The Washington PostDemocracy Dies in Darkness

A crusading chief justice and a cautious president

President Dwight Eisenhower had a tense relationship with Chief Justice Earl Warren, and it only worsened after 1954’s Brown v. Board of Education ruling.
President Dwight Eisenhower had a tense relationship with Chief Justice Earl Warren, and it only worsened after 1954’s Brown v. Board of Education ruling. (Associated Press)

Lily Geismer is a professor of history at Claremont McKenna College and is the author of “Don’t Blame Us: Suburban Liberals and the Transformation of the Democratic Party.”

‘Dumb son of a bitch” and “damn fool.” These insults did not come from President Trump about any of his many political adversaries. Rather, they are the words of President Dwight Eisenhower privately excoriating Chief Justice Earl Warren, whom he himself had appointed to the Supreme Court in 1953. Eisenhower’s antipathy challenges the conventional image of the relationship between these two highly respected moderate Republicans. It serves as a point of departure for James F. Simon’s illuminating and engaging account of their rivalry and a pivotal period in the history of civil rights and civil liberties.

“Eisenhower vs. Warren” is the latest of several books that Simon, a legal historian and former dean of New York Law School, has written documenting enmity between a chief justice and a chief executive. Unlike earlier quarrels, such as Franklin D. Roosevelt’s famous showdown with Charles Evans Hughes over the New Deal, the fight between Eisenhower and Warren has received less attention. Simon exposes a fundamental difference between the relationship of Eisenhower and Warren and that of their New Deal predecessors. In the earlier conflict, Roosevelt sought to push the boundaries of change while Hughes fought for restraint. By contrast, Eisenhower resisted progress while Warren pursued it.

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Eisenhower and Warren were born less than six months apart but had very different paths into the Republican Party and Washington. Tracing their routes to power, Simon underlines how neither had the traditional qualifications or experience for the positions they attained. Eisenhower, a retired general, had worked in public service for most of his life but had never held elected office before entering the White House. Warren was a lawyer and had served as California’s attorney general and governor, but had never been a judge before he put on the robes as chief in the nation’s most powerful courtroom. Simon explores how each embraced his new position and revealed his natural acumen for politics and commitment to moderation and consensus, even as they came to demonstrate it in fundamentally different ways.

Their differing approaches came into sharpest focus surrounding Brown v. Board of Education in 1954. The arguments in the landmark case occurred just two months into Warren’s tenure (before he had even been officially confirmed), after a sharply divided Supreme Court previously failed to decide the case. Simon deftly explains the core legal issues and debates, and reveals how Warren skillfully brought the court to unanimity and wrote the groundbreaking opinion.

Hoping to avoid alienating white Southerners, Eisenhower provided only the barest support for the decision, noting that he was “sworn to uphold the constitutional process in the country. And I will obey.” He offered even less endorsement for arguments on the implementation decree for Brown and the justices’ other efforts at enforcing desegregation. Warren was deeply frustrated with Eisenhower’s unwillingness to speak out more vigorously in support of Brown and its implementation.

Their relationship frayed further as the court took a firm stand in a series of cases protecting the civil liberties of individuals accused of subversion during the Red Scare. In narrating this tension, Simon pays close attention to the internal dynamics of the court, especially Warren’s strained relationship with the mercurial Felix Frankfurter, who was a strong advocate of judicial restraint.

While Simon hints that the friction between Eisenhower and Warren dated back to their fight for the Republican presidential nomination in 1952, he shows that after Brown, their battles intensified. What is perhaps most striking is that, with the exception of a few veiled comments in news conferences and oblique statements in their memoirs, Eisenhower and Warren kept their frustrations with each other private. The tacit agreement to keep their animosity out of the public eye reveals just how different Washington politics was in the 1950s, especially within the Republican Party. It also makes Simon’s task more challenging. His efforts to probe Eisenhower and Warren’s relationship reveal that their differences were often more of approach than ends and represented a debate over immediate vs. incremental change.

Simon shows sympathy for the political pressures Eisenhower confronted as president and his skill at navigating them. He acknowledges that Eisenhower wielded federal power on civil rights issues when he could, noting his role in desegregating the military, easing tensions over school segregation in Little Rock, and advocating for the Civil Rights Acts of 1957 and 1960. Yet in charting the rivalry, Simon makes clear that he favors Warren’s thinking and philosophy. He celebrates the chief justice’s “strong moral sensibility,” which Simon notes in Warren’s push as governor to ensure that California residents received adequate health care and in Warren’s belief that segregation was not just unconstitutional but immoral.

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Simon’s veneration of Warren also creates some noticeable blind spots. While carefully charting Warren’s early career, the author spends very little time on his key role in the internment of Japanese Americans as California’s attorney general and governor. Simon does not suggest, as many other scholars have, that Warren’s regret over his support for internment had an impact on his abiding commitment to expanded individual liberties and his recognition that vulnerable groups needed heightened protection. If one of Simon’s goals is to track Warren’s evolution, then a more in-depth look at internment would have illuminated it, especially since it was an issue that also divided the Supreme Court before he arrived. Internment also provides an important perspective on Warren’s recognition of the different roles played by politicians and justices, having served himself in both capacities. In 1965, he told Eisenhower that while politicians often had to compromise to get results, a justice had to abide by “principle, not expedience.”

Today, many of the individual rights and liberties that Warren defended are under threat by actions of the executive branch. Simon’s book offers a glimmer of hope that the court can and will once again take a stand. For, as Warren’s example makes clear, such a position is not only constitutional but also morally and ethically right, and will allow the justices to join Warren on the right side of history.

By James F. Simon

Liveright. 427 pp. $35