Justice for All (74 page)

As Brennan was putting the final touches on
Cooper
—incorporating Black's stirring opening passage and adopting suggestions by Harlan for the conclusion—Frankfurter once again annoyed Warren. Despite Frankfurter's long belief in the power of unanimity in the segregation cases, he chose this moment to write for himself, apparently believing that his tutelage of so many lawyers as a professor gave him a special ability to persuade the ever-elusive Southern moderate to listen to the Court. When Warren learned that Frankfurter intended to write a concurrence to
Cooper,
he was furious. He, Brennan, and Black tried mightily to persuade Frankfurter not to do it, but Frankfurter was adamant. “This caused quite a sensation on the Court,” Warren recalled.
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In fact, Frankfurter's concurrence—which substantively added little if anything to the ruling of the Court, which he joined—ended what was left of the relationship between Warren and Frankfurter. They now openly disliked each other; the rift from
Cooper
never healed.

Warren's insistence on obedience to his Court was both constitutionally correct and emotionally inevitable. He had struggled from 1954 through 1958 to protect minorities and dissidents from an often indifferent American political leadership. And yet even as
Cooper
made clear that the Court meant to be taken seriously, Warren and his colleagues effectively withdrew.

Conventional wisdom records the history of the Warren Court as a straight line—an unbroken series of activist rulings on behalf of individual rights. In fact, as Powe astutely notes, 1958 was a signature year in the Court's history, for it combined two nearly opposite events: the assertion of power in
Cooper
and the near loss of that power in Congress, what Powe terms the Court's “near-death experience.”
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The latter event shook the Court's libertarianism and effectively displaced Warren as its leader for a time.

The first signs that the Court's political support was bottoming out came early in 1958, when Learned Hand, prodded by his friend Frankfurter, completed and delivered the Oliver Wendell Holmes Lectures at Harvard .
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By 1958, Learned Hand was an old man, eighty-seven, and his lifetime of thought about the proper role of judges in a democratic society poured out in the lectures. There was a tinge of bitterness in Hand's work, but there was eloquence, too, and deep consideration, the melding of judicial notions that he had honed in his long service on the bench and his extensive, unguarded correspondence with friends such as Frankfurter. While Hand in his lectures never mentioned Warren or his court by name, Hand's discomfort with Warren specifically and of activist judging generally was laced through the three discussions, particularly in the final day. “For myself,” Hand told his standing-room-only audience near the conclusion of his talk, “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”
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Hand's critique was far too scholarly to be generally appreciated—indeed, many of those who did understand it disagreed—but it encouraged the Court's two main legions of critics, the anti-Communists and the Southern racists. Buoyed to be in such learned company and still stinging over Red Monday and the never-ending indignities of the desegregation cases, those two camps pooled their efforts and introduced a host of bills intended to limit the Court's authority or otherwise curb and embarrass it. By spring, the Congress was teeming with ideas for how to restrict the power of the Court. The chief vehicle for doing so became known as the Jenner-Butler bill, which sought to strip the Court of its jurisdiction over domestic-security cases, an idea which, if adopted, would have vastly reduced the Court's power to control its own docket and to police lower court decisions in that field. In addition, passage would have emboldened the Court's critics and opened the door for further congressional tampering.

Warren refused to give quarter. Through late 1957 and early 1958, he and Frankfurter fenced over the case of Albert L. Trop, who, while serving as a private in the Army stationed in Morocco, escaped from the stockade in Casablanca and was arrested the following day on the road to Rabat. He was sentenced to three years of hard labor for desertion and was dishonorably discharged. That might have ended Trop's ill-conceived desertion, but years later, when he applied for a passport, it was denied because the government concluded that he had forfeited his citizenship by deserting from the Army. Hard labor was one thing, citizenship another. Trop sued to regain it, arguing that Congress did not have the power to pass a bill to strip him of his most basic American right—the right to be an American.
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Frankfurter sided with the government, and initially the Court did as well. His drafts from late 1957 are listed as an “opinion of the Court.” But Warren worked his justices as he circulated his thoughts. As late as March 14, 1958, Warren still thought he would file a dissent, but that draft included a new statement about the vitality of the Constitution, and it picked up enough votes to transform it into a majority opinion, one whose language would prove among the most resilient of his work.
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Analyzing the Eighth Amendment's protection against cruel and unusual punishment, Warren wrote, “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
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Rarely has the idea of an evolving Constitution found better expression .
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A more timid chief justice might have let
Trop
go the other way. For as Warren won over his Court in that case, the pressure in Congress against it was rapidly building. By the summer of 1958, the situation was bleak indeed. In highlighting this nearly forgotten episode in the Court's history, Powe compares it to the brinks-manship of the Court-packing debate early in FDR's tenure. That fracas drew much more public attention because it centered so personally on the justices. But the 1958 clash over Jenner-Butler was in some ways even more dire, as it threatened not just the personnel of the Court but its structural and political integrity. And where Court-packing was handily defeated, Court-stripping came within a razor-thin margin of victory at a time when President Eisenhower was in no mood to save it. Indeed, Eisenhower had grown so exasperated with Warren—and by now, Brennan, too—that when Burton went to talk to him that summer about retiring, the president “evidenced disappointment” with those two appointments, remarkably indiscreet of the president given that Burton was a colleague of Brennan's and Warren's.
⁸⁰

The first round of that year's attack on the Court went to the justices when Learned Hand, having encouraged the Court's foes, then refused their invitation to testify on behalf of the bill. Hand deplored much of what the Warren Court had wrought, but he was too intellectually honest to join its most frothing critics. Moreover, although Hand declined to comment on the bill's constitutionality, he did allow that he did not think its provisions removing jurisdiction from the Court were good for the nation.
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The Court's attackers had stumbled into intellectual credibility; now it was taken away. Still, they shouldered on in both houses, amending the bill through the spring and summer and eventually bringing it to the floor of the Senate on August 20. It was there that Majority Leader Lyndon Johnson, who was even then building his national résumé to run for president and thus eager to distance himself from Southern attacks on the bench, worked mightily to keep the bill's supporters from gaining the upper hand. Johnson's efforts barely succeeded, as 41 senators voted against the motion to table; 49 supported the motion, however, and the bill died.

That was not quite the end, as a second bill, this one from the House, proposed to rewrite existing law on Communist investigations and prosecutions so as to make them invulnerable to the Court's opposition. That bill came even closer. The Court's supporters lost their motion to table, then Johnson managed to adjourn the Senate for the day. After berating Hubert Humphrey for miscounting the votes and allowing the motion to table to fail, Johnson alighted upon another tactic to kill the bill. He found Utah Republican Wallace Bennett and persuaded him that if the motion resulted in a tie, Vice President Nixon would have to vote to break it. That vote would haunt Nixon politically, Johnson warned, hurting him no matter which side he came down on. When the roll was called, Bennett, a supporter of Nixon, voted to send the bill back to committee, where it died.
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Across the street, Warren and his colleagues exhaled in relief. One vote had saved them, and it had been cast not in defense of Warren and his Court but in defense of Nixon. The legislation, Warren wrote in repose years later, “evoking as it did the atmosphere of Cold War hysteria, came dangerously close to passing.”
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Some of the justices recoiled at their close shave. Warren himself showed no signs of retrenching, but Frankfurter, already inclined toward restraint, now moved aggressively to back the Court away from controversy. In domestic security especially, but also in segregation and criminal justice cases, the Court withdrew into a period of stunned quietude, a period that lasted until roughly 1960, ending decisively only with Frankfurter's retirement in 1962.

One early test involved the double-jeopardy case of Alphonse Bartkus, who was accused of robbing a savings-and-loan in Cicero, Illinois, on December 18, 1953. Tried in federal court, Bartkus was acquitted, but officials were unwilling to let the matter drop. Federal authorities gathered up their investigative file and shipped it over to state prosecutors, who presented it to a state grand jury and secured an indictment and ultimately a conviction of Bartkus in state court. Because of his prior record, Bartkus was sentenced to life in prison.
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His conviction having been upheld by Illinois courts, Bartkus brought his complaint to the United States Supreme Court in 1957, and the following January, the Court split 4-4, thus allowing Bartkus's conviction to stand.
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He then asked for a rehearing, and the Court granted it, restoring the case to its docket in May 1958 and taking it up again in the fall, when the summer's brush with Congress was fresh in the justices' minds.

Warren, Douglas, and Black never had any doubts about how the case should be resolved. The Constitution bars “double jeopardy,” trying an individual twice for the same crime. In this case, Bartkus had been tried twice for robbing the same bank, and both juries heard evidence gathered by the same investigators. The only substantive difference was the courtroom—in one case, it belonged to the federal government; in the other, to the state of Illinois. That was a meaningless distinction to Warren—and, no doubt, to Bartkus. The chief justice announced from the start that he would overturn the conviction.

Frankfurter had different ideas and several overlapping agendas. First,
Bartkus
offered him an opportunity to tweak Black yet again over their different interpretations of the Fourteenth Amendment and whether it had imposed the Bill of Rights on the states. For years, Frankfurter had been losing that battle incrementally, and here, in
Bartkus,
he wanted the chance to state emphatically that Black was wrong and he was right. Second, keeping Bartkus in jail would send up a white flag to those who believed the Court hell-bent on putting criminals back on the streets. As an act of judicial diplomacy, Frankfurter saw in
Bartkus
the opportunity for tactical retreat.

Initially, Brennan indicated some sympathy with the
Bartkus
prosecutors. Brennan, his clerks recalled, “agreed that two separate prosecutions by a state and the federal government for the same act were not prohibited by the Constitution.”
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But as Brennan reviewed the record, he became troubled by the cooperation between the state and federal governments, by the sharing of information that had rendered the state trial in effect a rerun of the failed federal prosecution. The second prosecution, he concluded, “while in form a state prosecution, was in essence a second federal prosecution and thus was barred by the Constitution.”
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That brought Brennan to his natural place—the company of Warren, Black, and Douglas. And it left both sides—the unrepentant individualists and the world-wary judicial statesmen—looking for a fifth vote. Their feud grew “hot,” in Brennan's word, fueled by the groaning pressure on the Court; it settled on the decision of Justice Potter Stewart.
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Stewart was one of two new Eisenhower justices. The first to arrive, Charles Whittaker, took his seat from the retiring Stanley Reed in March 1957. Whittaker was a skilled Missouri lawyer first named to the federal bench by Eisenhower in 1954. Just two years later, at the urging of the editor of the
Kansas City Star
but over Whittaker's objections, Eisenhower elevated him to the Eighth Circuit Court of Appeals. And then, again with Whittaker objecting, Eisenhower placed him on the Supreme Court in 1957. The judge's rapid rise gnawed at his insecurity, which then mushroomed on the high bench. Whittaker developed the belief that at least one justice should read the entire record of a case, a record that can include thousands of pages. Overwhelmed by the responsibility of serving as a justice and ill-prepared for it, Whittaker struggled terribly. Reflecting back on his tenure in later years, he ruefully characterized his service in baseball terms. “I went to first on a walk, second on a fielder's choice, and I was sacrificed around third to home,” one of his clerks recalls him saying.
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