Nothing quite like the nomination by a conservative president of not one but two liberals to the Supreme Court had ever happened before, and to this magnitude, has ever happened since. It’s a fantastic story that merits story like treatment, so here goes.
Ladies and Gentlemen let me turn you on to a mystery of magnificent proportions. It’s the mystery of one of the stories of how the United States became a more tolerant nation than it had ever been and the bizarre way that particular story unfolded.
You see, at one time the United States was a country where blacks and whites and Latinos were forced to attend separate schools and use separate facilities. It was a country where even the slightest convenience or life saving need was parceled out on the basis of race. Water fountains were segregated, ambulances were segregated. Why you could not be guaranteed a jury of your peers if your peers were black and you were on trial. In Texas they used to categorize Latino’s as legally white, and even though the law said they were white, the Anglos weren’t about to translate that into fair and equal treatment so when a Latino was on trial for his life, they’d give him a jury of his peers alright, a jury of non- Latino white people. These were amazing times.
The black people and the Latino people did not like this one bit. And they protested, and they died, and they even sued for justice. Some brave lawyers like Thurgood Marshall and Robert Carter and Spotswood Robinson and Gus Garcia and Carlos Cadena took cases to the highest court in the land and for a while it seemed like there would be some small amount of change from the court but people were beginning to lose patience.
It was also a time when a two bit senator from Wisconsin could intimidate the socks off people simply by subpoenaing them to come to Washington and rat on their friends, or to tell the Congress about their membership 20 years earlier in a club called the Communist Party. It was also a time when a cop could intimidate anyone he wanted to with physical violence or trickery and coerce a confession out of someone and not provide them a lawyer or any other rights guaranteed by the constitution.
Well most of that changed but first let me tell you about this guy named Eisenhower. Now Eisenhower was in the army and even though he never saw combat, he kept getting promoted through the ranks until one day he was promoted over guys named Patton and Marshall and asked to run the Allied invasion of Europe and chase after this Hitler fellow. He did and won that war and he was immensely popular, so much so that they asked him to become President of Columbia University. He never did say much about race issues in those days and rumor had it that he enjoyed a good Negro joke every now and then.
Well, this guy Truman was president after the war and many folks did not think that he was doing a terribly good job and since Eisenhower was a Republican and Truman was a Democrat, old Ike was asked to run for president. Ike won and set upon doing what conservative Republican presidents do, they do conservative things.
Now before I get back to the black and Latino people, let me tell you about this guy named Earl Warren. He too was a Republican but nobody could really tell if he was a conservative or not. At one moment he seemed pretty liberal pushing for anti job discrimination in his native California where he was governor. But then on the other hand, when he was the California attorney general he went out of his way to see that Japanese Americans were shipped away from their homes in California and forced to live in shacks in Arizona during World War II because their ancestors were from Japan, against who the US was at war. Funny thing though, the US was also at war with Germany and Italy, but he never seemed that concerned about Italian or German Americans living in California. This guy Warren kept running for president even though he kept losing. In fact, he even lost as a candidate for Vice President. Finally he decided to run one last time and he decided that if he could not get the Republican nomination, he would at least have some say as to who would. So when it became apparent that he would not be the next nominee of his party he set about helping the eventual nominee, that Eisenhower guy get the nomination.
Now rumor has it that old Ike cut a deal with Warren and promised him the first open spot on the Supreme Court in exchange for the help at the convention. All of their friends died denying it decades later, but we do know that Ike did promise Earl a spot on the court at some point, but their friends say that he did so after he won the election.
Fast forward a few months. The Black people finally got a case before the Supreme Court that would integrate the schools. But the Court just wasn’t ready to go there yet so they told the lawyers to come back next year and reargue some points. Next thing you know the Chief Justice of the Supreme Court, old Fred Vinson, just up and died. And now there was an opening on the Court.
Uh oh, President Ike did not anticipate that the first vacancy would be that of Chief Justice or that his promise to Earl would apply to that position. So he sent his buddy and Attorney General to Cali a guy named Herbert Brownell, to find out what Earl thought. Well Earl said “ A deals a deal!” and with Congress out of session Ike made good on his promise and appointed Earl to become Chief Justice of the Supreme Court as a recess appointment.
He sure was in a rush to get him on the Court. Many people wonder why. Well one reason is that the other members of the Court were afraid of what was coming and did not want to face what was coming alone, without a Chief Justice. You see they were going to hear that rehearing about the black kids and the schools. They were also planning on hearing a case about a Mexican American being tried for murder with a jury of real white people and not a single Latino among them. And the court wanted a Chief Justice. So Ike appointed Earl fully aware that these cases were coming up.
Ike had said publicly that he did not like the idea of the feds getting involved in state school systems. But he did not seem to mind the feds getting involved in their own schools—like schools on military bases—he ordered them integrated. He also did not have problem with anything else run by the feds being integrated—he ordered integration of all federal facilities. But when it came to the schools and life in general in the South, he wondered why could we just go with the old cases like Plessy v. Ferguson that said that separate but equal was constitutional. So Ike was not looking to pick a fight with the South.
Earl, on the other hand, was not letting on what he felt about the subject. A lot of folks thought that he was fair as a governor to minorities, that is all minorities except for Japanese Americans, but he was not known for being a big time liberal. Ike did not think so either, he wrote his brother that he like Earl because he understood management since he had been a governor, and that was what he wanted in a Chief. He also said that he thought Earl was a “liberal conservative”, whatever that means. So he was happy to appoint Earl though Earl had given no indication what he thought about the cases pending before the Court when he was appointed.
Ike was not interested in any activist judge made law in his first term and he certainly did not want to be the president to preside over a second civil war—white folks in the South felt pretty strongly about their segregation. So Ike invited Earl, the attorney for the states that did not want to integrate their schools, and some other folks to his house (the White House) for drinks and cigars—a stag party as they called them in those days because only men were invited. He took Earl aside and said that the southerners “are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.” Right there in the White House. Earl was shocked—so shocked that he wrote about it in his autobiography years later.
But on the other hand Ike’s attorney general wrote a friend of the court brief in support of the black’s quest to integrate those schools, a brief that Ike reviewed and approved.
What kind of guy was Ike? Did he know what kind of guy Earl was? Did he care?
What kind of guy was Earl, Chief Justice Warren? Well, he came on to the Court and managed to get the whole court, even that nerdy little Felix Frankfurter, to stand behind him in issuing an opinion integrating the schools. He even got the whole court, even that nerdy little Felix Frankfurter to stand behind him in issuing an opinion saying that Texas needed to make sure that when a Mexican American was on trial he better have a realistic opportunity to have a jury of his peers, and by that the court meant Latinos.
Was Ike happy? After all he approved the brief submitted by the United States in support of the black school kids and after all he called for integration of federal schools earlier. But there was something about that southern culture that he was not too keen on upsetting. He had friends in the South including former Supreme Court justice and then South Carolina governor James Byrne who kept trying to get Ike to intervene and stop this foolishness on the court’s part. But instead he declined to do so, even though everyone, including his attorney general Brownell knew that Ike did not like the outcome of the decision. Earl went to his grave bitter that Ike did not do the presidential thing and declare support for the decision in the first months of the decision. Instead old Ike groused about saying only that he would enforce the law—that’s it, no “this is good for America” or “the Court did what the Constitution required”. No sir, none of that. Just “I’ll enforce the law”. And then when given the chance twice he declined to do just that. Twice southern governors, including Governor Allen Shivers right here in Texas, started talking like the Civil War had never been fought and said that they had the right to disregard the opinion because they felt the opinion was unconstitutional.
What’s the deal with the President? He did not try to stop the opinion, though the Chief Justice believed that he tried to influence the opinion with the big overgrown Negro remark, but he even let his AG file a brief in favor of integration. Then when the opinion comes out in favor of integration, he’s mad. Go figure!
Was this just a mistake of improper vetting and background research before he appointed Earl, or did Earl intentionally deceive the President into appointing him by playing mild mannered conservative before the court? But what is it that Einstein said? Insanity is doing the same thing over and over again expecting a different result? I’m not saying, but he did it again. A few years later he walked into the mouth of the lion this time with his eyes open.
Back in those days when you nominated someone to the court because they were of a particular ethnic group it was called politics and not the dreaded affirmative action. So if a seat had been traditionally held for a couple of generations by a Jewish justice, you fill that spot with a Jewish candidate when it came open. If you felt that your chances of re-election would be enhanced by appointing an Irish Catholic to the Court, you went out and found an Irish Catholic to serve. No big deal. Its politics.
Well the Irish Catholic that Ike picked was William Brennan. And he was a Democrat, known for being slightly liberal. Ike nominated Bill and got re-elected. And when a southern governor, Orval Faubus of Arkansas pushed Ike too far by claiming that Arkansas had the right to disregard the Supreme Court on the issue of school integration, Ike finally got mad and sent the troops in. Meanwhile, quietly, Bill wrote an opinion telling Faubus and anyone else in the South who agreed with Faubus to go to hell. In so many words Bill said “We’re the Supreme Court and we call the shots on what’s constitutional or not, Not You Faubus.”
Meanwhile, there’s this Cold War between the US and the Soviet Union. Everyone is afraid that the Soviets are trying to overthrow the US government from inside using Americans who were secretly members of the Communist Party. At the urging of that Wisconsin senator Joe McCarthy the Congress passed laws making it legal for the government to fire anyone that might be a threat, whether they were or not. States passed similar laws. Even people who were suspected of being homosexuals, a taboo in those days, could be fired because it was thought they could be blackmailed into passing on state secrets or influencing the media, or the schools, or the dog pounds of the country.
Working together on strategy, Bill and Earl were able to get enough votes among the Brethren to overturn most of those laws and in doing so practically shut down the hysteria that permeated most of the 1950s. At the same time the two engineered an overhaul of the criminal justice system by interpreting the Constitution to provide more rights for criminal defendants than they ever had before.
Was all of this to the consternation of President Ike? Or was his reputation of being detached a true description of his style, or was he just crazy—maybe like a fox? There really isn’t much consensus among historians on this at all. What we do know is that Ike once is reported to have said that appointing Earl and Bill “was the biggest damn fool mistake” of his presidency. Was he talking about school integration, criminal justice, the Communist cases, or all of it? What we know is that he told Earl several years after his presidency that he did not like those damn decisions. Which ones Earl asked him. “Those damn communist cases” Earl tried to explain the responsibilities of being on the Court, but Ike would have none of that. So Earl finally asked him what he would have done about the communists. Ike said “I would kill the SOBs.”
Well, at least he did not have as much of a problem with the integration cases.
In a manner of speaking, President Dwight Eisenhower is responsible, whether he would have wanted the credit or not, for the biggest social changes in American history outside of the abolition of slavery. He was aware of the issues that the Court was facing and he appointed Earl Warren and William Brennan anyway. Maybe it was stubbornness, or just naiveté, though it's hard to believe that the leader of the largest military operation in human history would be naïve. Or maybe it was an approach to the Supreme Court and the appointments process on Ike’s part that called for the appointment of whatever candidate that the vacant seat called for and to let the political and social philosophy chips fall as they may. And though there were other actors in this drama, Thurgood Marshall, Martin Luther King, Gus Garcia, countless numbers of citizens who demanded civil liberties, it’s fair to say that the Supreme Court decisions of that era lead the way and opened the door to the cultural changes of the 1960s. Without whatever it was that happened in those nominating processes that gave us Chief Justice Earl Warren and Associate Justice William Brennan, none of what eventually happened in the 1960s would have happened. Crazy, naïve, or not, you gotta give old Ike credit.
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