Justice for All (102 page)

 

That argument spoke so clearly to Warren's legacy at the Court that he could hardly have refused to accept it. The lawyer for the House of Representatives countered that under the Constitution, only the House could set its rules, that its right to govern itself was not subject to review by the courts. What, then, Warren asked, would happen if one political party someday captured a two-thirds or three-fourths majority in the Congress and, one by one, removed members of the other party from the House, finding that their views posed a threat to the nation? That would be wrong, the lawyer conceded, but reviewable only if the actions constituted “utter perversions.”
³⁸
When the lawyer argued that the House could go so far as to exclude any member by reason of his race, Warren could not disguise his indignation: “What,” he asked, “could be more perverse than that?” The audience laughed. After a break, the lawyer reconsidered and admitted that perhaps such an exclusion would be so perverse that it would justify the Court's intervention. Warren's point was made.
³⁹

Knowing that the case turned on an issue no less grave than the relationship between the Court and the Congress, Warren assigned the opinion to himself. For its eighty-six footnotes alone,
Powell v. McCormack
was a departure from Warren's characteristic terseness. But in its conclusions, it fulfilled the important mandates of Warren's tenure. It defended democratic principles. It upheld the Court's power to act as protector of the Constitution. And it found in favor of black voters and their right to pick their representatives, however flawed those representatives might be. “It is the responsibility of this Court to act as the ultimate interpreter of the Constitution,” Warren wrote. That was a duty Warren had claimed in
Baker v. Carr
. He demanded that others yield to it in
Cooper v. Aaron
. He embraced it in a long line of criminal procedure cases—from
Mapp v. Ohio
to
Miranda
. He would not stop now, not at the end. In this case, the Constitution was clear and the Court's duty was as well. Before circulating the opinion to the brethren, Warren took it to Brennan to read. Brennan approved. Warren was elated. “OK, boys,” he told his clerks. “We got it.”
⁴⁰
When the Court handed down its ruling, Congress bent to its order, just as so many others had been forced to during Warren's service.

While Warren was at work on the
Powell
opinion, the Nixon White House settled into place, and soon was at odds with the Court. On March 12, Jack Landau, whom Brennan had known for some time because Landau covered the Supreme Court for the Newhouse newspaper chain, called Brennan's chambers and told his secretary that he had an urgent matter to discuss with the justice. Brennan invited him over and only then realized that Landau was no longer a reporter but was working as public information director at the Justice Department. Once he arrived, Landau nervously explained to Brennan that Attorney General John Mitchell had sent him to express concern over a pair of wiretapping cases decided a few days earlier by the Court. Those cases required the government to turn over to defendants evidence seized through illegal wiretaps in order to make clear that the defendant was not being tried with illegally obtained evidence.
⁴¹

The ruling had triggered alarm at the Justice Department, Landau told Brennan, because officials there were concerned that it would force the government to reveal its extensive wiretapping operations directed against foreign embassies in Washington. All of this was understandably perplexing to Brennan, who told Landau he had never heard of such wiretapping and who asked what Landau expected the Court to do about it. When Brennan told Landau he would have to share the information with Warren, Landau expressed terror at the idea of confronting the chief justice. Brennan insisted, and when they entered Warren's chambers, Landau was so nervous he could not sit down. The two relayed for Warren the scenario, and Landau awkwardly emphasized that the Department of Justice recognized its responsibility for the situation and would “do anything within reason to avoid congressional reaction against the Court.”
⁴²
That sounded suspiciously like a threat, but Warren did not bite. Instead, Warren told Landau that if Justice wanted to address the problem, it could file a motion for rehearing or otherwise petition the Court officially. Landau then retreated back to his office, leaving Warren to brood on what he called “this outrageous attempt to influence a Court action.”
⁴³
Warren contemplated a public response to upbraid the administration for its attempt to influence the Court's approach to wiretapping cases, but worried that it would backfire and be seen as “vindictiveness and reprisal” against a president who had so prominently allied the Court with the “criminal forces” in American life. In later years, Warren wondered whether he had been right to stay quiet as the Nixon administration became increasingly infatuated with wiretaps. Only in his memoirs did Warren disclose the incident, noting edgily that it might be of public interest in light of “the Watergate episode and related cases.”
⁴⁴

Nixon knew he would be replacing Warren at the end of the term, but when Mitchell saw an opportunity to turn one vacancy into two, he took it. The object this time was Fortas, whose confirmation hearings had opened the door to questions about his integrity, and whose withdrawal from the contest had not closed it.

Reporters continued to dig, encouraged by the Nixon White House. The forces pressing on Fortas crested in May with the publication in
Life
magazine of a story exposing some aspects of a deal the justice had entered into with Louis Wolfson, a businessman whose activities had drawn the interest of the SEC and who ultimately would serve a prison sentence for assorted stock manipulation charges.
⁴⁵
Wolfson had befriended Fortas, and, unbeknownst to Warren or the other justices, had agreed to pay Fortas $20,000 a year to act as an adviser to his family foundation. That was potentially problem enough, but to make matters worse, the contract with Fortas was for life and specified that should Fortas die, the payments would continue to be made to his wife, Carol Agger.

After agreeing to the deal, Fortas had reconsidered it and had returned the initial $20,000 check. Because he had done so in the same year he took it, Fortas owed no taxes on the money. Moreover, Wolfson later insisted that Fortas had never intervened with any government official on his behalf during his criminal trials. If true, that too would have meant that Fortas did nothing illegal. In political terms, however, the disclosure was devastating, especially coming on the heels of the hearings that highlighted questions about Fortas's ethics and his personal greed.
Life
magazine published its story about Fortas's relationship with Wolfson on May 4 (the magazine was dated May 9, but it was available five days earlier). The story did not disclose the lifetime contract, but the IRS subpoenaed that document the same day. By midnight, it was in the hands of Attorney General Mitchell, who recognized what he had and set out to use it to force Fortas from the Court.

Mitchell's next step was a curious one, but it proved effective. He asked to meet with Warren, and Warren, who just weeks earlier had been so offended by the White House's attempt to reach the Court informally regarding the wiretapping case, strangely agreed. Warren may have been merely curious, or he may have seen little danger in the contact, since it involved no pending case before the Court; still, it was a puzzling lapse of judgment for a justice so wary of Nixon and so committed to the form as well as the substance of propriety. Whatever drew Warren to the meeting, he left it with the sure knowledge that his Court was about to unravel. The two met in Warren's chambers on May 7, and Mitchell presented him with a copy of Fortas's contract, one that bound him for life to a criminal. After Mitchell left, Warren turned to Margaret McHugh and uttered the obvious: “He can't stay.”
⁴⁶

Warren went directly to Brennan's chambers after Mitchell left and consulted with Brennan and Stewart before meeting with Fortas that afternoon.
⁴⁷
Over a tense weekend, the clamor for Fortas's resignation grew, and with Douglas out of town, Fortas oddly sought guidance from Black.
⁴⁸
By Monday, reporters had learned of the lifetime contract—Mitchell undoubtedly was the source. The justices met in conference that Tuesday, and Warren told them the details of the contract that Mitchell had given him. They sat, stunned. Fortas said little.
⁴⁹
He resigned the following day.

SECURITY AND FREEDOM require each other and yet pull against each other. They are intertwined and inextricable, and for Warren, they stood as markers in his principled quest for a good nation. As a young man, Warren opted for safety, first in the IWW prosecutions in upholding California's syndicalism laws, and later, more tragically, in the internment of Japanese-Americans during the early, confused days of World War II. But as he moved to end his service to his nation, Warren was given a rare luxury, the opportunity to reconsider his youth in the full light of his life.

This time, the defendant convicted of violating a criminal syndicalism law came from Ohio, whose statute was virtually identical to the California law under which Warren had won a conviction against Taylor and had sustained it against Whitney. This time, the defendant was a Ku Klux Klan leader. He and like-minded figures had gathered on an Ohio farm to proclaim their hatred of blacks and Jews and to announce plans for a march on Congress. Addressing his fellow Klansmen with cameras rolling, the defendant, Clarence Brandenburg, spoke from beneath a red hood and issued a vaguely threatening, illiterate promise: “We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.”
⁵⁰

John Taylor had said and done far less to warrant his criminal conviction in 1920, but now the man who prosecuted Taylor for threatening security rose to the call of freedom. “We are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action,” the Warren Court ruled. “Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California . . . cannot be supported, and that decision is therefore overruled.”
⁵¹
Douglas and Black chimed in with their harder-line defenses of the First Amendment, but in this case there were no dissents.
Brandenburg,
like so much of the Warren Court's best work, was unanimous, though this time its unanimity was tinged with sadness. Fortas was the author of
Brandenburg,
but he was gone by the time it was decided. The Court decided
Brandenburg
by a vote of 8-0.

Brandenburg
completed the Court's long journey toward the embrace of radical speech: from
Dennis,
where Douglas sputtered his disapproval of the Smith Act but lost to a majority willing to punish the teachers of Communism; to
Whitney,
where Brandeis scolded men who had “feared witches and burnt women” but where the Court had upheld Whitney's criminal conviction, a conviction won by Warren's colleagues in the Alameda district attorney's office; and now, at last, to
Brandenburg,
where the Court declared that speech triumphed over fear.

Brandenburg
and
Powell
were handed down a week apart. With them, Warren's work as chief justice was finished. He did not give any sign of unhappiness about his impending retirement, but as the date had drawn closer, his grandson Jeffrey urged him to reconsider. Jeffrey, then a college student at Warren's alma mater, was growing up in a nation at war and at an enraged university. He begged his grandfather to stay with the Court, not to yield his position at such an urgent moment. Warren's mind was made up, but with just a week left in his tenure, he paused to write a note in his own hand to explain himself to his grandson. “We are passing through one of the most troublesome times of human history,” the chief justice wrote his grandson:

 

Slavery, he reminded Jeffrey, had been abolished more than a hundred years earlier, but “the badge of it is still on millions of our citizens, poor souls.” Without crediting himself, Warren noted that there, at least, the conscience of the nation had awakened. “Now they can vote everywhere in the nation, they can attend non-segregated schools as fast as law can push human prejudice, the Jim Crow vehicles of travel are of the past, they can be served in all hotels, restaurants, theaters and other places of public accommodation such as parks, beaches and other places of recreation.”