Justice for All (71 page)

In Washington's social circuit, Warren represented the Court and was well received. He appeared at functions almost weekly, often appearing at embassy receptions and particularly agreeing to attend those of smaller countries. Warren even managed to coax the other justices along with him in an annual public ritual. Starting in 1954, he arranged for the Court to travel as a group to the Army-Navy game, the perfect outing for a justice looking to project patriotism and still eager to take in a football game. Warren tended to the smallest details. He booked a special train car that the justices and their wives would take from Washington's Union Station in the morning. A light breakfast was served on the train, along with morning drinks. The Court and Court family then attended the game and returned to Washington by train that evening, dining together as the cars rumbled home in the dark. It was a festive, family gathering of the type that Warren loved. Most of the justices came to appreciate it as well, though Frankfurter and Black, who disagreed on so much but shared a distaste for sports, rarely attended. For those who did attend, it was both a chance to put aside their differences and a rare opportunity to present themselves in public, unrobed and as a family, not a bench.

Soon after arriving to the Court, Brennan joined the brethren on the trip to the game, bringing with him his oldest son, William Brennan III. The younger Brennan, recently mustered out of the Army, came in uniform, eager to show off his service to the members of the Court. Warren greeted him with the booming welcome of a friendly uncle. He asked about his service, his college life, his friends and family. After the game, young Brennan sat near Warren as the justices and their families dined. And upon returning to Washington, William Brennan took Virginia Warren to a movie. “It was one of the nicest days of my life,” he said fifty years later.
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The Court's growing esteem—except, of course, in much of the South and in such places as the White House—lifted all the justices with it. Stories about division on the Court, rife in Vinson's day, gradually disappeared. Controversy surrounding the Court did not, however. On the day before Eisenhower's reelection, Steve Nelson, the Pennsylvania Communist whose earlier case had riled conservatives, returned one more time to the Court after the Justice Department was informed that a witness against him had lied in other cases. Conceding that, the government wanted the trial court to investigate whether the witness's testimony against Nelson—who was charged under his real name of Mesarosh—was truthful. Over the objections of Frankfurter, Harlan, and Burton, Warren refused and instead granted Mesarosh a new trial. “The government of a strong and free nation does not need convictions based upon such testimony,” he wrote.
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That briefly revived the uproar over the
Nelson
case, but the tribulations of that fall would seem small indeed compared with those that Warren and the brethren unleashed the following spring.

The first tremor of the Court's end-of-term rush came in an opinion by Brennan. Since just after Brennan's arrival in the fall, the justices had debated the case of Clinton Jencks, a union president who in April 1950 had filed the required affidavit swearing he had never been a Communist, only to have the government then contend that he had lied.
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At issue was Jencks's right to confront witnesses who testified against him—specifically, the right to review reports made by the informants to the FBI so that they might be cross-examined about them. At trial, Jencks's lawyer had asked the witnesses about their reports, but both said they could not recall what they had said at the time. That cut off that line of questioning, so the lawyer asked that the reports be turned over to the judge so that the judge might review them and then decide which, if any, the defense was entitled to use in cross-examining the government informants. The judge denied the motion without explanation, and that decision was upheld on appeal.
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When the Supreme Court first discussed the
Jencks
case, Warren again set the tone, announcing that he could not see how Jencks could receive a fair trial without access to the reports needed to question witnesses against him. At first, the brethren were divided on the question of who, if anyone, could read the reports. Some favored giving the records to the defendant, while others would agree only to let the judge review them. “It is O.K. to let the judge see them, but not the lawyers,” Clark said at the Court's first conference on the case.
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Jencks's lawyers asked only that the material be shared with the judge, but Warren and Brennan were unwilling to stop there. Instead, they took the unusual position of arguing that Jencks deserved more than he asked for, that he himself deserved the reports if the witnesses who wrote or conveyed them were going to testify against him.

They carried the day, with Brennan writing for himself, Warren, and two others. Frankfurter joined them in all but a side discussion about the jury instructions to be given at Jencks's retrial, and Burton and Harlan joined in the outcome but urged that the trial judge be allowed to screen material before handing it over to a defendant. Only Clark dissented from the conclusion that Jencks deserved a new trial, but he did so in such angry language, the most memorable of his career on the bench, that he virtually ensured the reaction outside the Court. Allowing a defendant to peruse the reports, Clark warned, “afforded him a Roman holiday for rummaging through confidential information as well as vital national secrets.”
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The Court's critics could not have agreed more, and even as they loaded up for another round of Court-bashing, Warren and the brethren tossed them a sack of ammunition.

Four decisions were handed down on June 17, 1957, and with them the Warren Court demolished much of the nation's anti-Communist domestic-security program. Warren took charge of two cases himself, and his decision to write those opinions is revealing. Both—
Watkins v. United States
and
Sweezy v. New Hampshire
—turned on the question of how far legislative bodies can go in conducting investigations. Both Warren rulings served to curtail the power of legislatures, state and federal, to force witnesses to cooperate with legislators seeking to expose or embarrass their witnesses. In
Sweezy,
the New Hampshire attorney general, at the direction of its legislature, had corralled a Marxist economics professor from the University of New Hampshire and ordered him to discuss his lectures and involvement with the Progressive Party. The professor, Paul Sweezy, refused to answer. The attorney general then haled Sweezy into state court, where Sweezy again refused, and was held in contempt.
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In
Watkins,
the questions were put by the House Un-American Activities Committee and were addressed to a labor organizer named John Watkins.
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Watkins denied that he had been a Communist but freely acknowledged that he had supported Communist causes. Watkins would not, however, tell the committee about people with whom he had associated:

 

For asserting that principle, Watkins was convicted of contempt of Congress, a misdemeanor.

Warren well knew the gravity of challenging the right of legislatures to hunt down and expose Communists. Although McCarthy was dead by 1957, McCarthy-ism was kicking, and the spectacle of congressional committees dragging witnesses before the bar and badgering them into giving up their friends and associates was a grim leitmotif of the entire Cold War. The Court had long stood by and allowed demagogues to have their way with those witnesses, never mind the swath that those persecutions had cut through labor, the movie industry, and many other institutions of American life. Indeed, Warren specifically acknowledged the turf upon which he and the Court now warily trod. “We approach the questions presented,” Warren wrote for his majority in
Watkins,
“with conscious awareness of the far-reaching ramifications that can follow from a decision of this nature.”
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That said, Warren did everything he could to limit those ramifications. Both cases cried out for a finding that the men cited for contempt had merely exercised their protected First Amendment rights of association and speech. In Sweezy's case, his only alleged association was with the Progressive Party and his only other contested act was delivering a lecture, surely a protected act of free speech. Likewise, Watkins had admitted his Communist affiliations, shallow though they were; all that remained was whether Congress could bludgeon him into giving up names of old associates. But Frankfurter and Harlan lobbied Warren to avoid a sweeping constitutional conclusion based on the First Amendment. Frankfurter in particular leaned hard on the issue. He heavily edited Warren's draft opinion, and once he had succeeded in scrubbing its references to free association, dashed off a handwritten note of self-congratulation to Harlan. “I have,” he wrote, “deleted all references to the First Amendment.”
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Under pressure from his right, Warren instead wrote a narrowly drawn opinion, concluding that Watkins had not known enough about the congressional inquiry to assess its proper scope and thus to determine whether its questions to him lay within or outside that scope. Moreover, Warren further attempted to shield the Court by assembling a strong majority behind the opinion. Only Clark dissented, complaining of what he called, with some justification, the Court's “mischievous curbing of the informing function of the Congress.”
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But neither Warren's efforts to contain the opinion's reach nor his work to communicate the breadth of the Court's support for it could obscure the Court's revulsion at witch hunts. “No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress,” Warren wrote. “Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish' those investigated are indefensible.”
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Whereas Warren couched much of the opinion in restrained language, those sentences spoke from his heart and personal experience. As governor, he knew legislatures, and as a nominee, he had been pilloried and belittled by William Langer in 1954, had been called a drunk, and had his loyalty questioned—all by an “investigator” interested in “personal aggrandizement” whose inquiry, at least as he conducted it, served no legitimate task of Congress. “Now that you have been shot at, you know what it's like,” Burton Crane had written to Warren at the end of Warren's travesty of a confirmation hearing. Crane had urged Warren to add his voice “in protest against the marauding bands ambushing our freedoms.”
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It had taken four years, but on June 17, 1957, Warren did just what Crane had asked him to do. “There is,” Warren concluded, “no congressional power to expose for the sake of exposure.”
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And that was not all. In addition to the two legislative cases announced that day, the Court handed down two more. The first,
Service v. Dulles et al.,
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reinstated John S. Service, a State Department China expert who had been cleared of disloyalty time and again but who was eventually fired by Secretary of State Dean Acheson in 1951 after a loyalty review board mysteriously concluded that there were doubts about him. The second,
Yates v. United States,
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voided the convictions of fourteen California Communists under the Smith Act, freeing five immediately and ordering a new trial for the other nine. As with the other two cases decided that day,
Service
and
Yates
were written with care not to overreach. What's more, both were the work of Harlan and thus bore his trademark craftsmanship and conservatism. In
Yates,
for instance, Harlan painstakingly dissected the meaning of the word “organize,” as the defendants were convicted for their work in “organizing” the Communist Party. Having concluded that the organization of the party occurred in the 1940s and the defendants were not indicted until 1951, he announced that the statute of limitations barred their convictions, hardly a sweeping constitutional conclusion. Similarly, in
Service,
the Court did not overrule the regulations allowing the secretary of state to fire employees for disloyalty; it only concluded that those regulations had been misapplied in Service's case.

All those efforts might have dulled the reaction to the decisions, as might have the impressive majorities behind them. But no amount of care in drafting or in assembling votes could blunt the fury that the Court now unleashed. At the FBI, Hoover, so long a Warren admirer, could not believe what Warren's Court had wrought. Testifying before the House Subcommittee on Appropriations, Hoover mentioned
Yates,
the decision involving the California defendants charged under the Smith Act, and noted that the Communist Party heartily approved. One “top Communist functionary,” said Hoover, called the decision “the greatest victory the Communist Party in America has ever received. The decision will mark a rejuvenation of the party in America.” In contrast, some judges considered the ruling foolish, he added. One in particular, one Warren Burger, was favorably quoted by Hoover as deploring the “unfortunate trend of judicial decisions . . . which strain and stretch to give the guilty, not the same, but vastly more protection than the law-abiding citizen.” Hoover understandably was accused of using his testimony to criticize the Court—saying that Communists approved of it hardly qualified as an endorsement. Aides replied by insisting that Hoover only had relayed the reactions of others.
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Hoover and Warren remained civil after what quickly became known as “Red Monday,” but their relations were on a decidedly cooling trend.