Justice for All (103 page)

“So, Jeff,” Warren continued, “we now ask ourselves, what should we do about all of this?” For Warren, the answer fused his lifetime of patient, deliberate action with his increasingly deep faith in young people. “I really believe, Jeff, that what our country needs now is the youth of America—not to destroy what is but to build—to insist on righting the wrongs of society and during its years of stewardship implement the ideal of Lincoln for ‘a government of the people, by the people and for the people' so that it will not ‘perish from this earth.' ”
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Warren closed by thanking Jeffrey for the faith and confidence that spurred his request that his grandfather stay on. No, Warren said, he would not stay at the Court. But as Warren prepared to go, he understood that he left his values imprinted on his nation, in its laws, and in its young people. Nixon and the war might threaten those values, but Warren retired with the conviction that they were consistent with the nation's past and worthy of its future. He left the Court as he had arrived—a patient optimist, conscious of his country's failings, confident in its ability to right them.

On June 23, 1969, Warren handed down the final decisions of the Warren Court. Fittingly, they prohibited police from ransacking homes during searches, protected defendants against double jeopardy, and restricted courts from handing out stiffer sentences to defendants who were ordered retrials. Then Warren gazed down from the bench to the counsel table, where a lawyer with little experience in the High Court patiently waited his turn. The lawyer, President Richard Nixon, then rose to the podium and spoke, becoming the first sitting president ever to address the United States Supreme Court. “Mr. Chief Justice,” Nixon began, “may it please the Court.”

Nixon wore a cutaway coat and tails, the traditional dress of government lawyers appearing at the Supreme Court bar. Speaking without notes, he recalled his two arguments in the Supreme Court—both in the
Hill
case—and joked that the only ordeal more challenging than a presidential press conference was a Supreme Court argument. Nixon paid tribute to Warren's long service, a gracious act toward an old foe. “Will Rogers, in commenting upon one of the predecessors of the Chief Justice, Chief Justice William Howard Taft, said that ‘It is great to be great. It is greater to be human,' ” Nixon recalled. “I think that comment could well apply to the Chief Justice as we look at his 52 years of service.” Nixon then remarked on the continuity and change that tug in opposing directions across the history of the Court and nation—that the Warren Court gives way to the Burger Court, that the demand for progress pulls against the dignity of order. “It was always that way; may it always be that way,” Nixon concluded. “And to the extent that it is, this nation owes a debt of gratitude to the Chief Justice of the United States for his example.”
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Warren thanked Nixon for his grace. “[Y]our words,” he said, “are most generous and are greatly appreciated, I assure you.” Both men knew of their many feuds and disagreements, and they knew that those around them knew them as well. For a moment, they put them aside to honor together the traditions they jointly admired. But old habits are hard to break, and the chief justice took a moment to point out to Nixon, “because you might not have looked into the matter,” that the Court is different from Congress or the presidency. Presidents, members of the House, and senators sit for terms, and each presidency, each new Congress, is a distinct entity. The Court, by contrast, is a continuing body, its membership developing over time, rooted in “the eternal principles of our Constitution,” but changing as well. “We, of course, venerate the past,” Warren said, “but our focus is on the problems of the day and of the future as far as we can foresee it.”
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Warren hailed the Court's devotion to service, its fractious virility, its embrace of controversy.

“So,” he concluded, “I leave in a happy vein.” He then called for Warren Burger, who joined the chief justice on the bench and took the oath. There was no applause. None is permitted inside the Court. Warren left to silence.

His departure was a national event and an intimate parting. The nation celebrated his service with a tribute on the Mall. The event was held at the Lincoln Memorial, a fitting reminder of the course of freedom that Lincoln had launched and Warren had steered to triumph, and the same spot where Martin Luther King had electrified America in 1963. The brethren marked Warren's retirement with a reunion of the Court's extended family. The widow of Justice Jackson attended; the Whittakers could not, but chipped in for the gifts. Arthur Goldberg, then a private lawyer but always a member of the brethren, decided at the last minute to come, and arrived from New York. On the evening of June 6, just before the term ended, the justices, current and retired, and their wives merrily boarded the S.S.
Sequoia,
the presidential yacht, for an evening to toast their departing chief. All rose to their traditional roles—Black, the differences with Warren of recent years put aside for the night, acted as the MC, the Court's voice. Elizabeth Black, the lovely wife of the senior justice, presented Nina with a gold bracelet the justices had engraved to the “First Lady of the Judiciary, 1953-1969.” Bill Douglas gave the chief his gift, an elaborate Winchester shotgun, a muscular reminder that Warren's liberalism, like Douglas's, was never at the expense of his forcefulness. Brennan, of course, was responsible for pulling together the majority—he solicited the contributions for the gifts and oversaw planning for the party.
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Warren's move to retirement was not an easy one. He had been in active, public life for more than half a century, moving from courtroom prosecutor to district attorney to attorney general to governor to chief justice with almost no interruption. For fifty years, every change of job had expanded the range of his intellect and influence. Now, for the first time in his life, Warren stepped back from power. And as he did, he lost a friend. Drew Pearson had been a confidant and traveling companion, a liaison to the White House and a shipmate on cruises. Warren admired Pearson's pluck and sophistication. Pearson, in turn, revered Warren, and in 1967, Warren agreed to a long series of interviews in which he was unusually candid with Pearson. Pearson had hoped to write a biography of Warren, and had prepared preliminary drafts of early chapters. That Warren would entrust Pearson with such a job was evidence of their closeness. But Pearson would not live to see the book finished. He was in and out of the hospital that August, and Warren visited him on August 21. Four days later, Warren left for a conference in Bangkok. While there, he learned that Pearson had died.
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When he returned home, Warren was given an office at the Court and allowed to hire one clerk a year, but that seemed, at least at first, more than he could use. He kept a light schedule for the most part, continuing to come to the Court every morning, arriving usually around nine-thirty, eating lunch there and then going home in the early evening. He spoke often to groups, and pressed his clerk into speechwriting service. And he and Nina traveled frequently, leaving his clerk with little to do in his absence.
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Although Warren had made use of the clerks assigned to retired justices, he himself would not allow his annual clerk to work with Burger, whom Warren distrusted. As a result, some of his clerks in retirement found the experience trying—they were assigned to a great man, but had little to do.
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The principal focus of Warren's retirement, it seemed when he left the Court, was to produce a memoir. Warren had announced his intention to write such a book and had contracted with Doubleday to produce one, but as he tried to settle into the work, it became less an opportunity than a source of sullen obligation. Warren was not a natural memoirist. His view of the Court's sanctity prevented him from revealing the deliberations behind important decisions, and his reticence to examine his past made him an unlikely source of new insights into his own life. And so he found diversions. Rather than focus on his autobiography, Warren produced an extended essay on the state of American liberty. Titled
A Republic, If You Can Keep It,
it included a few thoughtful passages, but the best that can be said of it is that it was short. Indeed, it added little to his note to Jeffrey Warren, though at least it provided a dignified venue for Warren to contribute his ideas on the state of the country and allowed him the opportunity to attach two appendixes: the Constitution and the Declaration of Independence.

In his latter years as a justice, Warren had become taken with an organization promoting the cause of World Peace Through Law, whose ideals first captivated Warren when he met with the group at an Athens conference in 1965. Its advocacy of civil rights appealed to Warren's sense of purpose and its international reach broadened his vision of the law. He spoke at the group's regular conferences—Geneva in 1967 and 1968, Bangkok in 1969. Those appearances only solidified the far right's distrust of Warren. The
Biographical Dictionary of the Left
sneered at the “pacifist cause of ‘world peace through world law' ” along with Warren's other internationalist interests, which the dictionary lumped together under the headings of disarmament and “so-called civil rights.”
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World Peace Through Law drew Earl and Nina Warren overseas, and their travel schedule in his early retirement remained busy. He and Nina visited friends and relatives, often traveling to California, where they would make their base at Ben Swig's Fairmont Hotel but work in trips to Jim in St. Helena, Earl Jr. in Sacramento, Bobby in Davis, and Honey Bear in Los Angeles. Warren's love of sports never flagged. He pulled for the Miracle Mets in 1969 and happily saw them capture the World Series. When the Redskins made it to the Super Bowl in 1973, Warren flew to Los Angeles with Edward Bennett Williams and his journalistic-politico entourage; that time, they watched in disappointment as the Redskins lost to the Miami Dolphins.
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WARREN CHAFED at his exclusion from the center of national life. He displayed a yearning for politics, as well as a sharpening testiness for opponents, real and sometimes imagined. In 1971, Burger convened a study group to examine the workload of the Supreme Court and to recommend ways to lighten it. Warren, smelling a rat and perhaps a bit overeager for a fight, lit into the proposal. One recommendation of the study group was the creation of a new National Court of Appeals that would screen petitions for the Supreme Court, denying those that appeared frivolous and passing along only those that, in its judgment, warranted consideration by the nation's highest Court. Warren deplored the idea, and his doubts were fueled by his belief, which Brennan encouraged, that Burger was carrying the proposal for Nixon.
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Warren stewed for months as the panel worked, and took offense that rather than invite him to appear before it as a whole, it sent Peter Ehrenhaft, a former Warren clerk, to interview him one-on-one.
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Warren had seen his share of attacks on the Court and had seen jurisdictional debates mask deeper challenges to its autonomy and authority. This proposal was more innocently crafted, but even the proposed court's name, the National Court of Appeals, recalled the National Court proposal that Warren had helped squelch in 1963. This time, once Warren concluded that Nixon was behind it, he could not see it as anything other than subterfuge. Warren sent a letter to his clerks—clearly intended to find its way to the press—denouncing the proposal and Ehrenhaft's involvement in it. Then, when Warren at last spoke out publicly about the proposal, he rejected it with unmistakable force: “I believe it is obligatory not only to speak out to advance the efficiency of the Supreme Court's processes but also to warn against those proposals that, under the guise of procedural reform, would cause irreparable harm to the prestige, the power and the function of the Court.”
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Substantively, Warren was right. The National Court of Appeals envisioned by Burger was never approved, and still, in the years after Burger left, complaints about the Court's workload subsided—the result of the replacement of the dithering Burger by Rehnquist, a respected and efficient manager of the Court's business. Yet Warren's vehemence exceeded the issue. A few months after first unloading his anger against the proposal, he gathered with his clerks for their annual toast to him in Washington. Those had always been happy occasions, a reuniting of the fraternity of young men—now many growing old themselves—to share their devotion to their chief, who had launched and inspired their careers. Always in black tie, with strong cocktails and a good meal, the event was infused with the male camaraderie that Warren had cherished his whole life. He often spoke at length, good-naturedly fielding questions with the assurance that these were his men, that no breach of loyalty or confidence was even imaginable. This year, however, Warren stood before the clerks and turned on a tape recorder. It played a recording of a recent speech he had made in which he ringingly opposed the Court reform proposal. When the screed was over, Warren turned off the machine and asked Ehrenhaft whether he cared to reply. The younger man stammered out a few words, declining as the rest of the room sat quietly, embarrassed for Ehrenhaft, mystified by Warren.
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Warren's attack on the Court reform package doomed it, and it stood as a reminder to Burger that his own prestige was infinitesimal in contrast to that of his predecessor. And indeed, the early 1970s were full of reminders of Warren's esteem, as the Warren Court pivoted from its place as object of controversy to one of lionization and nostalgia. Warren himself was regularly included in any short list of great justices, sometimes joined only by Marshall and Charles Evans Hughes when ranked against history's other chief justices. Warren's eightieth birthday, in 1971, brought another round of praise and good wishes. Douglas dropped his old friend a line, and Warren replied with good cheer, recalling from decades earlier a talk that Herbert Hoover had given at the Bohemian Grove on the occasion of his eightieth birthday. “How does it happen that everyone now says such nice things about you when a few years ago they were throwing rocks at you?” one guest asked the former president, Warren recalled. “He answered, ‘I just outlived the bastards.' ”
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One can easily imagine the cackle in Douglas's chambers.