Justice for All (67 page)

Warren began in much the same vein as he had in the first
Brown
conference more than a year earlier—by recommending patience and conversation, not quick judgments. He had not, Warren told the conference, “reached [any] fixed opinion.”
¹¹
But just as quickly as Warren set a tone of collegiality, he also reminded his brethren of something else that they had discovered in these discussions a year earlier—that while he valued their views and insisted on an atmosphere of respect, he was not in awe of his colleagues. Warren had opinions of his own. Warren now listed them. He summarily rejected a suggestion by Frankfurter—also contained in the Eisenhower administration's brief—that the Court appoint special masters to oversee desegregation, though he added that he would not deny lower courts the chance to do so if they chose to. He did not want a final date set for the completion of the process—here, the conflict with Rogers must have rung in his ears—and he wanted lower courts to have flexibility in the orders they struck to move the process along. Having listed what he did not want, Warren then turned to “what appeals to me.”
¹²
He proposed that the Court shift the burden for enforcing
Brown
back down to district court judges, but that it also write an opinion to help guide those judges in applying the law. It would be cruel, Warren insisted, to deny those judges such guidance and instead “let them flounder.” Finally, Warren rejected the suggestion that the Court only grant its relief to the individual plaintiffs who had sued in the four states and the District of Columbia. The cases were, he said, class actions, and thus the Court's ruling on
Brown
's applicability ought to apply to all segregated children in the districts that were sued, not just those whose families had shown the courage to file and pursue lawsuits.
¹³

Black surprisingly disagreed with Warren's recommendation on the reach of the cases. Despite his intense devotion to civil liberties—at least those enumerated in the Bill of Rights—Black was a Southerner and he saw trouble ahead. “I was brought up in an atmosphere against federal officials,” Black reminded his colleagues. Time had softened some of that feeling, he added, but federal intervention on behalf of Negro children would stir it again, fueling the South's historic antipathy for Washington. For Black, the best decree would be the one that did the least—one that stuck by the proposition that school segregation was unconstitutional but that limited its effect just to the litigants who had brought the cases and that gave districts time to adapt. The Court, he said forebodingly, should expect “glacial movement,” but though that might be frustrating, it was preferable to the alternative. “Nothing,” Black warned, was “more important than that this Court should not issue what it cannot enforce.”
¹⁴
And in that vein, he foresaw resistance. “Some counties,” Black said, “won't have Negroes and whites in the same school this generation.”
¹⁵

Those were sobering words from a justice whose commitment to civil rights was without peer, and it set the tone for the rest of the conversation. Frankfurter hardly needed to be pushed toward judicial caution, so his support was inevitable, and he took the opportunity to assume the credit for successfully delaying the cases. “He now says he filibustered this problem under Vinson for fear that the case would be decided the other way . . . !” Douglas scrawled in obvious exasperation.
¹⁶
Despite his irritation with Frankfurter, Douglas agreed that the Court should proceed with caution and should limit its own reach in order to achieve compliance.

Others weighed in similarly, urging unanimity and also counseling restraint. By the time the conversation reached Harlan, the junior justice, he had little left to add beyond noting that he too looked forward to the Court's moving unanimously. Black's remarks, Harlan said, had “made a deep impression.”
¹⁷

Warren again assigned the opinion to himself, and as he wrote and circulated drafts through late April, he struggled for the right balance—not shrinking from
Brown
but not provoking too much, either. Warren did not, of course, yield from the position that
Brown
and
Bolling
had declared discrimination in public education unconstitutional and thus that all local, state, and federal laws to the contrary were required to yield to that ruling. Less satisfying were his attempts to mute the outcry at that finding. The Court agreed, first of all, to limit the immediate impact of its ruling to the parties who had brought the lawsuits. Though the principle of segregation's unconstitutionality thus stood, the effect of it initially would be felt only by those families who had had the gumption to sue (in Kansas, Oliver Brown's daughter was not even affected that much; Topeka's segregated schools ended after elementary school, so she already was attending an integrated classroom).

As to timing, Warren's early drafts of the opinion—the justices had settled on an opinion as preferable to a mere decree—ordered desegregation to begin “at the earliest practicable date.” That language was softened through the exchanges with other justices, and what emerged was a ruling that in effect said discrimination could continue for a very long time indeed. The most famous of the Court's equivocations was added by Frankfurter, who suggested the language of “all deliberate speed.” Frankfurter was enamored of that phrase, with its intentionally equivocal implications. To him, it smacked of judicial statesmanship, and he had used it, seriously and whimsically, for years. As early as 1947, for instance, he had urged a former clerk to edit a document and return it “as the grand old chancery phrase expresses it, ‘with all deliberate speed.' ”
¹⁸
Now Frankfurter recommended it to give guidance to those judges asked to carry desegregation forward.

Except in Delaware, where the Supreme Court was upholding a lower court, the segregation cases were returned to the district courts, where judges were directed “to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”
¹⁹
As Lucas Powe notes with typical concision and insight, the message of
Brown II
“was that the Court was willing to accept token desegregation—later.”
²⁰
In the Florida legislature, when
Brown II
was read aloud, the audience burst into applause.

With
Brown II,
Warren and his colleagues moved the front line of the school desegregation battle out of their courtroom and into the district courts. There, many brave judges would face hostile local communities and demand compliance without state or federal support. That the matter moved ahead is a testament to their work, for while Warren had established a grand new principle of American life—the idea that equality was not just an abstract value but in fact the law—he was quickly discovering the limitations of his assignment. He could pronounce law and change standards, but he was not a governor anymore. The police no longer were at his command, and the president was not required to move the Court's agenda. It would take time for Warren to understand both the reach and limits of the Court, but the balance of the 1950s would prove an essential fact of his new life: Only with political support could the Court be as effective as Warren wanted. And for the time being, the Court had precious little.

A few weeks after announcing
Brown II,
the Court recessed for the summer, and Earl and Nina Warren set off on an exploration of their family roots. It was their second trip to Scandinavia but their first since Warren's appointment to the Court. They were hosted at embassies and Warren was greeted across northern Europe as more than a dignitary—rather, as something approaching the status of a liberator, a champion of freedom whose controversies and conflicts stayed behind in America. He and Nina stayed for more than a month, touring Sweden, Belgium, Luxembourg, Germany, and Austria before making their way home to California in August. It was the beginning of a regular summer travel tradition, one in which Warren would typically meet ambassadors and judges from the nations they visited; Nina would accompany him, and would keep in touch with the children and grandchildren by her regular postcards, which they would save and share upon the Warrens' return.

Back home, the Warrens traveled to Santa Barbara for its annual “fiesta,” and then returned to Washington as the summer ebbed. As would also become his habit, Earl Warren made one last trip—this one on his own—before Court began its business in early October. He ducked out of the office with old friends to take in the World Series. This year, that meant a trip to New York, where Warren and pals from his California days took in games 3 and 4. The Dodgers fought off the Yankees in both games, winning the contests at their home park, Ebbets Field, despite lackluster playing by Jackie Robinson, whose historic career then was winding to a close. Warren returned after the Saturday game and gaveled the Court into its new session on Monday morning, refreshed and ready for a new term.
²¹

 

 

WARREN WAS a national figure before
Brown,
an international figure afterward. And as such, politics continued to tug him back to his still-unfulfilled quest for the presidency. With 1955 beginning, the nation's chief political question was whether Eisenhower would seek a second term; the president had made it clear that he felt his duty had been performed and that retirement was an attractive option for him. With his plans thus uncertain, two old rivals were thrown back into conflict.

Richard Nixon had every reason to believe that he should be Eisenhower's heir—he was the sitting vice president, a proven vote-getter, and an ambitious, skillful politician. But Nixon would always be Nixon, an irritant to moderates because of his red-baiting past, a source of anxiety and fear to liberals. Warren, on the other hand, was the architect of desegregation, the friendly California bear whose stature had only grown since he left the governorship and came to the Court. In early 1955, Gallup conducted a survey that found Warren the most popular Republican to succeed Eisenhower should the president not seek reelection. For Nixon, this was just one more in a line of indignities served him by Warren.

On April 15, with speculation rife about Warren's decision, Warren wrote out in longhand a stiff rejection:

 

Concluding, Warren added, “Be they few or many, the remaining useful years of my life are dedicated to the service of the Supreme Court of the United States, in which work I am increasingly happy.”
²²
Before releasing the statement, Warren made only one change. He reversed the introductory clause of his final sentence, so that the final draft read: “Be they many or few . . .”

Warren's withdrawal won widespread praise. Editorial writers hailed the decision, as did law school professors and deans and many others who wrote personally to Warren. They understood that with his unambiguous statement, Warren had raised the stature of the Court by removing it and himself from electoral politics and by making it clear that the presidency was not an office worth leaving the Court to pursue. It also had the effect—no doubt intended—of diminishing Nixon by reminding voters that where Nixon would presumably engage in the messy business of seeking votes, Warren was above that and thus above Nixon. That resolved the issue for the moment, but it returned in the fall, when Eisenhower suffered a heart attack, and eyes turned again to Warren. The chief justice received dozens of letters urging him to reconsider his withdrawal, given that Eisenhower now seemed unable to continue in office for a second term. This time, Warren remained silent.

Warren even turned the dagger a notch by use of a device that would serve him well in the coming years. He sought out a friendly journalist and told his side of the story. In this case, as in many others, Warren reached out to Drew Pearson. Since their first meeting in 1947, Warren and Pearson had maintained a respectful, professional friendship, and it grew closer once Warren arrived in Washington. Warren admired Pearson's courage and talent, and Pearson wrote occasionally and favorably about Warren, whom he believed should have received the Republican nomination in 1948.
²³
By the time Warren came to the Court in 1953, Pearson felt sufficiently comfortable to drop by and chat about politics.
²⁴
With Pearson's deep affection for Nina and with the bond between Nina and Pearson's second wife, Luvie, the two families grew close through the early 1950s and formed a klatch of friends that included Adlai Stevenson and Agnes Meyer, heir to the
Washington Post.
Warren and Pearson liked each other, and helped each other. In later years, Pearson would deliver messages to the White House on Warren's behalf, and now and again Warren saw to it that Pearson got a good story.

With Eisenhower's health and future in doubt, Warren suggested to Pearson that he might consider running if it would block Nixon.
²⁵
That gave Pearson a scoop, and allowed both Warren and Pearson to enjoy the twitting it gave Nixon, of whom they shared a loathing. Eisenhower, himself sometimes suspicious of Nixon's ambition, allowed the issue to sit, driving Nixon to distraction through early 1956. It was then that the president finally closed the speculation by announcing that he did indeed intend to seek a second term. With that, the matter rested, having only succeeded in alarming Nixon, amusing Eisenhower, and elevating Warren.