Authors: Jim Newton
Justice for All (117 page)
127
Address delivered at Washington University, St. Louis, Missouri, Feb. 19, 1955, LOC, MD, Warren papers, Speech file.
Address delivered at Washington University, St. Louis, Missouri, Feb. 19, 1955, LOC, MD, Warren papers, Speech file.
128
Firing Line
(publication of the American Legion), June 1966, included in PU, ML, Harlan papers,
United States. v. O'Brien
file. For this analysis of
O'Brien
, I am indebted to Larry Simon, who drafted the opinion at Warren's instruction. The conclusions are mine, but Professor Simon helped explain the case's history and theory. Author interview, June 10, 2006.
Firing Line
(publication of the American Legion), June 1966, included in PU, ML, Harlan papers,
United States. v. O'Brien
file. For this analysis of
O'Brien
, I am indebted to Larry Simon, who drafted the opinion at Warren's instruction. The conclusions are mine, but Professor Simon helped explain the case's history and theory. Author interview, June 10, 2006.
129
United States v. O'Brien
, 391 U.S. 367 (1968). Also oral argument in
United States v. O'Brien
(accessed at
Oyez.com
).
United States v. O'Brien
, 391 U.S. 367 (1968). Also oral argument in
United States v. O'Brien
(accessed at
Oyez.com
).
130
Ibid. (both sources).
Ibid. (both sources).
131
Ibid. (both sources).
Ibid. (both sources).
132
Undated memo to Warren, LOC, MD, Warren papers, Supreme Court files, Opinions of the Chief Justice,
United States v. O'Brien
file.
Undated memo to Warren, LOC, MD, Warren papers, Supreme Court files, Opinions of the Chief Justice,
United States v. O'Brien
file.
134
Ibid.
Ibid.
135
Gomillion v. Lightfoot
, 364 U.S. 339 (1960) See also Powe,
The Warren Court and American Politics
, p. 325.
Gomillion v. Lightfoot
, 364 U.S. 339 (1960) See also Powe,
The Warren Court and American Politics
, p. 325.
136
End-of-term memo, 1967, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.
End-of-term memo, 1967, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.
141
Ibid.
Ibid.
142
End-of-term memo, 1967, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.
End-of-term memo, 1967, Chambers of William J. Brennan, Jr., LOC, MD, Brennan papers, Part II.
143
Ibid.
Ibid.
144
Ibid.
Ibid.
145
Brennan memo to Warren, March 14, 1968, LOC, MD, Warren papers, Supreme Court file, Opinions of the Chief Justice,
Terry v. Ohio
.
Brennan memo to Warren, March 14, 1968, LOC, MD, Warren papers, Supreme Court file, Opinions of the Chief Justice,
Terry v. Ohio
.
148
Warren letter to Johnson, April 2, 1968, LBJ Library, White House Central Files, Name File, Warren, Earl (Chief Justice).
Warren letter to Johnson, April 2, 1968, LBJ Library, White House Central Files, Name File, Warren, Earl (Chief Justice).
149
Johnson letter to Warren, April 30, 1968, LBJ Library, White House Central Files, Name File, Warren, Earl (Chief Justice).
Johnson letter to Warren, April 30, 1968, LBJ Library, White House Central Files, Name File, Warren, Earl (Chief Justice).
150
Martin Luther King, Jr., “I've Been to the Mountaintop,” April 3, 1968, Martin Luther King, Jr., Papers Project, Speeches.
Martin Luther King, Jr., “I've Been to the Mountaintop,” April 3, 1968, Martin Luther King, Jr., Papers Project, Speeches.
152
President's Daily Diary, diary backup, April 5, 1968, LBJ Library.
President's Daily Diary, diary backup, April 5, 1968, LBJ Library.
154
Jim Jones memo to Johnson, June 11, 1968, LBJ Library, White House Central Files, Name File, Warren, Earl. Johnson's reply is indicated by the notation: “Bring him in tomorrow.” In fact, the White House schedule shows that Warren came the day after that, June 13.
Jim Jones memo to Johnson, June 11, 1968, LBJ Library, White House Central Files, Name File, Warren, Earl. Johnson's reply is indicated by the notation: “Bring him in tomorrow.” In fact, the White House schedule shows that Warren came the day after that, June 13.
2
Warren letter to Johnson, June 13, 1968, LOC, MD, Warren papers, Supreme Court file, Subject files, Retirement.
Warren letter to Johnson, June 13, 1968, LOC, MD, Warren papers, Supreme Court file, Subject files, Retirement.
3
Second Warren letter to Johnson, June 13, 1968, LOC, MD, Warren Papers, Supreme Court file, Subject files, Retirement.
Second Warren letter to Johnson, June 13, 1968, LOC, MD, Warren Papers, Supreme Court file, Subject files, Retirement.
4
Memo, Aug. 19, 1968, LOC, MD, Warren papers, Articles file. If that article had run in 1968, it would have contributed to the controversy surrounding the confirmation of Warren's successor. It is no wonder that Warren asked Pearson to pull it back. Warren also confided to his clerks that he was leaving so that Nixon would not have the chance to replace him. Author interview with Larry Simon, June 12, 2006.
Memo, Aug. 19, 1968, LOC, MD, Warren papers, Articles file. If that article had run in 1968, it would have contributed to the controversy surrounding the confirmation of Warren's successor. It is no wonder that Warren asked Pearson to pull it back. Warren also confided to his clerks that he was leaving so that Nixon would not have the chance to replace him. Author interview with Larry Simon, June 12, 2006.
6
Author interview with William Brennan III, July 2003.
Author interview with William Brennan III, July 2003.
10
Ibid.
Ibid.
11
The practice has continued since the Warren-Fortas episode in 1968. When she submitted her retirement in 2005, Justice Sandra Day O'Connor specified that her departure was contingent upon the confirmation of her successor, a condition that attracted scarcely any notice at all.
The practice has continued since the Warren-Fortas episode in 1968. When she submitted her retirement in 2005, Justice Sandra Day O'Connor specified that her departure was contingent upon the confirmation of her successor, a condition that attracted scarcely any notice at all.
12
Author interview with Warren Christopher, June 2005.
Author interview with Warren Christopher, June 2005.
15
Memo to the President, June 3, 1968, LBJ Library, Subject files, Supreme Court folder.
Memo to the President, June 3, 1968, LBJ Library, Subject files, Supreme Court folder.
19
Author interview with Warren Christopher, June 2005.
Author interview with Warren Christopher, June 2005.
20
Statement by President Johnson, Oct. 10, 1968, Public Papers of the President, Document 527. Obtained courtesy John Woolley and Gerhard Peter of The American Presidency Project, University of California at Santa Barbara,
http://www.presidency.ucsp.edu
.
Statement by President Johnson, Oct. 10, 1968, Public Papers of the President, Document 527. Obtained courtesy John Woolley and Gerhard Peter of The American Presidency Project, University of California at Santa Barbara,
http://www.presidency.ucsp.edu
.
21
Nixon to Republican National Convention, August 8, 1968. American Presidency Project.
Nixon to Republican National Convention, August 8, 1968. American Presidency Project.
22
Warren schedule, Nov. 5, 1968, LOC, MD, Warren papers, schedules, 1968 folder.
Warren schedule, Nov. 5, 1968, LOC, MD, Warren papers, schedules, 1968 folder.
24
Ibid.
Ibid.
26
Ibid. (Harlan dissent).
Ibid. (Harlan dissent).
27
Ibid. (Black dissent).
Ibid. (Black dissent).
29
Author interview with Scott Bice, July 11, 2005.
Author interview with Scott Bice, July 11, 2005.
30
Warren letter to Mr. and Mrs. Clemencia, April 5, 1969, LOC, MD, Warren papers, Supreme Court file, Subject files, Personnel.
Warren letter to Mr. and Mrs. Clemencia, April 5, 1969, LOC, MD, Warren papers, Supreme Court file, Subject files, Personnel.
32
Author interview with Jeffrey Warren, Aug. 26, 2003. Also undated speech by Jeffrey Warren, who provided a copy to the author.
Author interview with Jeffrey Warren, Aug. 26, 2003. Also undated speech by Jeffrey Warren, who provided a copy to the author.
33
Jack Harrison Pollack,
Earl Warren: The Judge Who Changed America
, p. 284. This meeting was confirmed for the author by Virginia Daly.
Jack Harrison Pollack,
Earl Warren: The Judge Who Changed America
, p. 284. This meeting was confirmed for the author by Virginia Daly.
34
Warren statement to press, Dec. 4, 1968, LOC, MD, Warren papers, Supreme Court file, Subject files, Retirement.
Warren statement to press, Dec. 4, 1968, LOC, MD, Warren papers, Supreme Court file, Subject files, Retirement.
36
United States Constitution, Article 1, Section 2.
United States Constitution, Article 1, Section 2.
38
Ibid.
Ibid.
39
Ibid.
Ibid.
40
Author interview with Scott Bice, July 11, 2005.
Author interview with Scott Bice, July 11, 2005.
41
Alderman v. United States
, 394 U.S. 165 (1969). The decision in
Alderman
was applied to two other pending cases,
Ivanov v. United States
and
Butenko v. United States
, both espionage prosecutions.
Alderman v. United States
, 394 U.S. 165 (1969). The decision in
Alderman
was applied to two other pending cases,
Ivanov v. United States
and
Butenko v. United States
, both espionage prosecutions.
42
Brennan memo to Warren, March 18, 1969, LOC, MD, Warren papers, Correspondence files, Brennan folder, 1967-1974.
Brennan memo to Warren, March 18, 1969, LOC, MD, Warren papers, Correspondence files, Brennan folder, 1967-1974.
44
Ibid., p. 342.
Ibid., p. 342.
45
Life
, May 9, 1969. The story, written by William Lambert, ran beneath the headline “Fortas of the Supreme Court: A Question of Ethics. The Justice . . . and the Stock Manipulator,” and featured nearly full-page pictures of Fortas and Wolfson.
Life
, May 9, 1969. The story, written by William Lambert, ran beneath the headline “Fortas of the Supreme Court: A Question of Ethics. The Justice . . . and the Stock Manipulator,” and featured nearly full-page pictures of Fortas and Wolfson.
47
Warren schedule, May 7, 1969, LOC, MD, Warren schedules for 1969.
Warren schedule, May 7, 1969, LOC, MD, Warren schedules for 1969.
51
Ibid.
Ibid.
52
Warren letter to Jeffrey Warren, June 15, 1969, supplied to the author by Jeffrey Warren.
Warren letter to Jeffrey Warren, June 15, 1969, supplied to the author by Jeffrey Warren.
54
Ibid.
Ibid.
55
Brennan memo to the justices, May 29, 1969, LOC, MD, Brennan papers, Part II, Correspondence files, Earl Warren 1956-1967 folder. Other memos in the same file spell out the arrangements and guest list.
Brennan memo to the justices, May 29, 1969, LOC, MD, Brennan papers, Part II, Correspondence files, Earl Warren 1956-1967 folder. Other memos in the same file spell out the arrangements and guest list.
56
Warren schedules, Aug. 21-Sept. 20, 1969, LOC, MD, Warren papers, schedules for 1969.
Warren schedules, Aug. 21-Sept. 20, 1969, LOC, MD, Warren papers, schedules for 1969.
58
Author interviews.
Author interviews.
61
Author interview with Peter Ehrenhaft, Jan. 31, 2005.
Author interview with Peter Ehrenhaft, Jan. 31, 2005.
62
Ibid.
Ibid.
64
Author interview with Peter Ehrenhaft, Jan. 31, 2005.
Author interview with Peter Ehrenhaft, Jan. 31, 2005.
65
Warren letter to Douglas, March 26, 1971, LOC, MD, William Douglas papers, Part I, Correspondence files, Earl and Nina Warren folder.
Warren letter to Douglas, March 26, 1971, LOC, MD, William Douglas papers, Part I, Correspondence files, Earl and Nina Warren folder.
66
Warren letter to Swig, Oct. 3, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
Warren letter to Swig, Oct. 3, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
67
Warren letter to Swig, Oct. 16, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
Warren letter to Swig, Oct. 16, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
68
Warren letter to Swig, Oct. 24, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
Warren letter to Swig, Oct. 24, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
69
Warren letter to Swig, Oct. 31, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
Warren letter to Swig, Oct. 31, 1973, LOC, MD, Warren papers, personal papers, Ben Swig file.
71
Bradley letter to Warren, Aug. 1, 1973, LOC, MD, Warren papers, personal papers, Bradley swearing-in file.
Bradley letter to Warren, Aug. 1, 1973, LOC, MD, Warren papers, personal papers, Bradley swearing-in file.
72
Warren letter to Bradley, Aug. 17, 1973, LOC, MD, Warren papers, personal papers, Bradley swearing-in file.
Warren letter to Bradley, Aug. 17, 1973, LOC, MD, Warren papers, personal papers, Bradley swearing-in file.
73
Warren speech at Morehouse College, May 21, 1974, LOC, MD, Speeches and Statements file, Morehouse folder.
Warren speech at Morehouse College, May 21, 1974, LOC, MD, Speeches and Statements file, Morehouse folder.
74
Ibid.
Ibid.
75
Handwritten note attached as appendix to oral history interview with Edgar James Patterson,
Governor's Mansion Aide to Prison Counselor
, 1975.
Handwritten note attached as appendix to oral history interview with Edgar James Patterson,
Governor's Mansion Aide to Prison Counselor
, 1975.
76
Ibid.
Ibid.
77
Author interview with Jeffrey Warren, Aug. 26, 2003.
Author interview with Jeffrey Warren, Aug. 26, 2003.
78
Warren was at Georgetown rather than Walter Reed either because of misunderstanding or because of an act of brutish insensitivity on Nixon's part. Supreme Court justices are entitled to free medical care at military facilities, and Warren had availed himself of that privilege throughout his Court career. A policy change in the Nixon years, however, required retired military personnel to seek White House authorization before receiving treatment. That policy apparently was applied by mistake to Warren, who then moved to Georgetown. Members of the Warren family and others believed that Nixon had intentionally forced Warren to seek care elsewhere. Author interview with Nina “Honey Bear” Brien, May 6, 2004.
Warren was at Georgetown rather than Walter Reed either because of misunderstanding or because of an act of brutish insensitivity on Nixon's part. Supreme Court justices are entitled to free medical care at military facilities, and Warren had availed himself of that privilege throughout his Court career. A policy change in the Nixon years, however, required retired military personnel to seek White House authorization before receiving treatment. That policy apparently was applied by mistake to Warren, who then moved to Georgetown. Members of the Warren family and others believed that Nixon had intentionally forced Warren to seek care elsewhere. Author interview with Nina “Honey Bear” Brien, May 6, 2004.
79
William Douglas,
The Court Years
, p. 238. Douglas, whose autobiography is notoriously riddled with errors, writes that he visited Warren alone. That is contradicted by members of the Warren and Brennan families, who say that Brennan accompanied Douglas on that final visit.
William Douglas,
The Court Years
, p. 238. Douglas, whose autobiography is notoriously riddled with errors, writes that he visited Warren alone. That is contradicted by members of the Warren and Brennan families, who say that Brennan accompanied Douglas on that final visit.
80
Author interview with William Brennan III, July 2003.
Author interview with William Brennan III, July 2003.
81
Author interview with Nina “Honey Bear” Brien, May 6, 2004.
Author interview with Nina “Honey Bear” Brien, May 6, 2004.
82
Author interviews with Jesse Choper, Peter Ehrenhaft, and Dennis Flannery.
Author interviews with Jesse Choper, Peter Ehrenhaft, and Dennis Flannery.
Bibliography
NOTES ON SOURCESMost of the sources for this book are self-explanatory and are listed below. A few of them require brief explication:
The FBI files cited in this book were delivered to the author in response to requests made under the Freedom of Information Act. They consist of 2,206 pages. In addition, the FBI released Warren material to author Alexander Charns during the preparation of his 1992 book
Cloak and Gavel
. In most cases, the material given to me and to Charns is identical, or what I have received is slightly more expansive, since it was released more than a decade later. Where I have drawn on the material released to me, I have cited it merely by official document number. In the few instances where, inexplicably, the FBI released material to Charns but did not include those same files in complying with my request or where it redacted those files more heavily, I have cited the document numbers as well as Charns's papers, which are housed at the University of North Carolina.
Cloak and Gavel
. In most cases, the material given to me and to Charns is identical, or what I have received is slightly more expansive, since it was released more than a decade later. Where I have drawn on the material released to me, I have cited it merely by official document number. In the few instances where, inexplicably, the FBI released material to Charns but did not include those same files in complying with my request or where it redacted those files more heavily, I have cited the document numbers as well as Charns's papers, which are housed at the University of North Carolina.
In addition, previous studies of Warren have been made without access to two vitally important sets of records, held out of public view for different reasons. Congressional files related to Supreme Court nominations are sealed for fifty years, and thus the story of Warren's nomination was locked away until 2004. Those files, opened at my request, are housed at the National Archives in Washington, D.C.
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