolutionaries—and Communists.’’ When Olson wanted to appoint law professor Max Radin, a civil libertarian, advocate of labor rights, and a frequent critic of Warren’s, to the state supreme court, Warren helped defeat the appointment. As some observers noted, at that time Warren could not tell the difference between a communist and a person who backed the rights of labor or defended civil liberties.
Perhaps the greatest blot on Warren’s record came during World War II, when he became one of the leading advocates of the internment of Japanese Americans living in California. Despite his later comment in his Memoirs that he ‘‘had no prejudice against the Japanese’’ except that spawned in the aftermath of Pearl Harbor, in fact Warren had joined nativist organizations and in nearly two decades of public life prior to the war had never shown any sympathy toward Japanese or Chinese Americans. But he did admit in his memoirs that the treatment of Japanese Americans during the war was ‘‘regrettable,’’ and that he was ‘‘conscience stricken’’ by the thought of little children in the internment camps.
Interestingly enough, in a decision he admitted ran counter to his support of the internment program, as attorney general Warren ruled that the state personnel board could not deprive state employees of Japanese descent of their civil service rights. While later repentant for his role in advocating and enforcing the internment, Warren nonetheless always maintained that during wartime government could restrict the rights of its citizens.
In 1942, Warren challenged Olson for the governorship, and easily defeated him; he then went on to win reelection in 1946, and for an unprecedented third term in 1950, both times by wide margins. Once again he set out to reform the administration of his office. He dismantled a secret system for taping conversations in the governor’s office. He made a number of high-level appointments based on the ability of the person, often without even inquiring into their party affiliation. He sponsored a number of reforms, some of which antagonized powerful business interests and eroded his support among traditional Republicans. His record, however, won him a national reputation and he continued to enjoy enormous popular support in California.
Once again, however, his civil liberties record is mixed. He gave up red baiting, distanced himself from the red-scare tactics of Richard Nixon and Goodwin Knight in California, and even tried to protect academics in the state university system again oaths and indiscriminate firings for alleged radicalism. But he did endorse a regents’ policy against the employment of communists, and after the Korean War signed a bill that imposed a loyalty oath on all state employees.
In 1948 he had run as Thomas Dewey’s vice presidential candidate, and this made him one of the potential candidates for the Republican nomination in 1952. Supposedly he threw his support to Dwight D. Eisenhower in return for a promise of the first appointment to the Supreme Court. There is no evidence of any such deal, and according to Warren’s Memoirs, Eisenhower initially considered him for a cabinet appointment. When that did not pan out, the presidentelect called Warren and said, ‘‘I want you to know that I intend to offer you the first vacancy on the Supreme Court.’’ In fact, in preparation for that position, Eisenhower invited Warren to become solicitor general; Warren accepted, and was packing his bags to come to Washington when Chief Justice Fred M. Vinson died. In late September 1953, Eisenhower gave Warren an interim appointment to the high court; the Senate ultimately confirmed him on March 1, 1954.
The constitutional mark left at the end of Earl Warren’s term as the fourteenth chief justice of the U.S. Supreme Court reflected the tremendous changes in American society during the 1950s and 1960s. These changes involved a significant expansion in the rights and liberties of individuals in the name of securing the goals of social and political equality. Warren’s judicial legacy is striking in two important respects. First, the decisions of the Court he led for fifteen years contributed substantially to the expansion of the constitutional rights of Americans and to the expansion of the role of the federal government in enforcing and protecting those rights. Second, his willingness to adapt and create legal doctrines to fit his ideological beliefs and commitments represented an enhanced role for the Supreme Court in superintending governmental decision making on an order of magnitude not seen since the New Deal. Especially significant during the time of Warren’s stewardship was the Supreme Court’s role in eradicating vestiges of public and private discrimination, in expanding the scope of protections for individuals accused of committing crimes, in ensuring the rights of free expression and religious freedom, and in improving the processes of representation and democracy in order to ensure a more responsive and effective government.
Historians’ judgment that Earl Warren ranks with John Marshall as one of the two greatest chief justices in the Supreme Court’s history is based on Warren’s performance as a leader of the Court during a time of tremendous social and political controversy. While scholars have struggled to carve out from Warren’s decisions a discernible judicial philosophy and jurisprudential compass, Warren has never been regarded as a great jurist, as a judge who has shaped the course of the law through his written opinions. One of Warren’s biographers, G. Edward White, has argued that there is indeed a coherent jurisprudential line in Warren’s judicial writings. Warren, White claims,
equated judicial lawmaking with neither the dictates of reason ... nor the demands imposed by an institutional theory of the judge’s role, nor the alleged ‘command’ of the constitutional text, but rather with his own reconstruction of the ethical structure of the Constitution.
While this ‘‘ethicist’’ approach to judging pointed to particular judicial results—quite liberal results—it is less clear that such a description captures fully the structure of reasoning in Warren’s decisions. Quite often, Warren’s opinions are stolid and doctrinally underdeveloped. In other instances, notably Brown v. Board of Education (1954) and Miranda v. Arizona (1966), Warren relied on a body of empirical data and social science without explaining adequately the bases of this approach and the link between the empirical evidence and the stated doctrine. Nevertheless, Earl Warren stands out as a great chief justice, one whom Justice William J. Brennan described as the ‘‘Superchief,’’ because of his performance as leader of the Court. Rather than exercising influence through an outpouring of carefully crafted judicial decisions, Warren was content to affect the course of the law chiefly through the powers of the office of chief justice and especially through his considerable interpersonal skills and political savvy. His most notable victories, namely Brown, Baker v. Carr (1962), and Miranda, reflect the work of a skillful judicial leader, one with a keen sense for politics as ‘‘the art of the possible.’’
Earl Warren’s ability as a leader was tested immediately on his appointment to the Court. By the time of his arrival, the Court had heard arguments in a consolidated series of cases challenging the constitutionality of segregated public schools. The most ambitious of the claims raised by the appellants was the call for an overruling of Plessy v. Ferguson (1896), in which the Court had enunciated the doctrine of ‘‘separate but equal’’ and had upheld the constitutionality of segregated public facilities. At conference following the oral argument in the first case to reach the Court in the spring of 1953, the Court was divided. On taking office, Warren presided over re-argument in the case and then set out to manufacture a unanimous Court for the proposition that segregated public schools constituted an unconstitutional deprivation of the equal protection of the laws.
Scholars who have examined closely the decisionmaking process in the segregation cases agree that Warren played a pivotal role in securing assent by each justice to the ruling in Brown. This road to unanimity began with Warren’s expressed view in the conference held after re-argument in the first segregation cases that Plessy should be overruled. He worked on securing a unanimous result through conversations with the fence-sitting justices and through circulation of the drafts of an opinion in the case. Warren’s decision for the unanimous Court in Brown concentrated on taking the doctrinal legs out from under Plessy, relying on sociological data and on a forceful explication of the view, eloquently presented to the Court by National Association for the Advancement of Colored People lawyer Thurgood Marshall, that ‘‘separate is inherently unequal.’’
What is clear is that aside from whatever legal arguments could be crafted by either side, Warren cut straight to the heart of the matter—segregation was so morally wrong that it could not be tolerated by the Constitution. In all the decisions between Brown in 1954 and Loving v. Virginia in 1967, which struck down laws banning interracial marriage, Warren secured a unanimous Court because he continued to emphasize the moral issues involved.
He did this again in what he considered the greatest achievement of the Warren Court—the reapportionment cases. Legislative apportionment in many ways represents the quintessential dispute over the proper role of the judiciary in ensuring fair representation. In 1946 Felix Frankfurter had warned against the judiciary getting involved in the ‘‘political thicket,’’ and called questions of apportionment nonjusticiable, since the courts could not devise a workable solution. In Baker v. Carr (1962), the Court decisively rejected this ‘‘political question’’ theory, and agreed that challenges to unfair apportionment schemes could be heard in the courts.
In 1964, the Supreme Court reached the merits of an apportionment scheme in the case of Reynolds v. Sims. Reynolds concerned an apportionment scheme in the state of Alabama in which the votes of residents of rural areas were accorded vastly more significance, because of their relative numerical weight, than voters in urban areas. The issue triggered Warren’s instincts for political fairness and equality. ‘‘How long should we have to wait?’’ Warren asked Alabama’s attorney who attempted to reassure the justices that Alabama would correct its representational flaws in time. Warren wrote the opinion for the Court, declaring that ‘‘legislators represent people, not trees or acres’’ and announcing the ‘‘one man, one vote’’ rule mandating that state legislative districts represent an equal number of constituents. Judicial intervention in the name of securing fair representation represented a key theme in Warren’s jurisprudence throughout his tenure.
The Court’s apportionment decisions provided both a precedent for judicial intervention into the political arrangements of states and a bright-line rule for the construction of all legislative districts except the U.S. Senate. To Warren, however, the effects of the reapportionment decisions were transformative in just the right way. The decisions represented the critical link in the Court’s efforts to limit the effects of race discrimination and the efforts to shut out minorities from effective participation in state political systems. Indeed, Warren opined that had the Court decided Baker v. Carr early on, the desegregation decisions would have proved unnecessary.
Judicial intervention in the name of securing fair representation represented a key theme in Warren’s jurisprudence throughout his tenure, and can be seen in two cases decided in Warren’s final term. In Powell v. McCormack (1969), the Court considered whether the decision by the House of Representatives to unseat Representative Adam Clayton Powell violated the Constitution. In his opinion for the Court, Chief Justice Warren explained the limited power of the House to discipline its members, stressing the right of the people to elect their representatives. Powell was and remains a rare case in which the Court invalidated an internal decision of the legislature on what amounted to democratic ‘‘fairness’’ grounds.
In Allen v. State Board of Elections that same term, the Court endorsed a broad interpretation of Section 5 of the 1965 Voting Rights Act. Section 5 provided that the Department of Justice review any changes in state voting schemes prior to their taking effect. The Court, in an opinion written by Warren, rejected the view that the statute was limited to only those state rules prescribing who may register to vote. Warren wrote that the act ‘‘was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.’’ Accordingly, he interpreted the act to subject to federal review any state voting enactment that ‘‘altered the election law of a covered State in even a minor way.’’
The most controversial area in which the Warren Court changed the balance between the individual and the state was in the area of criminal law and the rights of the accused. Reflecting his pre-Court commitment to fairness in law enforcement, Warren proved willing to look closely at police conduct and to consider whether the accused had been treated fairly. In Watkins v. United States (1957), for example, Warren wrote an opinion for the Court in which he held that Congress, acting through the House Un-American Activities Committee, had improperly held Watkins in contempt of Congress for failing to disclose certain information. Congress had failed, wrote Warren, to provide the defendant with ‘‘a fair opportunity to determine whether he was within his rights in refusing to answer.’’ Judicial redress for the failure of the government to provide a criminal defendant with due process would represent a common theme through Warren’s constitutional jurisprudence.
The most famous of these criminal procedure decisions were Gideon v. Wainwright (1963) and Miranda v. Arizona (1966). Clarence Earl Gideon had been convicted of a robbery and denied counsel in a Florida court. In an opinion written by Hugo Black reversing more than two decades of precedent, the Court applied the Sixth Amendment to the states and held that a defendant could not have a fair trial without benefit of an attorney.
Ernesto Miranda had been arrested and questioned without being advised as to his constitutional rights, including the right to have an attorney present for questioning. In his opinion for the majority, the chief justice elaborately reviewed historical and contemporary police practices, in an attempt to persuade the reader that the so-called Miranda requirements would not unduly burden law enforcement officials. According to some scholars, Miranda was ‘‘the quintessential Warren opinion.’’ It was broad in scope, relied on a patched-together history, and made an impassioned plea for fairness rather than setting out a closely reasoned doctrinal story. It also imposed substantial restrictions on governmental conduct. While Miranda generated a storm of controversy at the time of the decision and for years afterward, Warren’s approach to constructing a code of police conduct in the arrest and interrogation situation has largely been vindicated; most regard the criminal process as substantially fairer as a result of Miranda.
Warren is given much less credit in the area of obscenity and the First Amendment. He usually followed the carefully constructed doctrinal rationales of his close ally and confidante, William Brennan, Warren voted to strike down a variety of government restrictions on freedom of expression and of religion, although in his early years he proved less than sensitive to the claims of minorities. There is a big difference between the early Warren who saw no restriction of free exercise by Sunday closing laws on Orthodox Jews, and the Warren who joined in the Court’s opinion requiring the states to accommodate the needs of Seventh Day Adventists.
When it came to government restrictions on allegedly obscene speech, however, Warren disagreed with the more liberal views of Black, Douglas, and Brennan. Warren believed strongly in what he called ‘‘a right of the government to maintain a decent society.’’ He thus gave the government great latitude to ban the circulation of allegedly pornographic materials. Warren emphasized in his obscenity opinions that the Court should defer to the local communities in their authority to combat obscenity and its effects. Warren’s struggle to carve out a special jurisprudence in the obscenity area was widely regarded as a failure, and it could not be reconciled with the Warren Court’s general commitment to freedom of expression.
Warren clearly placed his stamp on the Court’s expansive rights jurisprudence. The Court he led was committed to an expansive jurisprudence of rights protected by the Constitution. This approach, according to some scholars, reached its apotheosis in cases such as Griswold v. Connecticut (1965), in which the majority found a right to privacy in the penumbra of the Bill of Rights.
Earl Warren, while the author of some of the Court’s great opinions, played a far more important role through the leadership he provided. Many of the great cases he generously assigned to his colleagues, but there is little doubt that his masterful political skills played a key role in constructing the majorities that struck down segregation, reapportioned the states, enhanced protection of speech and religion, and triggered the due process revolution in criminal procedure. For this he deservedly earned a reputation not only as a civil libertarian but also as the ‘‘Superchief.’’
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited