A great Chief Justice
TABLE TALK
DENIS BROGAN
An event of great symbolic and, possibly, of great practical importance has added to the sufficiently complex political and institutional life of Washington. Earl Warren, Chief Justice of the United States, has resigned. Head since 1953 of the greatest court in the world, Chief Justice Warren has had an extraordinary career, extraordinary in the sense that few can have foreseen that, under him, the Supreme Court would enter upon one of the two or three most 'activist' periods in its history and that some of the decisions of the Warren Court would be as important and, many would say, as revolution- ary, as any in the history of the court, and that it would not seem mere eccentricity for eminent academic lawyers like Professor Fred Roden of Yale to compare Earl Warren with the greatest of his predecessors, John Marshall.
It is difficult to make the English, even the British student of affairs, understand the im- portance of the Chief Justice, any Chief Justice. For he holds an unparalleled office. No other chief of a court is like him, no Lord President or Lord Justice Clerk, not to speak of Lord Chancellors or Lord Chief Justices. For the Supreme Court is the quiet eye of the storm, as Oliver Wendell Holmes put it, and the functions of court as well as its attitudes vary a great deal, as does its importance, depending on the views, personality, industry and weight of character of the Chief Justice. True, the Chief Justice is in theory only primus inter pares and once or twice it has been doubtful, if he has even been that. A Chief Justice who fails to 'mass the Court,' as Chief Justice Taft used to put it, fails in one of his main duties and a great lawyer and great Associate Justice may not be a great Chief as friendly critics said of that remarkable Justice and then Chief Justice, Harlan Fisk Stone.
A great Chief Justice need not be a great lawyer or even a learned lawyer. A dominant Chief can say in the spirit of the Lord Chan- cellor in lolanthe that 'I, my lords, embody the law.' He also makes it. John Marshall was not a great lawyer; he did not pretend to great learning; some of his most famous opinions are neither legally nor philosophically impres- sive. (A very eminent Oxford logician of the old school once said to me that he didn't under- stand what lawyers meant by logic.) But with. Marshall, the office, the time, the personality, the opportunities for making the United States the embryo of a nation state, all came together. No wonder President Jefferson detested his kinsman!
Many people detested Chief Justice Warren. I have seen the 'impeach Earl Warren' stickers in his native state of California but not, even in Texas, the demands for his assassination or lynching or execution that I have been told have been visible in Texas, Georgia, etc. And, in a sense, the impeachers were right. For 'the Warren Court' was, from the point of view of an old-fashioned Southern states rights politi- cian, revolutionary.
That it would be revolutionary was not fore- seen by that far from revolutionary figure, President Eisenhower, who, after his first elec- tion in 1952. paid off (rather reluctantly it was reported) an important political debt owed to the Governor of California.
From a British point of view, the appointment was rather odd. Governor Warren was a mem- ber of the bar but not, in the academic sense, a lawyer. He had made his first reputation as District Attorney of Alameda County, across 'the Bay' from San Francisco and it was the reputation of a tough prosecutor who outwitted the local Perry Masons that he took with him to Sacramento when he was elected Attorney- General of California and the charge that he had the prosecutor's temperament never quite died down. Yet ffiis promoted 'DA' was one of the boldest and most effective defenders of
the rights of the accused, above all culminating in the great Gideon case about which Nlr Anthony Lewis of the London bureau of the New York Times has written so well.
When the character of the Warren Court became clear, it was a common charge that no man without judicial experience should be made Chief Justice or even a Justice. But the history of the court refutes this theory. Two of the greatest Chief Justices, Marshall and Taney, had no judicial experience. Most American lawyers, off the record, would accept the implications of the answer Lord Russell of Killowen gave to Gladstone who asked him if Sir William Harcourt knew enough law to be made Lord Chancellor. 'Yes; he knows enough law to be Lord Chancellor. Of course, he doesn't know enough law to be a County Court Judge.
So it was with Earl Warren. There were drawbacks to his legal limitations. Many not unsympathetic critics thought that the con- clusions of the opinions (and of the dissents) did not always follow rigorously—or at times at all—from the argument, that the. Chief Justice passed over objections too easily and, willing the end, was careless about explaining and justifying the means. This brought him into frequent conflict, on the republican bench of American Themis, with the subtle mind and self-denying doctrines of Felix Frankfurter. At times, the Chief Justice rounded on his tiny colleague, his Scandinavian blue eyes cold as John Kennedy's, as Campbell-Bannerman rounded on Balfour. 'Enotfgh of this foolery' was the common answer of the Scot and the Swede.
The most famous case of the Warren Court was the schools segregation case of the Topeka School Board. But the most important (I think) was Baker v. Carr, a lit de justice in which the Supreme Court passed and ordered the inferior federal courts to enforce its own Reform Bill. Justice Frankfurter held with plausibility that the case was 'political' and so outside the jurisdiction of the Court: it should be settled politically. But Warren, who had been elected Governor three times (twice on both the Repub- lication and Democratic tickets), knew a Gordian knot when he saw one. He cut it and we are only beginning to see the effects of Baker v. Carr in the new weight given to the urban majority in American politics.
Earl Warren was sometimes accused of being a faux bonhomme. He was a bonhomme in more senses than one. But he was a 'good and tough political fighter. He thought that he had been 'sold down the river' by young Mr Nixon And he never pretended to forgive him. His enthusiasm for his political partner in 1948, Governor Dewey, was (I think I can testify) tepid. It is possible that he has resigned now to give President Johnson a chance to fill the great officer before the chance is given to President Nixon. That his tenacity of political memory and his sense of the role of the 'Warren Court' go together will not have escaped him. Without living a hermit life, the Chief Justice did not play the social role open to him, or exploit the beauty of his daughters (as beautiful not merely as the Kennedys but as the elder sister of Princess Grace of Monaco, Mrs Smith of Chicago). Despite the impeachers, he has been a great Chief Justice. But he had a fault. He once congratulated me on an address I gave at a law school on the duty of lawyers, judges and barristers alike, to educate the lay public. It was a duty he neglected. We may be sure it will not be neglected by Chief Justice Fortas.
Previous page
