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“The Ultimate Pragmatist”

ISSUE:  Spring 1983
Earl Warren: A Public Life. By G. Edward White. Oxford. $25.00.

Chief Justice Earl Warren is one of the most enigmatic justices ever to sit on the Supreme Court. His name is identified with one of the most controversial, and yet intellectually brilliant, eras in the court’s history. Personally he was a man of commanding presence, combining the aloof dignity of a Chief Justice Hughes with a politician’s smile and memory for names. Usually remotely benign, he was also capable of flashes of deep anger. Warren wrote many of the most controversial, and yet far-reaching, opinions of the Court over which he presided. But to most lawyers, his judicial philosophy was unfathomable.

From 1955 to 1969 Earl Warren was the chief jurist on a court that included several of the greatest justices in the Court’s long history—Black, Frankfurter, Douglas, and Harlan. Each had clearly articulated, well-understood—and conflicting—theories of constitutional jurisprudence. These four giants had their own unmistakable, and sharply contrasting, writing styles. Warren’s opinions, on the other hand, were often fuzzy in their reasoning, sometimes written in the leaping and lingering style of English ballads, though ultimately clear and unmistakable in their pronouncement of the result. This lack of style and the absence of a readily discernible constitutional philosophy led many who watched the Court closely and were strong admirers of one or more of his contemporaries to underestimate Warren’s importance on the “Warren Court” and to assign him the role of a figure-head.

Edward White’s carefully researched new book dispels the figurehead myth. Earl Warren was in fact, as well as in name, the chief of his court—not in the sense that he dominated intellectually, but rather that he orchestrated, maneuvered, cajoled, and often outfoxed his strongly opinionated, conflicting brethren. White’s descriptions of some of the Court’s behind-the-scenes maneuvering in key cases and the evolution of Warren’s personal relationship with Frankfurter, Black, and Brennan are fascinating. Moreover, based on what little I know personally of the period and some of the people, I believe these accounts are fair and accurate. White also tells us the earlier experiences in the life of Earl Warren that enabled him to reach the Supreme Court and run a rather taut ship despite such a strong and independent crew.

Earl Warren, as White sees him, was first and foremost a Californian of his times. Until 1948, when he was Dewey’s vice-presidential candidate, Warren had never been outside the state for any length of time. Both his parents were of Scandinavian stock. Warren was strongly influenced by his father, who worked extremely hard as a foreman for the Southern Pacific Railroad, saved, was abstemious, authoritarian, and determined to see that his children got the college education he never had. Warren’s childhood was a series of lessons in self-discipline, personal forbearance, and self-control. White states that, as a result, all his life Warren had “a tendency to see the question of obedience to authority as one of moral dimensions.”

Warren moved easily from the study of law at Bolt Hall into the Progressive movement in California politics. His idol was Hiram Johnson, who became governor, then senator, swamping the old-line politicians and ultimately gaining the nominations of both parties—a feat Warren was to repeat in later years. Progressivism in California in the 1910’s and 1920’s was essentially a middle-class, nonpartisan movement that was against political corruption, crime, and sin. At the same time it also had a darker “nativist” strain which made it antioriental, and it wrapped itself in the rhetoric of patriotism.

Earl Warren soon moved from the private practice of the law, where he had a “relatively unprepossessing” career, into the district attorney’s office of Alameda County. He became known as one of the hardest working, most honest, and eflFective prosecutors of crime in the country, just as later he became one of the most enlightened, effective, popular governors this country has produced. A consummate politician, he was also, because of the unique features of California’s experience with Progressivism, “above” party politics most of the time. He worked hard and was phenomenally lucky.

But like California’s Progressivism, California’s Earl Warren also had his flaws. In 1936 Warren became involved in the Point Lobos trials. They centered on the murder of a vocal anti-Communist chief engineer of the freighter Point Lobos when it was alongside the Oakland waterfront. Those prosecuted by Warren were connected with the marine union and alleged to have Communist affiliations. White gives a detailed account of the whole affair.

White says that Warren’s office engaged in a host of practices that were held unconstitutional years later by the Warren Court. “Thus under modern standards of criminal procedure, which Chief Justice Earl Warren pioneered in formulating, District Attorney Earl Warren would probably have been prevented from convicting all the Point Lobos defendants.” I think this criticism is unfair. Constitutional notions in the 30’s and in the 60’s of what is permissible or impermissible in the criminal justice area were light years apart. White’s general observation could well have been made for a substantial number of state and federal prosecutors throughout the country in the 1930’s.

White also analyzes Warren’s subsequent blocking of the nomination of Max Radin, a law professor who strongly criticized his handling of the Point Lobos case, to the California Supreme Court in 1940. He is highly critical of Warren’s behavior on this occasion. White says that: “Warren was motivated to deny Max Radin the nomination out of deep personal animus. . . . The story of how Warren helped to scuttle Radin’s nomination can be seen as an exercise in how accomplished politicians settle scores; it can also be seen as revealing the single-minded determination Warren concealed under his surface blandness.”

White sees in Warren’s rebuff by big business in his solicitation of campaign funds and his father’s earlier hostile dependence on the Southern Pacific the seeds of a lifelong animus against big business. White observes that this helps explain his later votes on the Court with the government in antitrust cases. Similarly, White views Warren’s sometimes unsuccessful battles with lobbyists in the California legislature as giving him a low regard for legislators, which helps explain his decisions in the reapportionment and contempt of Congress cases.

This strain of animus was totally absent, however, from Warren’s relationship with his family and his few close personal friends. By 19th- and early 20th-century standards, he was the model son, husband, and father. He refused to let his public life intrude on the substantial time he spent with his family, and he shielded them assiduously from the press—in marked contrast to many present-day politicians. The world of politics and public affairs stopped at the front door of the Warren home. If anyone called him after business hours at home, he would insist that they give him time to go to his office to return the call. White also believes that Warren genuinely cared about people in general.

While acknowledging these domestic virtues, the author’s basic premise is that personal animosity played a major role in Warren’s public life. Once Warren perceived persons or groups as his enemy, they became the personification of evil for him. He never forgot or forgave; he just got even. Thus the wellspring of his actions as attorney general and governor of California and as chief justice of the United States was hatred, not love. Behind the steady gaze and cautious smile lay the brooding dark soul of an ancient Norse god, implacable, relentless, and usually inexorably victorious. And when victorious, he was convinced he was morally right and that the ends had justified the means. The fact that Warren had often done right in the eyes of his contemporaries, and indeed in White’s eyes, does not brighten the dark portrait painted. But even if we accept it as true, we must ask if Warren really differed much from many other crusaders or reformers down through the ages.

These details of the life of Earl Warren and the author’s ideas as to what really made him tick are interesting enough. But especially intriguing and strangely troublesome is White’s theory for deciphering the Sphinx’s riddle of Warren’s constitutional jurisprudence. Bluntly stated, it is that Warren viewed his own perception of what was morally right as the touchstone of constitutionality. Stated another way, he followed a mid-20th-century version of “natural law,” but without attributing its fundamental principles to a deity or the natural order of the Universe and not tying them to, or being limited by, specific provisions of the Constitution. In White’s focus, Warren emerges as the ultimate pragmatist, principled but vindictive.

Since the “activist” charge is what a host of critics of the Warren Court attribute to it, it is jolting to see this charge systematically documented as to Warren by one of his former clerks. There is undoubtedly substantial truth in White’s thesis. But I feel that White has oversimplified Earl Warren’s judicial philosophy and in the process judged his old boss too harshly. This feeling is strengthened by the last chapter in the book that is entitled “Ethics and Activism.” In it the author expounds his own constitutional philosophy, and it is the antithesis of the thesis he ascribes to Warren.

Where does this leave us? Here I must confess that my ability to evaluate the book objectively is undermined by my own personal experience and subjective values. I had the privilege of clerking for Justice Hugo Black in the 1956—57 term of the Supreme Court. Though almost 27 years have passed, it would still be impossible for me to write an objective assessment of Justice Black. My view would be distorted by personal feelings toward him. Perhaps more important, my recollections of him center on the way he was the particular year I spent with him. I will always see the earlier and the later Justice Black through that 1956—57 prism. White clerked for Chief Justice Warren several years later. He also may be handicapped by that personal relationship. It may explain the book’s basic ambivalence, as the two strands of deep affection and subconscious hostility intertwine. Perhaps this ambivalence is unavoidable whenever sons sit in judgment on their fathers.

In any event, this is a fascinating book about a towering figure of our times. I literally could not put it down once I started it. And after reading it, I am still haunted by the enigma of Earl Warren—and troubled by the hindsights of Edward White.


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