A Fine Balance
How a liberal Republican governor shaped the modern Supreme Court.

Reviewed by Jeffrey Rosen
Sunday, December 17, 2006


Earl Warren and the Nation He Made

By Jim Newton

Riverhead. 614 pp. $32

This is a good time for a reexamination of the late Supreme Court chief justice Earl Warren. The recent appointment of a new chief justice, John G. Roberts Jr., raises the question of what makes an effective chief. And Roberts's rejection of the freewheeling pursuit of justice and fairness that Warren represented makes it useful to ask whether Warren deserves to be ranked among the handful of chiefs who have been considered an unequivocal success.

In his excellent new biography, Jim Newton, a reporter and editor for the Los Angeles Times, argues that Warren was indeed among the greatest chiefs in history precisely because there was little divergence between his politics and his jurisprudence. As the Republican governor of California from 1943 to 1953, he had been a centrist progressive who devoted himself to building consensus among ideological opponents; on the court, he did much the same thing. Although not all readers will share Newton's admiration for Warren's jurisprudence, Justice for All argues convincingly that the most effective chiefs are the most politically savvy -- and are more concerned about unanimity and consensus than about ideological purity.

Although President Dwight D. Eisenhower expressed disappointment in Warren's judicial apostasy after appointing him in 1953, he should hardly have been surprised. In Sacramento, Warren was known as a liberal moralist who ended discrimination against Mexican schoolchildren, opposed loyalty oaths at the University of California, infuriated the state's medical establishment by championing universal health insurance, and opposed gambling and vice. During World War II, he had supported the relocation of Japanese aliens from the coast to internment camps -- a position he came to regret -- but otherwise defended civil liberties.

Throughout his life, Warren detested his fellow California Republican Richard M. Nixon -- Warren and President John F. Kennedy giggled like schoolboys on Air Force One after Nixon's gubernatorial defeat in 1962 -- and denounced the red-baiting illiberalism that Nixon embodied. When he joined the court in 1953, Warren considered himself an activist nonpartisan, despite having run for vice president as a Republican in 1948. He was a self-described liberal, at least on social issues, and far more progressive on race than the Southern Democrats of his era.

As chief justice, Warren had little hesitation about acting in the same way he had as governor. Guided above all by his personal instincts, and by his quest for what his fellow moderate Republican lawyer Leonard Garment called "nontechnical justice," Warren moved quickly to persuade his new colleagues to embrace his vision. Warren's greatest success came right away in Brown v. Board of Education (1954). Newton describes how Warren worked the high court like a canny politician, seeking out his colleagues for advice rather than trying heavy-handedly to impose his will, and in the process persuading them to join a unanimous opinion striking down school segregation.

Warren wrote some of the most famous passages in Brown in his own hand. But for much of his tenure, he delegated most of the writing to his clerks, giving them broad guidance about his vision of fairness and justice and not fussing about the technical details. This emotionalism sometimes made his jurisprudence seem unprincipled, despite his purported devotion to principle. Warren's draft opinion in the case requiring police to read suspects their Miranda rights, Newton acknowledges, seemed "nearly as much the work of a governor as that of a justice." And Warren opposed the burning of draft cards in 1968 but supported students' right to curse the draft in 1969, apparently because his nemesis, Nixon, had won the 1968 presidential election and Warren had turned against the war. At times, his tendency to view all legal issues in personal and human terms seemed jarringly political.

Newton's subtitle -- "Earl Warren and the Nation He Made" -- suggests that Warren single-handedly transformed the country by imposing his enlightened vision of humane, nontechnical justice on a divided America. But Newton's scrupulous narrative points to a more subtle conclusion: Warren was most successful when the White House and Congress supported his vision and less successful when the political branches opposed him. Because Eisenhower hardly concealed his distaste for the Brown decision in 1954, meaningful desegregation didn't occur until a decade later; by contrast, some states reluctantly obeyed the decision striking down school prayer in 1962 largely because President Kennedy unequivocally endorsed it. As a practical politician, Warren understood that the court is powerless in the face of strong political opposition.

Because the hearty, wholesome Warren was a somewhat bland figure, Newton's biography is necessarily less colorful than biographies of judicial rakes such as justices William O. Douglas and Oliver Wendell Holmes Jr. And readers who prefer more analysis of Warren's decisions may prefer earlier biographies by the legal scholars Bernard Schwartz and G. Edward White. But because Warren's personal experiences were so inseparable from his jurisprudence, Newton's comprehensive and balanced political history usefully cuts through the technical details and casts fresh light on Warren's legacy.

Newton ends his book by lamenting that Warren's centrism has little political constituency today: "Too straight and too Establishment to fit a liberal model, too devoted to an expansive civil libertarianism for conservatives to honor him, Warren falls between our modern cracks," he writes. "The nation today -- certainly the Court -- is less fortunate not to have one of him." In fact, Warren may indeed have a modern heir: the centrist activist Anthony M. Kennedy, who played at Warren's feet as a child and shares his fellow Californian's faith in the ability of enlightened judges to run the country by short-circuiting messy political debates. But Kennedy lacks Warren's greatest skill: his ability to build coalitions on the court and to win over ideological opponents by skillful persuasion. That is a talent that Chief Justice Roberts, who has made it a priority to promote unanimity and consensus, seems to have in abundance. And in that sense, despite their very different visions of the role of the court in American life, Warren and Roberts may have more in common than either of them could have imagined.

Jeffrey Rosen is the author of "The Most Democratic Branch: How the Courts Serve America." His new book, "The Supreme Court: The Personalities and Rivalries that Defined America," will be published in January.

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