Bernard Schwartz, a New York University law school professor, has published an inside look at the Supreme Court under Chief Justice Earl Warren based on once-secret notes of the justices' confidential conferences, internal memoranda, draft opinions and interviews with all but one of the living members of the Warren Court, including current Justices William J. Brennan Jr. and Byron R. White.
The material, to be published in two separate books, provides an extensive step-by-step examination of how the justices decided hundreds of cases from 1953, when Warren became chief justice, to 1969, when he retired. It covers some of the court's most revolutionary rulings on desegregation of schools, banning of school prayer, reapportionment, and the rights of criminal defendants.
It recounts the decision-making process from the first private discussions in conference, which Schwartz reconstructs verbatim, to the sometimes extensive negotiations over a crucial paragraph, to the drafting and publication of opinions, concurrences and dissents.
And it shows in detail the sometimes bitter feuding--some of it already well known--that prevailed during Warren's early years on the court as strong personalities clashed. Justice Felix Frankfurter was once heard "screeching" at Warren during a conference, telling the chief justice to " 'be a judge, goddammit. Be a judge,' " Schwartz writes.
Schwartz is publishing his work in two versions.
A 254-page popular version, titled "Inside the Warren Court," was written with former Newsweek correspondent Stephan Lesher and is being published by Doubleday & Co. An 853-page scholarly version, "Super Chief," is scheduled for release this month by the New York University Press.
Some of the material has previously appeared elsewhere, but much has not. Never has so much about the court during that period been condensed in one place.
The books are also unusual because they apparently were written with the open cooperation of justices and former justices.
Justices Brennan and White, who have rarely been interviewed, confirmed yesterday that they gave interviews to Schwartz. Schwartz declined yesterday to say how much they told him. Schwartz said Justice Thurgood Marshall declined to be interviewed.
Schwartz said he also "spoke with" current Chief Justice Warren E. Burger, but Burger's office said he was unavailable yesterday to comment.
Schwartz directly quotes retired justices Potter Stewart, Arthur Goldberg and the late Abe Fortas. Other material comes from the papers of deceased justices. Some of these papers have been previously available to scholars, Schwartz said, and some have not.
Publication of Schwartz' books follows the 1979 release of "The Brethren," by Bob Woodward and Scott Armstrong, which described the early years of the Burger court using previously secret materials.
Schwartz says his research shows Warren as even more of a guiding force in the landmark opinions of his court than some have previously believed. Warren helped steer cases from the moment they were first discussed simply by the way he framed the issues, Schwartz reports.
He was often able to bring coherence to rulings not only by persuading the unconvinced with effective cajolery but by sometimes successfully discouraging his allies from writing concurring statements in major rulings. One such was Miranda v. Arizona, the 1966 opinion guaranteeing defendants the right to remain silent under police interrogation.
Schwartz' research also shows that Justice Brennan played an important behind-the-scenes role in working out compromises in some of the court's most famous rulings, such as Baker v. Carr, which opened the way for the one-man, one-vote principle of legislative representation in 1962 and Griswold v. Connecticut, the 1965 decision that struck down a ban on the use of contraceptives.
Brennan, Schwartz said, also helped tone down what he feared would be excessively conservative rulings even by Warren. Warren based his ruling in Terry v. Ohio, the 1968 decision allowing "stop and frisk" by police, on a draft submitted to him by Brennan as a substitute for Warren's own draft, which Brennan felt was too pro-police.
" 'I've become acutely concerned,' Brennan wrote the chief, 'that the mere fact of our decision in Terry will be taken by the police all over the country as our license to them to carry on--indeed widely expand--present aggressive surveillance techniques which the press tells us are being deliberately employed in Miami, Chicago, Detroit and other ghetto cities,' " Schwartz writes.
Schwartz portrays the court's more formidable personalities as constantly fighting to control the votes of some of its less forceful figures at the same time they heaped ridicule upon them.
The late justice Charles Evans Whittaker, who served from 1957 to 1962, was a special target.
"Charlie never could make up his mind about decisions--until he left the court," Warren reportedly said of Whittaker after his retirement. Frankfurter, as a joke, once sent Whittaker a satire he had written of an obscenity decision only to have Whittaker take it seriously and inform Frankfurter that he would "join" the decision, Schwartz writes.
Schwartz describes the March 4, 1966, conference where the court first discussed the Miranda case (in which the "Miranda warning" that defendants may remain silent was required). "Warren left no doubt where he stood," Schwartz writes. " . . . Warren said that such warnings had been given by his staff when he was district attorney. He placed particular emphasis upon the practice followed by the FBI and explained how it worked . . . . "
Schwartz said Justice John Marshall Harlan "led the presentation the other way. To him, Warren's approach meant an unwarranted extension of the Fifth Amendment . . . . "