Justice for All (80 page)

Kennedy moved quickly, advised again by Douglas and Warren and guided by certain political imperatives. He wanted a Jew, as Frankfurter's departure left the Court without Jewish representation. He wanted a loyal Democrat and an intellect. He found all those in the person of Arthur Goldberg, the blazingly intelligent secretary of labor. Goldberg charmed the Judiciary Committee so thoroughly at his confirmation hearings—he had been well briefed by, among others, former Whittaker and Warren clerk Jim Adler—that he sailed through the Senate with just a single no vote, that of South Carolina Senator Strom Thurmond, no friend of Kennedy liberals, nor, for that matter, of Jews.
⁵¹

In the summer and fall of 1962, Kennedy did more than give the Warren Court two justices. He also gave it essential political support through the crucible of two potentially divisive cases. Senator Richard Russell of Georgia, whose distaste for Warren already was intense, led the negative response just one day after
Baker
was announced. It was, he said with an obvious nod to
Brown,
“another major assault on our Constitutional system.”
⁵²
But Russell's complaints this time would have a different effect from the one they had after
Brown
. When Southern politicians had attacked
Brown,
Eisenhower let them. This time, they found a far less tolerant president. Even as Russell was challenging the Court, Attorney General Robert Kennedy praised its work as a “landmark in the development of representative government.”
⁵³
And at his press conference two days later—the same press conference at which he would announce the retirement of Whittaker—President Kennedy himself, in response to a question, declared that the principle of votes counting equally was “basic to the successful operation of a democracy.” While the president acknowledged that political change is most tidily handled through the political process, he rejected the Frankfurter argument that the Court must avoid such entanglements. “If no relief is forthcoming” through elections and lobbying, Kennedy said, “the judicial branch must meet a responsibility.”
⁵⁴
No president had ever spoken so supportively of a controversial Warren Court decision, and Kennedy's praise was both heartening and timely, as the Court had one more blockbuster to deliver before calling it a session.

Just two months after
Baker,
on the final day of the term, the Supreme Court invalidated the short prayer that the New York State Board of Regents had authorized and encouraged its teachers to recite each morning to the children in their classrooms. Drafted specifically to be nondenominational and kept deliberately short, the prayer read, in its entirety: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”
⁵⁵

Simple and voluntary though it was, that prayer meant that young children were forced to choose between reciting their devotion to God or risking ostracism from friends and teachers. Such a choice inherently involved the government in the endorsement of God, a function that the Court now ruled was a violation of America's history and law. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain,” Black wrote for the six-member majority, including Warren. Black's opinion stressed that it was not hostile to religion but only to state sponsorship of religion. In that, it was a hallmark of his long-argued constitutional libertarianism. “It is neither sacrilegious nor antireligious,” Black wrote, “to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.”
⁵⁶

Coming so soon after the shock of
Baker,
the
Engel
case was a bell clap. Anthony Lewis, in his perceptive analysis of the decision in the
New York Times,
noted that it not only would reach public school practices across the country but also “might indicate a stricter attitude in the Supreme Court toward breaches of what it has called the ‘wall of separation' between church and state.”
⁵⁷
Just a few years earlier, the combination of two such explosive topics—in that case, segregation and Communism—had given Warren's enemies the chance to band together against him. As anger from
Engel
swept through Catholic churches and divided Protestant faiths—only Jewish leaders voiced general agreement—the Court risked a new coalition of opponents, this time of the religious right and rural politicians. Warren anticipated such a reaction, and he got it. Former Presidents Truman, Eisenhower, and Hoover all denounced the decision, as did members of Congress, from liberal Republican Prescott Bush in Connecticut to conservative Democrat Herman Talmadge in Georgia. Congress boiled for a time with constitutional amendments to overrule the Court in
Engel
. This time, however, the criticism was limited to railing. Whereas Eisenhower had allowed those opponents of the Court to dominate the conversation, Kennedy cut them off. Addressing the decision two days after it was handed down, Kennedy unequivocally stood behind it. Americans, he said, should go to church and pray there and at home, not in school. Reporting on Kennedy's comments, the
New York Times
ran its story the next day beneath the headline “President Urges Court Be Backed on Prayer Issue.”
⁵⁸

The summer of 1962 was one of transition for the Court, but it also, for Warren, was a return home to familiar contests. In California, Richard Nixon rose from the depths of his 1960 defeat by John Kennedy to reclaim his place in politics, this time as the governor of California, a step in what he was charting as his march back toward national political leadership. Nixon was, of course, a national figure in 1962 and had carried California over Kennedy two years earlier. He was the nominal leader of the Republican Party and was assessing his options for a return to power. In that calculation, the California governorship offered considerable advantages, giving him a platform to demonstrate executive ability and returning him to his base, where he had never lost an election. All that appeared to stand in Nixon's way was the incumbent governor, Pat Brown, whose record was viewed by Republicans as sufficiently uninspired to provide an opportunity for Nixon.

Warren's position on the Court precluded his playing any overt role in the 1962 campaign. But no one close to him could doubt where his sympathies lay. Their different parties notwithstanding, Pat Brown was an heir to Warren's legacy of California centrism. Initially a Republican who switched to the Democratic Party during the FDR years, Brown was a builder, a moderate, a governor who openly modeled his administration on Warren's example. He credited himself, immodestly but probably truthfully, with helping to temper some of Warren's early conservative instincts. “It may be a conceit on my part, but I do think I influenced him to some extent,” Brown confided to Carey McWilliams after Warren's death.
⁵⁹
Warren and Brown also had grown close personally, overcoming early turf disputes—Warren's Crime Commission claimed some of the field in California law enforcement that Brown understandably saw as his domain—and settling into what Brown described as “leisurely talks” during the Warren gubernatorial years when Brown was attorney general.
⁶⁰
Warren liked Brown and appreciated him—most men did, as Brown was an avuncular and warm personality. So in 1962, Warren set out to do all he could, within the bounds of his office, to secure Brown's election in California.

First was the matter of the Warren family. So long a mainstay of Warren's political image in California, the sunny boys and girls, now grown, remained a public window into his beliefs, and they, unlike him, could support anyone they chose. So it was with considerable fanfare that Earl Warren, Jr., announced that he had switched his registration from Republican to Democrat and was supporting the candidacy of Pat Brown. Brown, Earl Jr. recalled years later, “was carrying on my father's traditions. . . . And then, of course, [there was] Nixon. He was no family friend.”
⁶¹

Earl Jr. did more than just endorse. He campaigned aggressively for the governor, appearing across California and taking the Brown campaign into Republican areas where Brown himself would have been coolly received.
⁶²
And everywhere Earl Warren, Jr., appeared, he was assumed to carry his father's blessing. Reinforcing that, Warren himself pushed the boundaries of judicial propriety by going on a widely noticed hunting trip with Brown in late 1961 and, later, by praising California's development under Brown's leadership. In Oakland for the dedication of a new federal courthouse, Warren complimented California's progress. “I believe that the standard of law enforcement in this State is greater than any other State in the union.”
⁶³
Brown himself was scheduled to be at the dedication, and one story noted that he was there. He was not pictured in the photograph, however, so he may have missed that opportunity to make a joint appearance with the chief justice and California icon.
⁶⁴
Nevertheless, Warren's message was received—and only was reinforced by a late-campaign resurgence of the debate over Nixon's role in the 1952 Republican Convention. Warren encouraged the assumption that he was supporting Brown by confirming it to reporters off the record. Privately, Warren was even more outspoken. “Nixon,” he told one reporter after securing a promise that the two were off the record, “has to be stopped.”
⁶⁵

Nixon formally filed his papers the same day the Warren Court announced its decision in
Baker v. Carr
. He entered the race a heavy favorite. But he squandered his lead through the spring and a divisive Republican primary, during which, ironically, he paid a political price for denouncing the Birch Society. By Election Day, Nixon knew he had lost, and he took it sourly. With his career in tatters, Nixon blamed the press corps:

 

That crude, self-pitying display captured what so many, especially Earl Warren, had learned to loathe about Richard Nixon. Warren thoroughly enjoyed it. Later that same week, Warren and President Kennedy were aboard
Air Force One,
traveling together to the funeral of Eleanor Roosevelt. Near the front of the aircraft, Warren saw Kennedy and beckoned him over. When the president sat down, Warren pulled from his pocket a handful of clips detailing Nixon's self-immolation. Mary McGrory, a
Washington Star
correspondent on board that day, watched as the president of the United States and the nation's chief justice sat together, reading clips to each other and “laughing like schoolboys.”
⁶⁷

 

 

ONE OF THE DUTIES of the chief justice's clerks is to sift through the thousands of petitions filed each year by prisoners seeking review of their cases. Warren's clerks read those petitions and summarized them in short memos to the conference. The memos were typed with carbon copies, and the copies thus were known as “flimsies.” The clerks recommended dismissal of the vast majority of those petitions, but there were those that demanded attention. One arrived at the Court in 1962—the handwritten petition of Clarence Earl Gideon, a Florida man convicted of breaking and entering a pool hall in Panama City. Too poor to afford a lawyer, Gideon had asked the state to give him one, but it had refused. Florida only supplied indigent defendants with lawyers when the defendant faced the death penalty or when “special circumstances” required it (an illiterate defendant, for instance). Acting as his own lawyer, Gideon was convicted and sentenced to five years in prison for stealing wine, cigarettes, and less than $100 in cash.
⁶⁸
The justices took the case, recognizing that it offered them an opportunity to consider whether the right to counsel, already provided in federal trials, extended to the states as well.

Since Gideon had no lawyer to make that argument for him, Warren got him one. Abe Fortas—graduate of Yale, protégé of William Douglas, friend of Lyndon Johnson, founder of a distinguished Washington law firm—was considered in 1962 nothing less than the best lawyer in America. He accepted Gideon's case, and Fortas's argument to the Court on January 15, 1963, ranks with the best ever presented in its chamber, standing with the graceful logic of Robert Jackson, the orations of John Davis, and the earnest, earthy conviction of Thurgood Marshall. Fortas's deep, calm voice curled around carefully chosen words. Throughout, he addressed the question posed to him by the Court when Warren asked him to take the case: Should the Court overrule its own precedent, established in 1942 with a case known as
Betts v. Brady,
and force states to appoint lawyers to indigent defendants in all cases, not just those where special circumstances required it? Fortas might have argued that Gideon deserved to go free because the special circumstances of his case commanded that he be given a lawyer, but Fortas had found no such circumstances, and so he forced the Constitutional question: