Justice for All (77 page)

No person was happier at the outcome than Earl Warren. Nixon and Eisenhower were gone, off to contemplate the nation's rejection of their legacy and campaign. Sweetening the victory was the nature of Kennedy's election. Not only was a new president in office, but the efforts of black voters, those whose interests Warren and the Court has so assiduously protected, were in no small measure responsible for the outcome.

As the year drew to a close, Warren's personal fortunes improved as well. Virginia Warren, the beautiful young woman who was Warren's eldest daughter, set aside her long and boisterous dating life—one that had included political luminaries and business tycoons—and married John Daly, a confident journalist and television talk-show host. Earl and Nina were thrilled. They both liked Daly, who was more conservative than Warren but not in the least intimidated by him. His union with Virginia would usher in a new tone to Warren family gatherings, as Daly and Earl Warren cheerfully argued issues of the day—though never the business of the Court—generally concluding with a clap on the arm or a playful roll of the eyes.
¹¹⁵
Virginia's choice of him as a husband would warm and complete the Warren family, and they celebrated the occasion by hosting a lavish wedding in their West Coast headquarters, the Fairmont Hotel in San Francisco. Ben Swig, the Warrens' friend and the owner of the Fairmont, was delighted to have the affair at his flagship hotel, and afterward complimented Warren on the event—even after giving Warren a friendly discount, Swig acknowledged that the “bill was high enough as it was!”
¹¹⁶

At the Court, the year closed on a happy note as well. Jesse Choper, one of Warren's clerks that year and on his way to becoming one of the nation's most esteemed legal scholars, struggled that fall with the case of a young black law student who had been headed home to Alabama on a bus from Washington, D.C. The bus left in the evening and the student, Bruce Carver Boynton, got off in Richmond, Virginia, to get a bite to eat. Inside the bus terminal, he found a restaurant, but it was divided into “white” and “colored” sections. The black section had not been recently cleaned, while the white section had. Boynton, the son of civil rights activists and soon to be a lawyer, knew his conscience and so he sat down in the white section, and ordered a cheeseburger and tea. He had not planned to make a protest out of that act, but the waitress ignored him and then the manager appeared at his table. “Nigger,” he told Boynton, “move.” “That,” Boynton recalled more than fifty years later, “resolved it.”
¹¹⁷
He refused to budge, an officer was called, and Boynton was arrested, tried, convicted, and fined $10 for staying on the premises after being ordered to leave.
¹¹⁸

As Choper analyzed the case, he was troubled: He sympathized with Boynton, but Choper could find no legal basis for the Court to rule on Boynton's behalf. The restaurant was not owned by the bus company and thus was a private entity, beyond the reach of the ban on racial discrimination in public transportation. Reluctantly, Choper recommended to Warren that the Court dismiss the case—in legal terms, as “improvidently granted.” Another case will come along, he told Warren in a memo, in which the record will be better.
¹¹⁹
After reading Choper's memo, Warren called him down and confessed that he had two problems with it. The first was that Boynton was a law student and the conviction, even for such a trivial offense, might keep him from becoming a lawyer. That offended Warren's sense of fairness. Moreover, Warren acknowledged that another case might come along, but added, “I may not be here.” Given that, Warren preferred to keep searching for a way to overturn Boynton's conviction. Eventually, Black found it in an argument not raised by Boynton's lawyers—no less than Thurgood Marshall and others—at the Supreme Court. While conceding that the restaurant was privately owned, Black noted that the owner had acknowledged that it primarily relied on bus passengers for its business. The restaurant held a lease with the bus company and was located inside the bus company's terminal in order to service the bus company's passengers. All that added up to such a strong relationship to the travel of interstate passengers that the restaurant was treated as part of commerce and Boynton “had a federal right to remain in the white portion of the restaurant.”
¹²⁰
Boynton's conviction was overturned, and his law career was uninterrupted. Warren joined the decision with satisfaction and relief, his underlying belief in fairness upheld.
¹²¹

Nineteen sixty-one thus opened for Warren fresh. His enemies were vanquished—Nixon and Eisenhower were gone, the Court was back in his hand. America preened with excitement over the dashing young couple preparing to move into the White House. On Inauguration Day, Warren led the justices across the street to take their place at the swearing in. Beneath them lay a blanket of newly fallen snow, but the day was clear and sunny. Robert Frost, the great poet of New England and America, rose to read a poem he had written for the occasion, but the glare of the snow and sun was too much for his aging eyes. After stumbling with it briefly, he abandoned it and instead recited from memory a much older work, “The Gift Outright”:

 

After reciting that final line, Frost amended it by one word: “Here, for this occasion,” he said, “let me change that to ‘what she
will
become.”
¹²³
Warren sat in his chair, just an arm's length away while America's great poet, eyes watering in the sun, recited those American lines, infused with the special optimism of that January day. Warren, whose college years gave him poetry but whose lyricism would never match that of those he admired, drank in the poet's lines from the dais, the crowd gazing upward in silent apprehension, pulling for Frost, swimming in his words. Then Frost sat and Warren stood. Behind the chief justice, Eisenhower glowered in a dark coat and a long white scarf wrapped around his neck against the cold. Facing Warren directly was the new president. Behind Kennedy, Nixon gamely smiled. The chief justice guided Kennedy's hand to the Bible between them. Speaking in his gravelly voice, bareheaded in the cold, somber in his unadorned robes, Earl Warren administered the oath of office to the new president of the United States. Kennedy took it in strong and confident voice and addressed the nation as its president for the first time.

Kennedy spoke of the simple patriotism and service that always animated Warren. He heralded renewal and change, rejected his election as a victory of party—just as Warren had refused to claim his governorship as a prize of partisanship—but rather trumpeted it as a “celebration of freedom.” Invoking the Declaration of Independence—the Declaration whose values Warren had imported into the Constitution—Kennedy reminded the nation of the “revolutionary belief” that “the rights of man come not from the generosity of the state but from the hand of God.” In his most memorable passage, Kennedy raised his voice to a near-shout and proclaimed, “And so, my fellow Americans, ask not what your country can do for you. Ask what you can do for your country. My fellow citizens of the world, ask not what America will do for you, but what together we can do for the freedom of man.”

Kennedy concluded on a stirring note. “With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help but knowing that here on Earth, God's work must truly be our own.”

With that, Kennedy smiled and sat down. For Warren, the moment was splendid indeed. The day was clear, the air crisp, the snow fresh. Warren's family was healthy and growing. For two long years, his command of his Court had been tested, and he had lost his share of fights. But as 1961 opened, it was Warren on the dais with Kennedy and Johnson, with Frost. He stood face to face with America's young president and just a few feet away from his stylish wife, swearing in a new era to an eager nation. The prose of Eisenhower had given way to the poetry of Kennedy. What promise, what destiny, lay atop that snow-covered land on that January morning in 1961.

Chapter 21

KENNEDY, KING, AND A NEW ERA

JOHN F. KENNEDY TO EARL WARREN
¹

 

 

 

 

 

EARL WARREN was twenty-six years older than John Kennedy, old enough to be his father. And though Kennedy was older than Warren's own children, there was an element of paternalism in Warren's attraction to the young president and his wife. Similarly, Kennedy approached Warren with palpable deference, partly in acknowledgment of Warren's position but also partly with the refined instincts of a younger man in the presence of a distinguished elder. John Kennedy was the first American president born in the twentieth century; Earl Warren was the last chief justice born in the nineteenth. Earl Warren served peripherally in the first of the twentieth century's great wars; Kennedy fought with heroism in the second. Both were tough on foes, and they happened to share a common adversary: John Kennedy shook his head in amazement when the Republican Party missed its chance at Warren. “How can you hope for anything from them?” Jack muttered to Jackie one night in frustration. “They nominated Dewey and Nixon when they could have had Earl Warren.” Warren watched with glee as Kennedy dismantled Nixon in 1960.
²
Together, Warren and Kennedy would lead America from the residue of its eighteenth-century moral backwardness and into the fullness of its maturity. Kennedy would not live to see the journey completed, but he would provide Warren with the grace, the courage, and the friendship to see that it would, in time, be fulfilled.

On January 25, four days after he assumed the presidency, Kennedy initiated their correspondence, writing to thank Warren for administering the oath earlier that week. “I need hardly tell you that I am delighted that you are presiding over the Court during my administration,” Kennedy wrote. “I wish you all continued success in the days that lie ahead.”
³
Warren responded in kind, his note simple and sincere, stripped of all the edge that occasionally crept into his correspondence with Eisenhower. After acknowledging Kennedy's note to him, Warren wished the new president and his administration “happy sailing on the course which you so thrillingly outlined to the American people at the Inauguration.”
⁴

That cordial exchange was followed by an even more personal overture. Warren turned seventy on March 19, 1961. To mark the occasion, a group of current and former clerks arranged a surprise party that week, and Kennedy arrived unannounced to pay his respects. Warren, sensitive as always to the nuances of protocol, was touched by the gesture, which confirmed for him his initial enthusiasm for the president. “He had great affection and admiration for Kennedy,” recalled Dennis Flannery, who served as a Warren clerk in the mid -1960s.
⁵
“Kennedy,” agreed another clerk, Kenneth Ziffren, “he just loved Kennedy.”
⁶
The sentiment ran both ways. Pierre Salinger, one of Kennedy's trusted intimates, said both men confided in him their regard for the other. “The Chief Justice expressed his pleasure at the way President Kennedy had taken hold of his duties. He liked Kennedy's vitality and imagination.” And as for Kennedy, he “had a deep respect for the Chief Justice, both as Chief Justice and as a man. He was always meticulous in his dealings with him.”
⁷

The first of its Kennedy-era landmark cases came to the Court less than two weeks after Warren's birthday. Dollree Mapp and her daughter were living upstairs in a two-story Cleveland home in 1957 when police officers received a tip that a bombing fugitive was holed up in the house. On May 23, officers arrived at the home, knocked, and asked to be allowed to look around. Mapp made them wait while she called her lawyer, then told the officers she would not permit them to enter without a warrant. A few hours later, they came again to the door and this time forced their way inside, breaking down a door in the process. Mapp demanded to see a warrant. When an officer handed her a piece of paper, she shoved it in her bra. The police forcibly “recovered” the paper and roughly placed a yelling Mapp in handcuffs. Her lawyer, who had arrived amid the commotion, was denied the right to speak with her. The officers never did find their suspect or anything connecting Mapp to him; they did find a trunk in the house, however, and it contained some lurid photographs and pamphlets. Mapp said the trunk belonged to a former boarder, but Ohio law proscribed possession of “an obscene, lewd or lascivious book,” and since material roughly fitting that description was found in her house, Mapp was arrested, charged, tried, and convicted. She was sentenced to seven years in prison.
⁸

Had Mapp been tried in federal court, the evidence seized—without a warrant, while her lawyer was held at bay—would have been excluded from her trial, and Mapp would have gone free. But the Supreme Court had never held that a defendant in state court was entitled to the same protection against search and seizure as applied in federal proceedings. Warren himself had refused to extend the Fourth Amendment's protection against “unreasonable searches and seizures” to the states, ruling in the 1954
Irvine
case that the police there had behaved atrociously but that that was not a reason to let the bookmaker go free. Dollree Mapp was to receive the benefit of Warren's hard lesson in
Irvine
. Tired of inaction by others, Warren acted himself.