Justice for All (99 page)

The case began on the streets of Cleveland on the afternoon of Halloween in 1963. Detective Martin McFadden of the Cleveland police department was at work that afternoon when he spotted John Terry and Richard Chilton, two black men, standing on a corner in a neighborhood known for pickpockets and thieves. McFadden was a veteran police officer, with thirty years' experience and knowledge of the neighborhood in downtown Cleveland. He couldn't say precisely what bothered him about Terry and Chilton, except to say that “they didn't look right to me at the time.” As he watched from a few hundred feet away, the two men paced along a sidewalk, gazed into store windows, and then conferred with each other. They repeated this several times, and McFadden, by now very suspicious, concluded that they were casing the stores, planning a robbery.
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The detective approached the two men. He asked their names, and when they “mumbled” a reply, he spun Terry around and patted down the outside of his clothing. McFadden found a gun and then found one on Chilton as well. They were arrested, charged with carrying concealed weapons, convicted, and sentenced to prison. Their convictions were upheld on appeal, and the Court then accepted their case for review.

At their December 13, 1967, conference, Brennan suggested that the case depended on a finding of probable cause—“probable cause to investigate suspicious behavior and ask the person to give an account of himself, and probable cause to believe that a suspect might be armed and dangerous.” The other justices agreed and unanimously voted to uphold Terry's conviction (Chilton, though also convicted, had died before the case reached the Supreme Court), though Warren warned that he believed that unless the police had sufficient cause to arrest the suspect, the suspect could simply walk away without answering the officer.
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Since Brennan had first articulated the “probable cause” approach, he expected to be given the opinion; Warren instead took it himself, disappointing his colleague. Warren's first attempts illuminated how affected he was by the charge that the rise in crime was somehow his fault or that of his Court. The first draft was “almost embarrassingly sympathetic to the plight of the policeman.”
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The second was much better. “The opinion,” Brennan's clerks wrote, “read dangerously much like an apology for past decisions which have been charged with having overly restricted the police.”
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In a memo to Warren, Brennan gently suggested that the opinion would be read against the “alarums being sounded in this election year in the Congress, the White House and every Governor's office.” Given that, Brennan implored Warren to modulate his tone and not appear to give too much license to police. “It will not take much of this [increased police aggressiveness] to aggravate the already white heat resentment of ghetto Negroes against the police—and this Court will become the scapegoat.”
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With his memo and private meetings, Brennan went to work on Warren, trying to tone down the apologia and straighten out the logical flaws that flowed from Warren's attempt to back away stylistically from
Miranda
without substantively undermining it. All of that was time-consuming, and deliberations among the justices over
Terry
continued through the spring.

Then came the cataclysmic series of events of 1968. The first erupted in a far-away jungle at the end of January, when 70,000 Communist troops launched simultaneous attacks on more than a hundred South Vietnamese cities, including the capital, Saigon. The Tet offensive was repelled, and the enemy suffered heavy casualties, but the breadth of the assault showed that the North Vietnamese were far from folding. Johnson teetered toward exhaustion as he paced the White House halls at night awaiting updates from the combat theater. Meeting privately with his old friend Richard Russell, Johnson broke down in tears.
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Anguished by the war and stunned by Eugene McCarthy's surprisingly strong showing in the New Hampshire primary, Johnson on March 31 astonished the nation and even his own advisers by concluding a speech on Vietnam with a self-inflicted end to his life in politics. “I shall not seek, and I will not accept, the nomination of my party for another term as your President,” Johnson announced that night.

Hugo and Elizabeth Black opposed the war, but applauded the president's speech. It would, Hugo said, “make LBJ a hero.”
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Warren, then still a supporter of the Vietnam War, was moved as well. “Your burden has been great but your reward will be greater,” Warren wrote to the president whose reelection the chief justice had hoped for.
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Johnson worked hard on his reply, uncharacteristically fiddling with several drafts. In the words he finally settled on, the president called Warren “the kindest as well as the wisest man I have ever known. Your recent letter,” Johnson added, “confirms my judgment and adds to my great debt of the heart.”
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Barely had the nation absorbed Johnson's news before it was confronted with another, far more tragic loss. Martin Luther King had come to Memphis, Tennessee, in the spring of 1968 to support that city's sanitation workers in their tense negotiations with City Hall over union representation and over efforts to settle a strike begun in February. King led a march on March 28, but it degenerated into violence and police reprisal before the National Guard was called out to restore order. On April 3, King returned to Memphis and appeared before the group supporting the sanitation workers. Near the end of his speech that night, King reflected on the threats made against his life by “some of our sick white brothers.” “Well, I don't know what will happen now. We've got some difficult days ahead,” he conceded. But, he added in strong and melodic voice,

 

The following day, King was dead. America's cities exploded. “All hell has broken loose in Washington,” Elizabeth Black wrote in her diary. “Phones are jammed and it is incredible that the Nation's Capital is in the hands of lawless mobs.”
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Johnson dispatched federal authorities to Memphis to search for the assassin—James Earl Ray would elude police for weeks. In Washington, the president summoned advisers and surrounded himself with icons of the struggle for civil rights. Fortas, who had argued
Gideon,
was there. Marshall, who had argued
Brown,
was there. And of course, Warren, who had led the Court in those and so many other cases advancing the cause of American blacks, was there as well. Marshall and Warren accompanied Johnson to a memorial service for King even as large chunks of Washington were set afire. So edgy were those hours that Floyd McKissick, a leader of the Congress of Racial Equality, demanded to know the guest list before agreeing to attend a White House meeting with civil rights leaders, then, hiding in fear for his life, showed up at the White House gate “with two other Negroes.” Told he could join the meeting but that his companions would have to wait, McKissick disappeared into the afternoon.
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The president's withdrawal from the 1968 campaign and King's assassination occurred within a single week. Just as the nation absorbed those events and the riots in April, it was struck again. Bobby Kennedy, Johnson's longtime nemesis, had entered the presidential campaign late but had come on strong. By June, he had momentum building toward a likely Democratic nomination for president and thus a Kennedy rematch of sorts with Nixon, who was making headway toward his party's nomination that spring as well. On June 4, California Democrats selected Kennedy as their candidate for president. At the Ambassador Hotel in Los Angeles, he accepted the victory just after midnight on June 5, then headed for the exit through the kitchen. There, Sirhan Sirhan, a twenty-four-year-old Arab immigrant infuriated by Kennedy's support for Israel, confronted him with a .22 pistol and fired it over and over into the senator's head and body. Surgeons at Los Angeles's Good Samaritan Hospital attempted to save him but could not. Kennedy, forty-two years old, died on June 6. His younger brother, Ted, eulogized him and put him in the ground that Saturday night, buried by candlelight near his brother the president.

It was against that backdrop and in the face of that violence that Warren put the final touches on
Terry v. Ohio
. The opinion reflected the strains on Warren. One cannot read it without being struck by its caveats, its revealing “howevers” and “on the other hands.” In the end, it upheld the search and deferred to Detective McFadden's experience in order to allow him and other police officers to act to protect themselves and the public from harm, even if it meant patting down suspects based on little more than a hunch. As Lucas Powe notes, it is difficult to imagine Warren's writing such a decision only two or three years earlier. The same chief justice who had outraged police with
Miranda
handed them wide latitude and power with
Terry
. In light of the events of 1968, however, it is difficult to imagine such a practical, political man writing otherwise. Indeed, left to his own devices, Warren almost certainly would have gone further to defend the police. Brennan pulled him back, and only Douglas, who had commended Brennan for his influence on Warren's opinion, nonetheless dissented. With gravity and eloquence, Douglas warned the Court to ignore its critics and exclaimed his individualism:

 

Terry v. Ohio
was handed down on June 10, 1968. The following morning, Warren made up his mind about a matter that he had been considering for some time. At the Court, Warren pulled Fortas aside and asked him to make a call for him; the chief justice said he needed to speak with the president. Fortas, with his direct line to the White House, agreed. Johnson asked Warren to come by the next day.
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As long as Bobby Kennedy was in the race, the Democrats had a chance to hold on to the White House—Bobby would never be Warren's favorite, but he promised continuity on racial justice and progress elsewhere. In April, with Bobby in the race, Black urged Warren to hang on; Warren gave no indication that he would leave.
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But now Bobby Kennedy was dead, and the Democratic Party was in confusion. Nixon—always Nixon—was in line to win the Republican nomination and thus stood the real chance of becoming president. Warren was seventy-seven years old, and had battled occasional heart troubles. Though his health was fine again in mid-1968, he could not go on indefinitely. And the prospect of a Nixon presidency meant that he would have to hold on for at least four years—perhaps eight—if he were not to hand over his seat to his old enemy. The sand was running from the glass of the Johnson administration. Soon Congress would be gone for the summer and then the fall session would be overshadowed by the campaigns. Warren knew he needed to act quickly. That Thursday morning, Warren met privately with Johnson for twenty minutes, two aging men bound by the political imperatives of the moment. The time had come, Warren said, for him to retire as Chief Justice of the United States.

Chapter 24

THE END

WILLIAM O. DOUGLAS
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WARREN'S RETIREMENT from the United States Supreme Court took the form of two letters, both delivered to Johnson at their June meeting and then held by the president as he considered his response. The first consisted of a single sentence, in which Warren advised Johnson of “my intention to retire as Chief Justice of the United States effective at your pleasure.”
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The second was more expansive. It detailed Warren's reasons for leaving, or at least those reasons that he felt comfortable disclosing. He began by asserting that he was leaving at a time of his choosing. He was not sick, Warren stressed, nor was he unhappy in his job. “My associations on the Court,” he wrote, “have been cordial and satisfying in every respect, and I have enjoyed each day of the fifteen years I have been here.” The only issue, Warren insisted, was age, and it was “one that no man can combat. . . . I have been continually in the public service for more than fifty years. When I entered the public service, 150 million of our 200 million people were not yet born. I, therefore, conceive it to be my duty to give way to someone who will have more years ahead of him to cope with the problems which will come to the Court.”
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