EARL WARREN's rank among Supreme Court justices is debatable. Some careful observers of the Court's work place him among the half-dozen most influential men ever to serve there. Other observers, with equally good credentials, rate his work on the Court as second- or even third-rate and argue that his reputation rests solely on his "luck" in being chief justice from 1953 to 1969.
Either conclusion is supportable. Earl Warren, after all, was chief justice when the Court put an end to officially sanctioned segregation and malapportioned legislatures, clipped the power of congressional committees, and required major changes in law enforcement practices. He was in the majority in almost all of the Court's major decisions--and often its spokesman--during a period when it flexed its muscles in extraordinary ways. That suggests influence and greatness.
On the other hand, the long-term reputations of Supreme Court justices have rested traditionally on their articulation of legal theories that influence future judges. Some of Warren's colleagues--Justices Black, Frankfurter and Harlan, for example--carved their historic niches with carefully crafted, persuasively argued and heavily documented theories of how the Constitution should be interpreted or of the Court's proper role in the American system of government. Warren did not do this; his opinions often gave the impression of being totally result-oriented, good for this case and date only, without regard for either the past or the future.
This lack of a doctrinal base has made Warren's work on the Court an easy target for critics. Many of them paint him as a commonplace politician who shifted his views as he felt like it, an intellectual lightweight who relied on his colleagues for the judicial theories he needed to justify the results he wanted in particular cases.
G. Edward White, a professor of law at the University of Virginia and a former Warren law clerk, has set out to contradict this latter view. White believes that Warren had a consistent, cohesive philosophy, developed in his early years in California, that guided him throughout his public career.
White's book, Earl Warren: A Public Life, is, as the author notes in the preface, a "selective" biography. It focuses on certain events of Warren's life to demonstrate that Warren, the chief justice, was "a different kind of legal technician, unorthodox rather than inept, and that his theory of judging, while uniquely his, was not without its own theoretical integrity."
White is remarkably successful. While he falls short of squaring some of Warren's actions in California with some of his decisions as a Supreme Court justice, White does develop a thesis of Warren's decision-making process with which every future Warren biographer or Supreme Court historian will have to cope.
Oversimplified, it is a view that Warren reverted to the 19th-century practice of letting a personal sense of right and wrong determine the outcome of cases, supporting the result with any convenient legal rationale. Modern jurisprudence disapproves of this; rather, judges should rely on reason (as contained in precedents and doctrines) or tight interpretation of the original meaning of constitutional language or an institutional theory of a judge's role--often described as "neutral principles" of adjudication.
Warren rejected this method of judging, perhaps because Justice Frankfurter pushed it at him so forcefully. Instead, he turned to the ethical values he found underlying the Constitution. For Warren, White writes, "Principles of fairness, decency, individuality, and dignity were . . . constitutional imperatives that the Court was under an obligation to consider . . ." Thus, Warren believed that "vindication of the basic ethical imperatives of the Constitution" was more important than doctrinal consistency.
The danger in such an approach, of course, is that it provides judges virtually unlimited freedom to write their personal ethical standards into law. Whether they are "good" or "bad" judges, then, depends on whether their personal ethics coincide with those of the critic evaluating their work. Whether they are influential in the long run depends upon how closely their standards match those of the public as a whole, not only at the moment of decision but over time.
Part of White's theme is that Warren's ethical standards can be traced from his childhood and early years as a district attorney through his experiences as attorney general and governor to his time on the Supreme Court. Warren was a "progressive," not a "conservative" or a "liberal," White writes, who deeply believed all along in the keys to progressivism--morality, patriotism, and progress (change for the better).
This leads White into some of Warren's actions in California that seem to conflict directly with opinions he wrote as chief justice--his handling of criminal suspects, his attitude toward Japanese-Americans, and his actions concerning communists, communist sympathizers and loyalty oaths.
In each instance, White contends, Warren was balancing his own ethical imperatives; the weight he gave to one or another of them shifted depending on the facts. Warren, the chief justice, for example, was inclined to give fewer constitutional protections to criminal suspects he regarded as inherently immoral (gamblers and purveyors of obscene literature) than to those who might be redeemed (burglars and robbers).
These vignettes are laced together with enough other historical data to qualify the book as a biography, but it is in the analysis of Warren's philosophy that White excels. That analysis makes this the most provocative book yet written about the 14th chief justice of the United States.