Justice for All (78 page)

Soon after the initial argument, Warren led the conference on
Mapp,
and assigned the opinion to Clark, who had grudgingly concurred in
Irvine
but had warned of precisely the result that had now come to pass. In the absence of a rule limiting the introduction of evidence seized by overzealous police, misconduct by police would surely continue, Clark noted in 1954: “Unpredictable reversals on dissimilar fact situations are not likely to curb the zeal of those police and prosecutors who may be intent on racking up a high percentage of successful prosecutions.”
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Proven right by time, Clark now drafted for a majority that included Warren and Brennan, with Douglas and Black joining in the result, though for varying reasons—Black found his recourse in the idea that the search violated a combination of search-and-seizure rules as well as a defendant's Fifth Amendment right, technically the right not to be forced to testify against oneself but here construed by Black as a broader right not to be forced to supply incriminating evidence against oneself. Stewart provided a sixth vote to free Mapp, but he explicitly refused to join the majority's constitutional conclusions. Harlan did his best to talk Clark out of a broad ruling, suggesting that the Court free Mapp by finding that Ohio's law against mere possession of obscene material went too far toward state imposition of “thought control.”
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But Clark wanted more and got it.

The result was hardly elegant—a divided Court articulating a grab bag of principles. But
Mapp
made bold new law almost despite itself, and it lightened the stain that the early, judicially immature Warren had allowed his Court to create in
Irvine
. Over the objections of Frankfurter, Harlan, and Whittaker,
Mapp
told police that they would comply with the Constitution or their suspects would go free. “There is no war,” Clark wrote, “between the Constitution and common sense.”
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Certainly Clark would get no argument there from Warren.

Mapp
represented the first of the major Warren Court forays into criminal justice, and it overturned the practices of half the states, which until
Mapp
had permitted the introduction of evidence regardless of the police conduct in obtaining it. Moreover, as Lucas Powe points out,
Mapp
was a pure criminal justice case, not an effort to extend or solidify the Court's desegregation opinions. As such, it represented new ground for the Court as it entered the 1960s.
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And yet
Mapp
was mere portent. Its bevy of concurrences, dissents, and memoranda for a time cloaked one aspect of its significance. Beneath the changes it wrought in the law itself was a lurking message: Warren had control of his Court again; restraint had run its course.

 

 

FOR THOSE who feared and detested Warren's work, the resumption of his control posed a threat to their values, and they moved in response. In 1961, the John Birch Society launched its campaign to drive Warren from the Court.
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Within months, the billboards calling for Warren's impeachment began to sprout up along American roads and highways, many to remain there until his retirement in 1969. The Birch Society's billboards became a ubiquitous and literal part of the American landscape, and remain a landmark of the imagination in history's depiction of Warren and his Court.

The Birch Society was led by the single-minded Robert Welch, a onetime candy-maker who concluded that America was rife with Communists bent on selling out the nation to the Soviets—even Eisenhower was suspect in the eyes of the Birch Society.
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Welch founded the Society at a December 1958 meeting in Indianapolis, and within two years, its “cells” had formed across the United States. Those cells cobbled together a motley coalition of serious conservatives, many of them wealthy, and right-wing misfits—“a collection of wealthy businessmen, retired military officers and little, old ladies in tennis shoes,” as California attorney general and Warren friend Stanley Mosk once described them.
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After two years of aimless anti-Communism, the Society settled on Warren as its enemy, and with him as its target, found its voice and place in American life. The campaign was unique in the annals of Court criticism, and it served both to heighten attention on the Court as well as to amplify the significance and coffers of the Society.

“We are aware that the whole Supreme Court is a nest of socialists and worse,” the Society argued in its bulletin launching the effort. “We have nothing but contempt, which we believe to be completely justified by the records, for a number of its justices.” Of Warren specifically, the Society noted, “We are demanding that Warren be impeached by the House, because we are convinced that the evidence of his abuse of his high office is amply sufficient to warrant his arraignment.”
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In listing its grounds for impeachment, the Society started with
Brown v. Board of Education,
which it labeled “the most brazen and flagrant usurpation of power” in the history of American jurisprudence. It also cited the
Nelson
case overturning state anti-Communist laws, and the
Sweezy
opinion curbing the New Hampshire attorney general's investigation into alleged subversives there. There were, the Society added, too many offenses to list them all. Members were urged to write their congressman, to write letters to the editor, to talk with friends and neighbors, pass resolutions, put up stickers (“This is a Republic,” the stickers stated), form organizations, and be inventive in crafting ways to challenge the chief justice. “The future of your country—and of your children—is at stake,” the bulletin asserted. It bore Welch's signature.
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The campaign was good for the Society. In 1961, when the “Impeach Earl Warren” campaign began, the Society reported $534,241 in income; two years later, it had nearly doubled, to $1,043,656.
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That money paid for a visible, sustained attack on the Supreme Court and its chief. By 1963, there were thirty-five coordinators of the impeachment movement, being paid $8,000 a week, while forty-one home office employees of the Society were earning $3,000 a week. The Society reported that its campaign was doubling every five to six months.
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The manifestations of that effort suddenly flooded the American landscape. At the Indy 500, a huge sign greeted visitors to the speedway in the mid-1960s: “Save Our Republic. Impeach Earl Warren!” The same message or variants of it greeted civil rights marchers in Selma and motorists on Highway 27 outside New Orleans; on federal Route 22 near Allentown, Pennsylvania; and on state highways throughout Florida, Alabama, and Georgia.
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Warren impeachment packets were available in Massachusetts, while a bedsheet hung near Montecito, California, proclaimed that America had fallen under the cruel dictatorship of “Communist Warren.” “If we do not kill him, he will enslave all of us,” it read .
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In the predawn of September 17, 1962, one protester brought the campaign to Capitol Hill, tacking up twenty-eight posters on trees around the House and Senate office buildings and the Lincoln Memorial. “Be a super patriot,” they urged. “Impeach Earl Warren.”
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The Birch Society campaign was both irrelevant and historic. At no point did it reach anything close to the support required to bring articles of impeachment against Warren, so its threat was abstract. Nevertheless, its breadth and duration revealed the intense animus that the Court inspired in those years, and even if that animus was confined to a segment of American society, that segment was large enough to sustain itself and angry enough to go on year after year.

Warren always professed to be unaffected by the Birch Society, but those close to him dispute that, and even he conceded that it took a toll on Nina. Some clerks from those years remember the grim tightening of his jaw, the cold stare, the abrupt end of pleasantries when the subject of “Impeach Earl Warren” was raised. Still, when one clerk, Doug Kranwinkle, called Warren's attention to a sign that read “A Man's House Is His Castle: Impeach Earl Warren,” the chief justice tossed it off.
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Warren suppressed his irritation, to be sure. He knew better than most that to respond to a political adversary was to elevate that adversary. Had Warren engaged the Society, its leaders would have enjoyed a platform with the Chief Justice of the United States, rather than on the kooky margins of American politics. Instead, he rationed his fire, betting that the threat would fade. “I recognized it for what it was,” Warren wrote, “an expression of dislike on the part of vested interest groups who were offended by the Court's interpretation in various cases that came before us.”
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Years later, with the campaign over, hints of Warren's irritation and amazement crept through. “In all my years in politics in California, I had never been subjected to any such treatment,” he noted.
²⁵
Of the campaign against the Court, Warren conceded, “The organization, using the device of making people hate some group by blaming that group for the ills of the nation, as Hitler blamed the Jews in Germany, chose the Supreme Court as the object of its attack.”
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While Warren did his best to ignore the Society, he cheered those who took it on, especially in the press. In 1960, management of the
Los Angeles Times
passed to Otis Chandler, and he signaled the arrival of responsible journalism at that paper by its publication in 1961 of a five-part series on the Society. The series began on March 5, and it profiled the Society in careful, balanced articles all week. Conservatives used to seeing the
Times
as their defender were puzzled, and then, with the publication of a Sunday editorial authorized by Chandler himself, furious: “The Times,” the editorial ran, “does not believe the argument for conservatism can be won—and we do believe it can be won—by smearing as enemies and traitors those with whom we sometimes disagree. Subversion, whether of the left or the right, is still subversion.”
²⁷
Under Otis Chandler's oversight of the
Times,
it shed its disreputable past and ushered in a remarkable journalistic era for the paper. It did not, however, sit well with all his family. Philip Chandler, his uncle, waged a behind-the-scenes attempt to discredit Otis in the wake of the Birch Society stories. Writing to Norman Chandler—Philip's brother, Otis's father, and a longtime friend and supporter of Warren—Philip warned of the paper's lack of appreciation for the threat of Communism. Closing his letter, Philip noted, “No one can deny the fact that the danger of Communism (not to mention the trend toward Socialism in the U.S.) is the No. 1 problem of the free world.”
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Responding, Norman Chandler thoroughly scolded his brother for his attack on the paper and invited him to present his criticisms “face to face.”
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There is no record of whether such a meeting occurred.

Up the coast in Santa Barbara, the publisher of that city's paper launched a campaign of his own against the Society and in defense of Warren, an old friend. Tom Storke's editorials infuriated the Society, whose followers hanged him and Warren in effigy in that city's stately downtown. Storke's work secured the only Pulitzer Prize in the history of the
Santa Barbara News-Press
. Warren delighted in his friend's courage.
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Support from newspapers and old friends helped soften the Birch Society's campaign. In time, the Society's campaign against the Warren Court became more curiosity than threat. Yet the fringe right wing, as exemplified by the Birch Society, never let go of Warren. Typical is his entry in the
Biographical Dictionary of the Left,
which portrayed Warren as a “compulsive publicity seeker” with a “strange” code of ethics and “contempt for the division of powers.”
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WHEN FORCES gathered against the Warren Court in Eisenhower's years, he let them have their way and occasionally even encouraged them—an obfuscation here, an outburst there. With Kennedy in the White House, however, Warren acquired an ally. Kennedy's open support for the landmark rulings of the Court during his brief presidency—and his careful, dignified handling of Warren himself—deprived the Court's critics of even implicit support from the White House. Nowhere was that more evident than in the response to the Warren Court's second great blockbuster opinion, exceeded in historic significance only by
Brown
itself and, in the estimation of Warren, even more important than that.

By the 1950s, voters in Tennessee had exhausted their options for trying to reform that state's voting rules. They pleaded with the legislature and argued with the governor, to no avail. The state had no mechanism for popular initiative, and the officials who had been elected under its voting rules understandably defended those rules against those who were hurt by them. Finally, having lost patience with their political representatives, the marginalized voters filed a lawsuit in federal court. Their argument was simple: The state's practice of allocating representatives by county meant that sparsely populated areas were overrepresented at the expense of growing urban areas. That, they said, denied equal protection of the laws to those Tennessee voters whose votes in effect counted for less than those of others. The Fourteenth Amendment, they contended, guaranteed them that equal protection—and not coincidentally, the effect of its denial in their state was to ensure that white rural voters continued to have more power than black urban voters, even as urban areas grew.

This was not a problem that had troubled Warren as governor of California. When labor groups had sponsored an initiative in 1948 to redistribute California's voting power along population lines, Warren opposed it. The racial implications of the state's voting system were not the issue in that campaign, so there is no benchmark of Warren's consideration of that question. What is clear is that in 1948, California's voting rules worked to elect Warren, and since Warren saw himself as a good and progressive governor, he saw no reason to amend those rules. Reflecting on it later, Warren realized he was wrong, and made no attempt to justify himself. “It was,” he recorded in his memoirs, “frankly a matter of political expediency.”
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