WRITING the intimate history of the Supreme Court imposes roughly the same challenge as calculating the size and shape of icebergs from what looms on the surface.
Alone of the great federal institutions, the Court with its cherished tradition of confidentiality conceals its deliberative processes from rude and prying eyes. Years after it has spoken, however momentously, the paper trail of these processes remains murky, depending on who has saved (or released) what documents.
In Super Chief, Bernard Schwartz of New York University law school has undertaken a monumental job of excavation and reconstruction. His aim is to relate the behind-the-scenes history of virtually every decision of the Court between Earl Warren's appointment as chief justice early in Eisenhower's first term and his retirement in 1969.
The cases vary from inconsequential to revolutionary, from picayune due-process cases to such famous decisions as Brown v. Board of Education (outlawing school segregation), Gideon v. Wainwright (establishing right of counsel in state felony trials), Engel v. Vitale (outlawing officially-composed school prayers), and Baker v. Carr (mandating state legislative reapportionment).
The portrait of Earl Warren himself is a bit dry, if consistently admiring--this is a "judicial biography." Schwartz brushes the high spots of Warren's early career (as chief prosecutor of Alameda County, California, later as popular governor), his passion for fairness (he thought of himself in the role of a "chancellor," a judge of equity, Schwartz says), his dedication to wholesome family values, his distaste for libertine books and films that sometimes pushed him into incongruous views in First Amendment cases, his strong will, and, not least, his abiding political passions, including an unsubdued dislike for his old rival Richard Nixon.
Schwartz seeks to document the now familiar case that Warren's personal leadership largely shaped the adventurous judical doctrines of the "Warren Court," which indeed was often the case. It was notably so in the handling of the school segregation cases, unresolved when the sudden death of the weak and mediocre Fred Vinson vacated the chief justiceship--the first evidence he had seen, Felix Frankfurter heartlessly quipped, that God exists. Warren, taking over, knit together the Court's frayed factions and guided it to a unanimous decision in the Brown case.
But the question of Warren's dominance remains a bit problematical. Often, the decisions to which Warren rallied a "liberal" majority simply vindicated earlier dissents by Justice Hugo Black. In many important ways, the "Warren Court" witnessed the ripening of Black's philosophy. The Alabamian (not, incidentally, "Alabaman") fathered many of the vital theories buttressing the Warren judicial revolution--notably the doctrine that the Bill of Rights applies to, and controls, state as well as federal procedures. Schwartz shows, too, that Warren often made skilled use of William Brennan, who quickly became Warren's favorite lieutenant when he joined the Court, as a consensus writer of "liberal" opinions.
The long-term loser in this battle for the mind (or heart) of the Court was Black's old nemesis Felix Frankfurter, custodian of the tradition of "judicial restraint." Frankfurter had initially tried in his famous schoolmasterish fashion to make a disciple of Warren; but despite some early success the pupil soon strayed and to Frankfurter's chagrin developed a will of his own. Frankfurter is shown here as a sulky loser, exchanging sour mutterings about the Court's blossoming activism with such correspondents as retired justice Sherman Minton.
Schwartz, beyond his obvious sympathy for Warren, plays no favorites. Yet his book subtly enhances the stature of Brennan (and, surprisingly, Tom Clark) while diminishing those of Charles Whittaker and Thurgood Marshall and leaving others of unquestionable importance somewhat in the shadows--perhaps because, in some cases, the paper trail is thinner.
Schwartz's laborious reconstruction of the Warren Court's internal history unavoidably sharpens the impression that chance and personal chemistry sometimes govern the evolution of judicial doctrine. Repeatedly, majorities and pluralities are shown chopping and changing, appearing and disappearing like tidal sandbars as tentative opinions and dissents circulate.
The evolution of Baker v. Carr is a notable illustration of the point. The available documents suggest to Schwartz that in the famous Tennessee apportionment case there were several votes for "reaching the merits" and mandating a standard for alloting seats in the state legislature. They did not become a "court" (a ruling majority or plurality), however, and the decision only held that malapportionment was no longer a "political thicket" forbidden to judges. Had this initial sally into the forbidden thicket yielded a constitutional standard, Schwartz speculates, that standard might have been less rigid than it ultimately became in later cases ("one man, one vote"). Geography, as well as population, might have been a permissible consideration, as in congressional districting.
This and other "roads not taken" reinforce, if Schwartz is right, the enduring public suspicion that the Court often reaches brokered judgments differing more in degree, political independence and refinement than in kind from those of the more avowedly political branches of government. If so, the fact will shock only those who believe the Constitution both static and self- interpreting.
Super Chief is an impressive preformance, a tour de force of research. For students of the Court with an appetite for the minutiae of internal process it is a feast --almost all you wanted to know but feared to ask about who thought what, when, about which cases, before the red curtains parted on decision day. There is by reason of sheer volume an occasional lapse of proportion and shapeliness as themes meander through the judicial shrubbery. There is a minor danger that for even the thirstiest connoisseurs of backstage history, there is occasionally too much of a good thing.
I must add, however, that Schwartz's technique of reconstruction inspires a couple of substantial reservations which are not really his fault.
The intense focus on process, one suspects, articially magnifies the role of chance, whim and personal chemistry. And because not all justices are equally assiduous record-keepers, and vary in their archival practices and their accessibility to the historian, the reconstruction of cases may be a bit one-sided. Before his death Hugo Black--whose historical importance has been noted-- tragiclly insisted that many of his intimate Court papers be burnt. On the other side, there are some textual clues that Schwartz has had the run of uncited records of other members of the Warren Court.
Since Schartz is anything but a violently partisan biographer, there is no obvious tilt. But in both its strengths and weaknesses this book demonstrates the need for a more systematic preservation of the private papers and archives of Supreme Court justices. It would be good for Court history, hence good for its historians and all the rest of us, if all justices kept all their notes, memoranda, letters, and annotated "circulations" of tentative opinions, if necessary placing them under seal for an appropriate time after service.
Were that the standard practice, students of the Court could work from more than two or three isolated angles, and judicial archeology would be an easier art.