Justice for All (70 page)

 

 

 

 

 

IN 1986, long after Earl Warren was gone, Justice Brennan reflected on his then nearly three decades with the Court and identified one of its enduring truths: “In an institution this small, personalities play an important role. It's inevitable when you have just nine people. How those people get along, how they relate, what ideas they have, how flexible or intractable they are, are all of enormous importance.”
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By virtue of background and inclination, Warren grasped that essential fact of Supreme Court leadership. Indeed, with the possible exception of John Marshall himself, no chief justice ever sensed it better. From the first moments of his arrival, Warren worked to create a harmony that would ease the work of the Court and erase the Vinson legacy of discord. His first ally was Black. His most reliable would prove to be Brennan. But his main obstacle, almost from the beginning, was Frankfurter. By the mid-1950s, their deepening mutual distrust defined much of Warren's working life; by the end of that decade, it had nearly cost Warren the effective leadership of his own Court.

There probably was no avoiding a break between two such strong-willed and diametrically different men as Warren and Frankfurter. Warren was the son of Methias, raised in a restrained, Protestant, Swedish home, one with little open affection or acrimony. He spent his youth among those who respected deeds over words and he came to prominence in the compromises and calculations of elected politics. Frankfurter was a Jewish immigrant raised in New York City, steeped in the cultural milieu of verbal jousting and close textual debate. Frankfurter was a brilliant professor used to lecturing students and expecting their attention. Warren was a master at getting others to do his bidding by persuasion, not dominance. Frankfurter's judicial self-abnegation was a considered response to years of contemplating the appropriate role for the judiciary in the separation of powers. To Warren, it looked suspiciously like an excuse for avoiding hard decisions. Warren's skill and enjoyment at making those decisions was just as much a product of his professional upbringing as Frankfurter's belief in restraint was of his. And yet to Frankfurter, Warren looked suspiciously like a thickheaded pol.

With so much to separate them, it was unsurprising that after the initial euphoria of
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Frankfurter's appreciation for Warren entered a steep downward spiral. At first their disagreements flared in technical fields. In 1957, for instance, the Court tackled the second antitrust lawsuit involving the DuPont corporation that had come before it in two years. The year before, Warren had joined the dissenters when the Court found that DuPont had not violated antitrust laws in its cellophane business.
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Now the issue before the Court was one of ownership; DuPont had acquired 23 percent of General Motors stock, and the government argued that such a large stake created an illegal monopoly, since DuPont was a General Motors supplier, not merely an investor. Always suspicious of big business—Warren still nursed one grudge from his battles with big oil in California and an even older one against the Southern Pacific—the chief justice announced at the first conference on the case that he believed DuPont had acquired its share in General Motors “for the purpose of controlling a channel for the outlet of its products.”
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That, Warren said, was enough to make it illegal under Section 7 of the Sherman Antitrust Act. Frankfurter objected to Warren's novel and expansive reading of the act, and wrote a dissent that accused the majority of disregarding the “language and purpose of the statute.”
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That case was part of a developing pattern in the conflicting jurisprudences of Frankfurter and Warren as applied to business. Remembering his own railroad labors as well as the toll such labor took on his father and others, Warren searched for ways to relieve employees of burdens and to shift those burdens to companies, particularly big ones. Ignoring Frankfurter, Warren beginning in 1956 inserted the Court into a series of cases involving individual workers and their claims against their bosses under the Federal Employers Liability Act. Each time, Warren urged the Court to give benefits to the workers at the expense of their employers. At first, the justices, even Douglas, were puzzled, but they soon saw the cases as an expression of Warren's life and humanity. “He knew enough from first-hand experience to see the human values at stake in these FELA verdicts,” Douglas noted.
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Frankfurter viewed Warren's commitment less charitably. By 1957, he was so fed up he dashed off an intemperate note to Harlan:

 

With Frankfurter, disagreement almost always slid into contempt. And in this case that natural inclination was egged on by one of those he most admired, Judge Learned Hand. Hand was a great judge, inclined like Frankfurter to see his duties in terms of self-restraint. That put him squarely at odds with Warren's sense of purpose, and as Hand took the measure of Warren he did not like what he saw. On January 1, 1956, he wrote to Frankfurter as part of their long, mutually admiring, and candid correspondence. Hand praised Warren's statesmanship and acknowledged that his leadership was helpful in the office of the chief justice. “But somehow,” he added, “deep in my belly, I do long for more distinction.”
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By October, the month that Brennan arrived, Hand could not restrain himself even that much:

 

A mutual friend of Hand's and Frankfurter's, Hand added, had taken to referring to Warren by a new nickname: “That Dumb Swede.”
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Frankfurter did not adopt the nickname in that exchange of letters, but by the end of the decade he was using it with his clerks, encouraging them to distrust and disparage the chief justice.
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In unguarded moments with friends, Frankfurter made clear that he regarded Warren as a fool. Writing to Harlan, for instance, Frankfurter described one of Warren's opinions as “crude, heavy-handed, repetitive moralizing,” and described the experience of reading it as akin to “eating rancid butter.”
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Warren was a big and successful man. He came to the Court with a public career far broader than Frankfurter had accumulated. He was in no mood to be patronized. But Frankfurter lectured and lobbied, convinced that he could lead Warren by imposing his superior intellect on the mere politician who now served as his colleague and chief. Early on, the chief justice grew suspicious of Frankfurter's attempts to woo Warren's clerks; Warren gently but clearly directed them to cut off contact with Frankfurter.
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In conference, Warren suffered Frankfurter's lectures with lessening patience. “All Frankfurter does is talk, talk, talk,” Warren blurted at one point. “He drives you crazy.”
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For the most part, Warren suffered Frankfurter, but occasionally he lost his temper. In conference one day, Frankfurter was snickering and passing notes as Warren spoke. Warren blew: “I am goddamn tired of having you snicker while I'm talking. You do it even in the courtroom and people notice it.” Frankfurter denied it, but Warren dressed him down anyway, much to Douglas's delight.
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Frankfurter was a distraction, but not enough of one to keep Warren from pursuing an amicable Court. Warren built his alliances upon common purpose and mutual regard. Until illness and philosophical drift helped undermine their relationship in the 1960s, Black was Warren's most important mentor, the guide who offered him a route toward judicial leadership and a genial host who provided both Earl and Nina Warren warm evenings in his Arlington home. In 1954, the two families shared Thanksgiving, the first of many holidays that would bring the Blacks and the Warrens together. Earl and Nina brought Virginia and Honey Bear; Hugo was accompanied by his daughter, Josephine, who lived with the justice for a time after his wife died.
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“Hugo was a great friend to my father, and we loved Jo Jo,” Virginia recalled decades later.
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At the Court, Warren relied on Black, often meeting with the senior justice just before and after Court conferences to plot strategy for those vitally important meetings. Theirs was a trusting friendship. Black felt free to make suggestions about which justices might best handle certain cases, and Warren usually concurred.
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That gave Black enormous influence over the Court. And as Warren came to appreciate Black, it drove him still further from Frankfurter, personally and philosophically. For not only did Black offer gentility and friendship, he also presented Warren with a theory of judging that allowed Warren to be the chief justice he imagined being. Eventually, Warren would move even beyond Black, but in those early years, with Frankfurter sniping and condescending, with Black cajoling and entertaining, Warren slid easily under Black's wing.

Among the other justices, Warren tended carefully to Clark and genuinely enjoyed his bright spirit. Warren and Clark would duck out of Washington for quick hunting and fishing trips, and the two enjoyed swapping stories from their old days. For altogether different reasons, Warren developed a fondness and appreciation for Harlan, whose dignity impressed him, even if Harlan's politics were of a different sort. When Harlan suffered from health problems, Warren tended to him—late in life, Harlan's eyesight began to fade and he contemplated retirement. Warren persuaded him to stay and arranged for him to have an extra clerk to help with reading.
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And yet even within those binds of collegiality and admiration, Brennan would always be special. He was different from Black, less a mentor and more a friend. And he was closer to Warren philosophically than any other member of the Court. Their bond began slowly but developed in the full richness of a lasting friendship, one that combined political solidarity with mutual reliance. From Warren, Brennan received key opinions and important counsel; in Brennan, Warren found a master of legal writing who could translate Warren's leadership into solid legal doctrine. It is one of American history's amusements that these two pillars of judicial activism, who hunted down injustice in order to toss it from the Constitution, were both appointed by a president who had no sympathy whatsoever for that style of judging.

For the balance of the Court, Warren attempted to forge unity by good cheer, hard work, and fair management—he distributed opinions evenly, spreading the workload among them. His own chambers were calmly professional, reminiscent of the governor's office, though on a much smaller scale. Two women—Margaret McHugh and Maggie Bryan—handled secretarial duties and scheduling, while his clerks, all of them men, did legal research and drafting. Unlike most of the justices, whose clerks worked out of adjoining offices, Warren's worked on a separate floor (space did not allow them to work next to Warren's chambers). They met frequently with Warren, however, sometimes as a group, other times individually, to discuss opinions or memoranda. Although the workweek was focused, Warren treated his clerks to lunches most Saturdays. They would generally work in the morning and then head for lunch at one of Warren's clubs or a local restaurant. There, Warren relaxed, as his clerks would politely draw him out on his favorite subjects—California and politics. Warren liked to talk on those easy afternoons. One clerk, Doug Kranwinkle, introduced him to vodka gimlets, and Warren would sometimes enjoy a drink or two as the afternoon wore on.
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He was garrulous and comfortable, secure in the sanctity of his conversations with these close and devoted aides. And yet Warren maintained a reserve. He was welcoming but not casual, and he was deeply protective of the Court.

Once, when the Court clerks voyaged to the Justice Department for a lunch with Attorney General Robert Kennedy and ended up insulting their host, Kennedy retaliated by writing an article in which he ridiculed them. Warren, appalled, upbraided the clerks by reminding them that they did not exist as a group—that their allegiances were to their individual justices. All future lunches, he decreed, were to take place at the Court, not elsewhere. Chastened, the clerks agreed.
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Nina rarely joined Warren at the office or with his clerks; few of those who served Warren over the years felt they got to know Nina well. At home, however, she continued to arrange the Warrens' lives. The children were, of course, gone by the late 1950s, but they visited often, and Nina and Earl annually returned to California. In Washington, Nina performed the social graces expected of a chief justice's spouse—she presided over events involving the Court wives, and she maintained social contacts with other Washington figures. Her cakes became her signature, the recipes captured in Washington cookbooks, and her delivery honed to an art. Every January, Nina bought scores of boxes, which she stacked near the kitchen. As she baked, she packaged and delivered. Neighbors at the Sheraton-Park were frequent recipients, but Nina doled out cakes to friends and luminaries alike. When Richard and Pat Nixon traveled overseas in 1958, Nina sent their girls a pair of cakes, one with pink icing, the other with chocolate.
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