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                                         Chief Justice Earl Warren

     Earl Warren was born on March 19, 1891, to Mathias H. Warren and Chrystal Hernlund Warren. Mathias was an immigrant from Norway and Chrystal Hernlund Warren was a Swedish immigrant. Matt Warren worked as a mechanic and repairman in Bakersfield, California working for the Southern Pacific Railroad. He was frugal with money, believed in stern values and counseled his son, “Never let yourself be caught broke. Saving is a habit …and once established will last you a lifetime.”(Cray, pg.16)

   The Warrens steadfastly pursued the American dream. Hard work, thrift and moral rectitude led to a life of financial security. When the children broke the rules or erred, punishment was swift. “My father wasn’t exactly a failure at handling the birch rod” Earl Warren would later say. (Cray, pg. 16)

    Earl Warren was brought up with old fashioned values and the Warrens were old fashioned people.

    Matt Warren moved to California lured by railroad company advertisements about the healthful climate in Southern California. Taking a job with the railroad Matt Warren joined with the workers who downed tools in the Pullman Strike led by American Union representative Eugene V. Debs.

   In response, the railroads blacklisted strikers; Mobs lynched men in effigy across the street at the nearby Ann Street School. Having seen it the fear of the mob stayed with Warren the rest of his life.

   Matt Warren having been blacklisted in 1894 moved the family from Los Angeles to Bakersfield in Kern County where he found work in a railroad repair yard. With the growth of Bakersfield and nearby Kern City, Matt and Chrystal Warren guided their children in the path of righteousness. Ethyl and Earl were well mannered.

   Earl entered public school in Bakersfield, because he could already read and write he was promoted from the first to the third grades. “Earl was an average student, a very docile fellow who attended strictly to business” his principal Leo G. Pauly would say.(Cray, pg. 20). He was industrious and worked a number of part time jobs carefully putting aside money for his college education.

    In high school Earl went out for sports though his father disapproved. “Father thought you went to school to learn”. (Cray, pg.21) Because he skipped grades he thought himself shortchanged in athletics since he was always smaller than the other kids. But a love of sports stayed with him for the rest of his life. During one Supreme Court session the court clerk handed little scraps of paper to the Justices who passed them around. They had been keeping score of the World Series game where Don Larson pitched a perfect game.

    Earl took a job as a call boy in junior high, for the Southern pacific and got a chance to see the bawdier side of the city where he encountered saloons, drinking, illegal gambling and single men. It was a jarring lesson about the corruption when a gigantic corporation governed one town.” I witnessed crimes and vice of all kinds countenanced by corrupt government.” Warren would later say. (Cray, pg. 24)

     Earl Warren would go on to graduate Kern County High School in June 1908 and boarded a train for Berkley and the campus of the University of California. In the class yearbook he would jokingly write, “I will to Lorraine K Stoner my ability to slide through, doing as little work as possible.”(Cray, pg. 23).

     His father wanted him to study mining at Berkeley, but Earl had a different dream. He knew he wanted to be a lawyer. Once at Berkeley he strove to “put virtue, honor and loyalty above all else.” The university football coach taught him that “It is better to lose than win at the sacrifice of an ideal.”

   Berkeley in this second decade of the century burned with the fires of Progressive reform. He became a progressive in 1912 supporting reform minded Robert La Follette and Hiram Johnson. At the end of his third year Warren entered the Department of Jurisprudence in the newly opened Boalt Hall.

   His grades at Boalt Hall were acceptable, but not exceptional. He was “undistinguished in all ways” but graduated from Berkley law school with a reputation that he would never set the world on fire.

   When World War one broke out Warren enlisted for service in the U.S. Army. 1st Lieutenant Warren was discharged in 1918 without ever seeing combat action. He served as clerk for the California State Assembly and then was appointed District Attorney for Alameda County.

   California politics were full of graft that Warren knew only too well. With his progressive roots after graduation he rose up through the ranks through hard work and his outgoing personality and strong ethics. As Alameda County District Attorney he promised to fight corruption and clean up graft. He was a prosecutor in a number of cases involving unions and became strongly anticommunist and politically he moved to the right to become a conservative Republican, making important friends the whole way.

      Warren was elected to three four year terms as Alameda County DA. Warren cracked down on corruption and prohibition era bootlegging. Interestingly many of the techniques he would use as a prosecutor he would later strike down as a Chief Justice. Nevertheless, Warren had as a prosecutor an Elliot Ness type reputation that would guide his ideals throughout the years. Certainly the Progressive Republican in him never died. The police could not violate the law in order to enforce it. He carried this experience in law enforcement and their techniques with him to Supreme Court.

     Warren married Swedish born Nina Elizabeth Palmquist Meyers on October 4, 1925. She was widowed and when he married her he adopted her son. Together they had six children. Warren supported the American Legion, the Elks and the Free Masons. Together their ideals bound together an idealistic philosophy of Progressivism, Republicanism and Masonry.

     In 1938 due to cross filing Warren won all the primaries for all parties for Attorney General. Once elected he continued in his anti-corruption effort statewide. He cracked down on gambling ships off the Coast of Southern California.

As an attorney General Warren was a strong supporter of Japanese internment during World War II. Internment meant the compulsory removal of people of Japanese descent from “exclusion zones” and away from the war zone along the coast. In 1942 he warned that the Japanese situation might have been the Achilles heel of the war effort. In his memoirs he expressed regret of removing people based on racial descent as not being in keeping with, “our American concept of freedom and the rights of citizens”.

  • The Memoirs of Earl Warren (1977) (Quoted in Wikipedia article).

Governor of California

      Running as a Republican, Warren again due to California’s system of cross filing was nominated for Governor and elected Governor of California on both Republican and Democratic tickets. He was reelected to three terms.

   As Governor Warren modernized the office of Governor. During World War II he supported his party and opposed the New Deal. After, he pursued postwar economic planning. Governor Warren had served on both the state and national Republican Committees at the same time and was well liked as an up and comer within the California Republican Party. He was picked to run with Thomas E. Dewey for the Vice President, but the ticket lost in a stunning defeat to incumbent President Harry Truman 

  Appointment to the Supreme Court

      In 1952 Warren was a favorite son candidate to get the nomination from California for the Republican nomination. He hoped to broker the convention, but opposed by Richard Nixon, the nomination went to the incumbent ticket of Eisenhower-Nixon. Eisenhower nominated Earl Warren to the Supreme Court when Chief Justice Fred M. Vinson died suddenly in September 1953.

Warren Court Decisions:

     On the passing of then Chief Justice Fred Vinson, in 1953 Earl Warren was sworn in as the fourteenth Chief Justice of the Supreme Court by the senior Associate Justice, Justice Black. The 1953 Court consisted of Justice Black, Justice William O. Douglas, Justice Robert H. Jackson, Justice Stanley Reed, and Justice Felix Frankfurter and three appointees by President Truman, Justices Tom Clark, Harold H. Burton, and Justice Sherman H. Minton. Appointed by President Eisenhower, Warren it was hoped by conservatives would be a tough law and order Chief Justice as his prosecutorial record in Alameda County and as Attorney General and Governor of California indicated he would be. But, Earl Warren had the uncanny ability to mix his law with his politics and moral values, and to defy all expectations.

     President Eisenhower defended nominating a former Governor to be Chief Justice in a letter to his brother Minton, “I believe what we need statesmanship on the Supreme Court. Statesmanship is developed in the hard knocks of general experience, private and public…He has a national name for integrity, uprightness, and courage that, again, I believe we need on the Court,” (Cray, pg. 262).

     The Court was, at the time, equally divided into a liberal or activist oriented wing, and a conservative wing of precedent minded justices. The liberal wing was represented by Justices Black and Douglas. The conservative wing by Justice Jackson and Justice Felix Frankfurter.

     Justice Frankfurter had become the Court’s leading proponent of judicial restraint, or that the Court should defer to Congress as long as its enactments could be squared with the Constitution. Philosophically this put him at odds with Justice Black, who was more than willing to look beyond the face of legislation to try to discover what might be deemed to have been “its unintended consequences.”

    The four other members of the 1953 Warren Court Burton and Sherman were members of the conservative wing while Reed was a careful draftsman in his opinions but not a man of great daring and Justice Clark, of the University of Texas Law school, was deemed “insensitive to personal liberties” by liberals (Cray, pg. 267).

     More than 125 cases were on the Court’s calendar that year, and there was a particularly big file to be read, the appeal of the Reverend Oliver Brown, a father unhappy with his daughter’s education at an all-black school in Topeka, Kansas. It was with this divided ideological make up that the Court was to take up the continued value of the “Separate but Equal” doctrine laid down in Plessy v. Ferguson.

Brown v Board of Education: 347 U.S. 483(1954)

    The NAACP had been fighting and chipping away at the Plessy decision and segregation since 1909. After winning victories on smaller issues NAACP lawyer and future Supreme Court Justice Thurgood Marshall decided to make a direct assault on Plessy and segregation. The Brown case first came before the Supreme Court in the 1952 term when Chief Justice Fred M. Vinson was in charge of guiding the Court. The case was actually a collection of five different cases from four different states, Kansas, South Carolina, Virginia and Delaware, and the District of Columbia. The court heard them all together under the name of Brown since they all dealt with the same issue of racially segregated schools. The case for the District of Columbia was eventually separated out and struck down instead on Fifth Amendment Due Process grounds since it was under federal authority.

    After the initial argument Justice Frankfurter made the crucial strategic suggestion of postponing the decision until the next term by requesting reargument. In the intervening period before reargument Chief Justice Fred M. Vinson died of a heart attack Justice Frankfurter commented privately to his law clerks that this was, “the first indication I have ever had that there is a God.” To avoid suspicion that the Court was stalling Justice Frankfurter framed five new questions for the attorney’s to address at a new round of arguments.

         “The questions asked what evidence there was that the Fourteenth Amendment was intended to cover school desegregation; whether Congress might abolish school segregation on its initiative; what was the Court’s power to do likewise; whether the remedy if ordered, should be gradually imposed or delayed; and, finally what form of decree might take if the Court elected the gradual approach” (Cray, pg. 278).

   The Court as it was divided into separate wings was struggling with the legal doctrine it should adopt for its decision if it overturned Plessy.  In that decision the Court had ruled “equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate.” Plessy v. Ferguson, 163 U.S. 537. At that time it looked like a 6-3 divided Court in favor of overturning Plessy. 

   Arguing on behalf of the segregation status quo, was one of America’s foremost constitutional experts, trial attorney John W. Davis, who had argued 142 cases before the Supreme Court, far more than any other attorney in his day, and won the famous case Youngstown Sheet and Tube v. Sawyer, the steel mill seizure case on the side of the steel mill owners. John. W. Davis had been a Democratic nominee for President in 1924 and this would be the 80 year old attorney’s last appearance before the Court.

       The brief on the side of the overturning of the Separate but Equal doctrine made the contention that the framers of fourteenth Amendment intended to ban segregation as a “last vestige of slavery” a contention elaborately disputed by most historians.

     John W. Davis’s contention for the segregated school systems rested on tradition and practices that had been in practice for three quarters of a century and that a tradition and societal system could not be struck down as it existed in the segregationist states based on psychological or sociological studies. Segregation was a way of life in many states; supported by a majority of whites in these States and which had been duly enacted by the people’s representatives.  To strike down the school system and societal system under which they lived would do great harm, cause disorder and was judicial activism. Such change should only come by evolving societal attitudes and accomplished by legislative processes.

      Thurgood Marshall’s forces supplemented by friendly attorneys and an amicus brief by President Truman’s  Attorney General and later by the time of reargument President Eisenhower’s, contended that segregation stamped the minority students with a “ badge of inferiority” which was harmful not only to the black children  but also to the white students. Segregation causes irreparable harm to the development of a healthy and heterogeneous community. 

    Marshall contended that Black and white children, “ in Virginia and South Carolina-and I have seen them do it-they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together. They have to be separated in school….If they go to elementary and high school (together), the world will fall apart.” (Cray, pg.280)

     Davis argued for the legal custom of  honoring precedent, and custom contending eloquently that, “ Sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued that it passes the limits of judicial discretion and disturbance”.(Cray, pg. 280)

The Decision: On May 17, 1954 the Supreme Court at 12:52 P.M. Chief Justice Warren read the opinion of the Court,

        “We come then to the question presented” Warren read, “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities?”

 With only a slight pause

           “We unanimously believe that it does.” (Id. at 493).

In the opinion the Chief Justice stated that, “In approaching this problem we cannot turn back the clock to 1868 when the Fourteenth Amendment was adopted, or even back to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the nation.”(Id. at 493). At best the historical analysis of the intentions of the Framers of the Fourteenth Amendment on public education and segregation were inconclusive. The Court instead had to look at the effect of segregation on public education.

     “Education is the very foundation of good citizenship” and the perhaps the most important function of state and local governments…It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. (Id at. 493).

   The Chief Justice built the argument for striking down Plessy in public education.       

         “Segregation of white and colored children in public schools has a detrimental impact upon the colored children. The impact is greater when it has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of the child to learn….” (Id. at 494).

     To separate children in grade and high schools, “from others of similar age and qualifications simply because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”(Id. at 494).

He now announced the Court’s decision:

           “We conclude in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.”(Id. at 495)

      The plaintiffs by reason of the segregation complained of had been denied the Equal Protection of the Laws guaranteed by the Fourteenth Amendment.

     The origin of the argument that segregation was psychologically harmful to the black children was to be found in the controversial footnote no. 11. What the opinion stated as “ample evidence” were studies by 30 social scientists basing their Views on Gunnar Myrdal’s “An American Dilemma” that segregation was harmful to the “psyche’ of both the black and white children. The Court used this as evidence that segregation was harmful to the minority children. The footnote caused considerable debate as to whether psychological or sociological studies could be the basis of striking down legislation passed by legislatures elected by the people. Is psychology part of the Constitution? Might another study currently suggest that integrated schools have failed and caused harm to the education or psychological wellbeing of the non-minority children?

Brown II

    The Brown decision had yet to be implemented. The Court invited all interested parties to participate in oral argument on implementation. Argument was scheduled for April 1955. Nearly one year later Brown II was handed down. It mandated that federal courts oversee the implementation to desegregated schools “with all deliberate speed”. The ruling recognized the limitations of judicial implementation given the opposition that still remained in segregated school districts. (Abraham, Perry pg. 344-346).

Cooper v Aaron:

    In opposition to the ruling in Brown, Arkansas Governor Orval Faubus had called up the Arkansas Air National Guard on September 2, 1957 to bar the entrance of nine black students to Little Rock Arkansas Central High School. Faubus had tried to resuscitate the antebellum doctrines of “interposition” and “nullification”.  The State of Arkansas under Faubus would thus stand between the people of the State of Arkansas resisting the federal desegregation ruling and the Federal government. Federal District Court judge Ronald Norwood Davies had affirmed the ruling that Central High School must admit its first black students. Faubus refused to remove the National Guard. When the black students arrived a Guardsmen ordered the children to move away.

    President Eisenhower eager to avoid a crisis could wait to act no longer. Attorney General Herbert Brownell cautioned that Faubus was in effect challenging President Eisenhower’s oath to support and defend the Constitution. The President sent a telegram to Faubus that he would uphold the Constitution with “every means at his command”. (Cray, 343).    

   The Governor appealed to meet with the President and discuss the issue of desegregation of the Arkansas school. The President agreed. On Sunday, September 15, at the President’s summer retreat in Newport Rhode Island the two met. Eisenhower warned the Arkansas Governor not to test his resolve. The decision of federal Courts must be obeyed.

     On Friday September 20, Judge Davies enjoined Faubus from interfering with the school integration plan. The following Monday eight black children again attempted to enter Central High school. Faubus had removed the National Guard. Angry crowds chanted, “Two, four, six, eight, we ain’t going to integrate.”(Cray, pg. 344). When the angry crowds swept through the hallways, alarmed school authorities decided to withdraw the black students.

    President Eisenhower left with no other choice, ordered divisions of the United States Army to Little Rock.  The President abhorred the idea of using the Army, but he had never imagined that a Governor of a State would defy the law, and his oath. For the first time since Reconstruction federal troops had been dispatched to maintain order in the South. The nine black students were allowed to enter Central High School.

    The Little Rock school board asked the federal courts for permission to delay desegregation orders until tempers had cooled. The school boards strategy was to delay integration for as long as possible. Attorneys for the board argued that public resistance made compliance with the decision in Brown impossible. They asked the Courts to delay desegregation for two years. Federal District Court Judge Harry Lemley on June 20, 1958 gave the school two years to implement the desegregation plan. The NAACP filed an immediate appeal.

    The question to be decided was whether rulings by the federal courts could be disregarded, or be forced to be withdrawn, by a determined resistance by individual citizens, and whether a State Governor could “nullify” the rulings of the federal courts. The Circuit Court of Appeals agreed with the NAACP and its chief counsel Thurgood Marshall and reversed the District Court’s ruling. The school board appealed to the Supreme Court.

    The Supreme Court arranged a special session, only the third in its history, to decide whether to take the school boards appeal. In Arkansas the Legislature rallied behind Faubus and immediately passed several laws to defend his position and bar integration or remove funding from public schools and divert it to all white private academies.

    School Board attorney’s had brought the suit on behalf of the president of the Little Rock School board, William Cooper. The respondents were the black parents who had sued the school board to force the schools reopening, led in alphabetical order by John Aaron. They were represented by NAACP attorney of Brown v. Board fame Thurgood Marshall.

     Nevertheless, people knew at heart the real litigants in the Supreme Court in the August 28, 1958 case were the President of the United States and the Governor of Arkansas. Cooper v. Aaron was a test of the Supremacy of the Constitution, the authority of the federal courts to implement their decisions against public opposition at the local level, and the meaning of federalism in the twentieth century.

   Richard C. Butler represented the School Board of Little Rock. A telling exchange occurred between the Southern attorney and Chief Justice Warren during Butler’s oral argument. Citing the “all deliberate speed” phrase from Brown II the attorney argued that more time was needed to change the local cultural attitudes in Arkansas and much of the South. Butler urged that Judge Lemley’s two year stay plan be approved. Warren asked if the school board was ready to desegregate if the stay were not granted.

          “No sir, it has not decided,” Butler responded, “because it is almost compelled to see what statutes are passed by the general assembly now in session…”

           “Well, as to the specific children, have they been assigned to any school?” Warren asked.

            “Yes, sir; they have now been assigned,” Butler replied, “to an all negro school, the new high school there Horace Mann.”

            “Well isn’t that action toward segregating them again?” Warren asked.

    It was clear at this point that Little Rock attempted to defy the Brown decision. In defending the people of his state, Butler argued that the people in the South were good people who wanted to obey the law, but,

          “If the Governor of any State says that a United States Supreme Court decision is not the law of the land, the people of that state, until it is really resolved, have a doubt in their mind, and a right to have a doubt.”

     The Chief Justice’s words were filled with a barely restrained sense of outrage,

           “I have never heard such an argument made in a court of justice before, and I have tried many a case over many a year. I never heard any lawyer say that a statement of a governor as to what is legal should control the action of any court.”

       Immediately after the final arguments the members of the Supreme Court met in conference. They were unanimous. Under the Constitution there was one rule of law, the Constitution pursuant to article VI was the Supreme law of the land and the Supreme Court the body that interpreted it. Governors no less than judges must obey it.

     “We knew the kind of opinion we wanted” William m Brennan told Legal historian James F. Simmon, “I remember Justice Harlan saying this was the biggest crisis in Court history, since we were told that Governors and other courts were not bound but our decision. (Cray, pg. 347).

     The Chief Justice assigned the brief to the Courts best legal scholar Justice Frankfurter, the old Harvard Law professor, and Justice Harlan. Justice Brennan from the liberal block wrote the Court’s full opinion, giving the Court’s reasoning. Each member of the Court signed the opinion. It was unprecedented, but showed the Court was still united after Justices Harlan, Whittaker and Brennan had joined the Court in the period after the Brown decision.

           “…This Court decided that enforced racial segregation in the public schools of a State is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment….The District Courts were directed to take such action as was necessary to bring about the end of racial segregation  in the public schools with all deliberate speed.” Cooper v. Aaron 358 U.S. 1

           “The Governor of Arkansas (who) dispatched units of the Arkansas National Guard…and placed the school off limits to colored students.” ( Id. at 9). He did so under the theory that there was some power belonging to him or the State that could, “nullify the federal law and permit disobedience to the decree of the District Court” (Id. at 11). The Governor’s action caused the school board to request postponement of the desegregation order “until the legal dilemma was resolved” (Id at 11).

           “(This case) necessarily involves a claim by a governor and Legislature of a State that there is no duty on State officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution.”(Id. at 16).

In answer to the premise of the actions of the Governor and Legislature that they were not bound by the ruling in Brown the Court cited the case of Marbury v. Madison, 1 Cranch 137, 177

         “Article VI of the Constitution makes the Constitution the supreme Law of the Land. It is emphatically the duty and province of the judicial department to say what the law is.” …The federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our Constitutional system.…”(Id. at 18).

          “No state or executive or judicial official can war against the Constitution without violating  his oath undertaking to support it.” (Id. at 18)

            “The Constitutional rights of the respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and legislature…Law and order is not here to be preserved by depriving the Negro children of their constitutional rights.” (Id. at 16)         

    The Court thus ended a tense standoff with the old guard of States’ rights proponents decidedly on the side of the Constitutional imperative to obey its rulings.

Baker v. Carr

     The disparities were stark in Memphis, Tennessee as they were in many states across the country, including Warren’s own state of California. According to the 1950 Census the city had 312,000 voters and only seven representatives in the legislature. The twenty four surrounding counties had a roughly identical population and twenty six representatives. The state legislature had not reapportioned since 1901. Rural interests for all intents and purposes, controlled Tennessee. The State was governed by “the hot dog lot and the cow pasture.”(Cray, 379).

     Seeking to end malapportionment and “gerrymandering”, Charles W. Baker and nine other residents of Tennessee’s underrepresented cities brought suit in 1959 against Secretary of State Joe C. Carr. Their case was to profoundly affect the course of American politics.

    Baker v. Carr, 369 U.S.186 (1962) was one of the most influential cases that the Warren Court would decide, arguably even far more reaching than the Court’s decision in Brown v. Board. Legal historians would rank the case as one of the most important cases decided by the court. Earl Warren himself would later state he believed it was, “the most important decision” of his tenure on the Court. He remembered the corrupt politics he witnessed as a prosecutor and then Governor in California.

   On the facts the case was easy to decide, the problem was overcoming the conservative bloc’s reluctance to meddle in a “political thicket”. Such questions were better left to the legislative branches in the judicial philosophy of the conservative wing of the court led by Justice Frankfurter whose philosophy of judicial restraint and scholarly expertise in defense of the Court’s limited jurisdiction was exemplified in his opinion in Colegrove v. Green in 1946. In Colegrove the Court had refused to halt an election in Illinois’s congressional districts where the population disparities ran as high as nine to one. He had argued that the court did not have competence to grant what petitioner’s asked because the judiciary should not enter into the politics of the people by determining the qualifications of the members of Congress.

    Chief Justice Warren had come to realize that redistricting was often on the basis of racial gerrymandering. The Court’s previous opinions had held that gerrymandering could only be struck down if it could be shown as due to race, but in all other cases the Court did not have jurisdiction. The issue to be resolved being disenfranchisement due to race in violation of the fifteenth amendment. The Chief Justice saw it as a matter of Equal Protection of the Laws guaranteed by the Fourteenth Amendment.

       In conference and in the face of Frankfurters scholarly jurisprudence on jurisdiction of political questions warren decided, “I don’t think we have to decide the merits…..All we have to do is to resolve the question that the federal courts have jurisdiction, “and leave the rest of the case and the form of the decree to the district court.”(Cray, 382).

     Thus in  March 1962 the Court finally found sufficient votes to declare the age old practice of deliberate malapportionment of representative legislative districts in the several districts to be a controversy it had the “power, right and duty to adjudicate”.( Abraham, Perry pg.20).

          “The complaint alleges that the 1901 statute, even at the time of its passage…arbitrarily and capriciously apportioned representatives in the Senate and House without reference…to any logical or reasonable formula whatever” Baker v Carr, 369 U.S. 186(1962).

          “These plaintiffs are…denied the equal protection of the laws accorded to them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes.” (Id at 193).

           “ The District Court was uncertain whether our cases withholding federal judicial relief rested upon lack of federal jurisdiction…what we have designated “ nonjuticiability….We hold that that the District Court has jurisdiction of the subject matter of the federal constitutional claim in the complaint.” ( Id. at 204).

Turning to the question of standing the Court ruled, “The complaint was filed by residents of Davidson, Hamilton, Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to vote for Members of the General Assembly…We hold that these appellants do have standing to maintain this suit.” (Id. at 206).

    The District Court relied on the opinion in Colegrove v. Green in holding that the matter was an unjusticiable political question. The Chief Justice removing the “Frankfurter objection” ruled, “We hold that this challenge to an apportionment presents no nonjusticiable “political question.” (Id. at 209).

And finally to the dramatic conclusion,

        “We conclude that the complaint’s allegations of denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment.”( Id. at 237).   

    Justice Frankfurter wrote an “impassioned” 68 page dissenting opinion where he cautioned if it entered into the “ political thicket” it would find itself immersed in a “ mathematical quagmire”.(Abraham, Perry, pg.20).

    In 1964 the Court extended its Baker v. Carr ruling in the case of Reynolds v. Simms by announcing that representation in both houses of state legislatures must be apportioned to reflect “approximate equality”. Chief Justice Warren wrote for a majority of six, “Legislatures represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”(Reynolds v. Simms, 377 U.S. 533).

School Prayer Cases:

     In Engel v. Vitale, known as the New York Prayer Case the court made clear its notion of separation of church and State. New York State Board of Regents recommended and several school boards required and adopted that at beginning of each school day the prayer, “Almighty God, we acknowledge our dependence upon thee, and we beg Thy Blessings upon us, our parents, our teachers, and our country.”

    Five parents of ten school children attending the school involved brought suit on the ground that the use of the official state composed prayer in the public schools violated both separation of church and state and freedom of religion.

Justice Black wrote for a 6-1 majority in Engel that the state composed prayer violated the First and Fourteenth Amendments.

         “By using its public school system to encourage recitation of the Regents prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can be, of course, no doubt that New York’s program of daily classroom invocation of God’s blessing as prescribed in the Regents prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessing of the Almighty….The Constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” Engel v. Vitale, 370 U.S. 421(1962) (Abraham and Perry, pg.271).

In the next year after deciding Engel and the subsequent public reaction and uproar against the decision the Court had the chance to reconsider its decision in the case Abington Township v. Schempp.

    Pennsylvania passed a law requiring at least ten verses of the King James version of the holy bible be read at the opening of each day without comment in public schools. The Schemmps were Unitarians who believed the bible should not be read without interpretation. They challenged the law under the Establishment Clause.

In an 8-1 opinion by Justice Clark the Court ruled that the Pennsylvania law violated the Establishment Clause and the rights of the Schempps. The state is firmly committed to a position of neutrality on religion the court concluded. Justice Clarks reasoning maintained,

        “ The place of religion in our society is an exalted one….We have come to recognize through bitter experience that it is not within the power of government to invade that citadel…In the relationship between man and religion, the state is firmly committed to a position of neutrality.” Abington Township v. Schempp 374, U.S. 203

    Thus to meet the test in Schempp the government must be neutral or have a valid secular purpose, must not advance or inhibit religion or aid or support one religion invidiously over another.

The Right to Counsel:

     With the changing membership of the Court since 1954, the Court by 1962 now had an activist liberal majority made up of Justices Goldberg, Warren, Black, Douglas, and Brennan. It is with this make up that the Court took on the case of Clarence Earl Gideon.

    Gideon had penciled an in forma pauperis, or as an indigent, Habeas corpus petition in neat printed letters on the lined paper provided to him by the Florida’s State Prisons.

     Gideon had been found guilty on August 4, 1961, of breaking and entering a Panama City poolroom and with “intent to commit a misdemeanor. He had broken into a cigarette machine for change, and then snatched up a bottle of cheap wine and a six pack of beer.”(Cray, pg. 403).

    Denied the right to have counsel appointed for him Gideon was tried and convicted and sentenced to five years in the Raiford State Prison System. He appealed to the Florida Supreme Court on the grounds that the “United States Constitution says I am entitled to be represented by counsel”. His appeal was summarily rejected. In his handwritten petition to the Supreme Court of the United States, Gideon argued “The question is very simple. I requested the court appoint me an attorney and the Court refused.” Florida only appointed counsel in capital cases following the Powell v. Alabama precedent in the Scottsboro cases, otherwise they held to the precedent set in Betts v. Brady.  The Sixth Amendment right to counsel had yet to be incorporated into the Due Process Clause of the Fourteenth Amendment and as such only applied against the federal government.

      The Court’s decisions looked at factors such as the education, literacy, intelligence, mental health, the youth, or the conduct of the judge or prosecutor to see if special circumstances existed. Under Betts and the precedents that followed there was not a “hard fast rule” but a determination of whether fundamental fairness had been violated.

    It was no surprise to students of the Court that the Betts decision was overturned unanimously by the Court members. His brief had been briefed and argued by the Court appointed crack Washington attorney and future Associate Justice Abe Fortas.

Gideon v. Wainwright, 372, U.S. 335(1963)

The Court’s opinion dealt with the precedent laid down in 1942 in Betts v. Brady, 316 U.S. 455.

     “The problem of a defendant’s federal constitutional right to counsel in a state court has been a continuing source of controversy.” (Id. at 338)

The legal question was, “Should this Court’s holding in Betts v. Brady be reconsidered?”  In the opinion of the Court the facts of Gideon’s case to Betts were remarkably similar.

The Court announced its holding,

     “We conclude that Betts v. Brady should be overruled” (Id. at 339).

       The Court ruled that the Sixth Amendment’s right to appointment of counsel for an indigent defendant in a criminal proceeding was within the scope of the Fourteenth Amendment’s Due process Clause and incorporated through it against infringement by the States. Justice Black’s opinion followed the contours of Abe Fortas’s oral argument that, “ in a civilized society and in our adversary system of criminal justice how can one who is too poor to hire an attorney be assured a fair trial unless counsel is provided for him?”

The right was held to be “fundamental and essential to a fair trial”.

        “The noble ideal (of equality before the law) cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” Gideon v. Wainwright (Id. at 344).

     In effect Gideon nationalized and incorporated the right to counsel in all criminal proceedings save certain misdemeanor cases. (Abraham, Perry pg.65).

 Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241(1964)

     Early in 1964 President Lyndon Johnson secured passage of the Civil Rights act of 1964 banning racial segregation in public accommodations. It was the situation in the South that one might have travel for hours or sleep in their car because accommodations could not be found that would cater to colored minorities moving in interstate commerce. Heart of Atlanta Motel was situated conveniently on an interstate highway with billboards along the interstate highway to snare tired travelers. The Motel was perfect for testing the public accommodations act.

     Heart of Atlanta quickly challenged the Public accommodations section of the Civil Rights Act of 1964.  They were an all-white business and the Motel intended to continue its all-white rental policy.

      In an expedited test case the motel challenged Title II of the Civil Rights Act, which relied on the power granted Congress to “regulate commerce….among the several States” and the Equal Protection Clause of the Fourteenth Amendment..

     Counsel for the motel was Moreton Rolleston, Jr. He relied on what he called his “five theories of law” and his “white horse case”, the Civil Rights Cases from 1883.  The basic contention was that the Constitution does not apply to private discrimination and the Constitution only protects people against discrimination by the government. The Fifth Amendment’s due process clause protected the right of individuals and individual businesses.  Rolleston argued of course Congress had the right to regulate commerce, but this case was not about commerce but about individual freedom and where else can a person go to defend individual liberty, as a last resort, but to the Supreme Court of the United States? Defending the United State’s position was Solicitor General Archibald Cox.

    Down came the ruling, assigned by the Chief Justice to Justice Clark,

           “The sole question posed is therefore, the constitutionality of the Civil Rights Act of 1964 as applied to these facts….The applicability of Title II is carefully limited to enterprises having a direct and substantial relation to the interstate flow of goods and people…”Heart of Atlanta Motel Inc. v United States 379 U.S. 241( Kutler, pg. 574).

         “How obstructions in commerce may be removed-what means are to be employed-is within the sound and exclusive discretion of the Congress….The means chosen must be reasonably adapted to the end permitted by the Constitution.” (Id. at pg. 577).

           “….The Act as applied here to a motel which concededly serves interstate travelers is within the power granted to it by the Constitution, as interpreted by this Court for 140 years.”(Id. at pg. 577).

    Heart of Atlanta established the proscription against racial segregation in public accommodations, even if done by a private business, by the federal government, when it had a substantial impact on interstate commerce.

The Anti- Miscegenation Law

      After a long courtship, Richard Loving and Mildred Jeter were married on June 2, 1958 in Washington D.C. Five years after returning to their home in rural Virginia they were arrested for violating Virginia’s anti-miscegenation statute. Loving was white and his wife of mixed ancestry part American Indian and part black. The Lovings pleaded guilty, but were spared jail time on condition that they leave Virginia for twenty five years.

     The Lovings moved to the District of Columbia but they missed their home and were unhappy in the city. Secretly they returned to their home in Caroline County in Virginia where they were sheltered by friends and relatives and where they raised their three children. They appealed their conviction with help of America Civil Liberties Union attorneys through the state courts unsuccessfully, and then appealed to the Supreme Court.

     The opinion of the Supreme Court, with the Chief Justice assigning the opinion to himself, was read from the bench by the Chief Justice on June 12 1967,  

          “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness of free men.

             Marriage is one of the “basic civil rights of man” fundamental to our very existence and survival     …Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.” Loving v. Virginia 388 U.S. 1 (1967)

     With the Loving decision the anti-miscegenation laws were out and the circle had been completed. Segregation based on race arising from law was unconstitutional.

Criminal Procedure Cases

             “The abhorrence of society to the use of involuntary confessions does not turn alone on their untrustworthiness. It also turns on the deep rooted feeling that while enforcing the law; that, in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”

Chief Justice Warren in Spano v. New York, 360 U.S.315 (1959)

Escobedo v Illinois, 4 Ohio Misc. 197(1964)

     Earl Warren continued to ponder the issue of confessions. The Court looked for a case appropriate for setting down a rule. In 1961 he began to slip into a file the occasional newspaper clippings on police interrogation practices. Five years later the case of Danny Escobedo gave Warren the opportunity.

    The police had arrested twenty two year old Escobedo in the shooting death of his brother in law. Escobedo had been interrogated by the police for fourteen hours before being sprung by his family on a writ of habeas corpus.

    Police rearrested Escobedo eleven days later and interrogated him again for three and a half hours. Escobedo asked repeatedly to speak with his attorney. His attorney waited outside the interrogation room unable to speak to his client. Handcuffed in standing position and deprived of sleep Escobedo eventually confessed. He admitted to paying the sum of 500$ to kill his brother-in law who was beating his wife, Escobedo’s sister.

    Escobedo was convicted under Illinois law for murder and sentenced to a twenty year prison term. Four years later Escobedo’s appeal made it to the Supreme Court. Justice wrote the opinion for the Supreme Court reversing Escobedo’s conviction on the grounds that his interrogation violated his Fifth and Sixth Amendment rights not be compelled to be a witness against himself and his right to counsel.

           “ The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with  his lawyer during the course of an interrogation constitutes a denial of “ the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as “ made obligatory upon the States by the Fourteenth.”  Escobedo v. Illinois, 378 U.S. 478(1964).

          “The police had the defendant handcuffed behind his back and…had said, “(we) might as well admit to this crime” (Id at 479). The petitioner replied, “I am sorry but I would like to have advice from my lawyer…Notwithstanding petitioner and his retained lawyer were afforded no opportunity to consult during the course of the entire interrogation.” (Id. at 482).

    Escobedo was, “nervous, he had circles under his eyes and he was upset” and was “agitated” because “he had not slept well in over a week.” (Id. at 482). Escobedo was offered an inducement by the police if he pinned it on Digerlando (the paid assassin) that he could go home that night and would not be charged, but only be a witness. When confronted with his accomplice who had supposedly pinned the shooting on Escobedo he blurted out, “I did not shoot Manuel you did” (Id. at 483).

    Escobedo was not advised of his rights and it was uncontested that no one during the course of the interrogation advised him of his rights. He was convicted of murder and appealed his conviction. In the Court’s decision,

          “We granted certiorari to consider whether the petitioner’s statement was constitutionally admissible at his trial. We conclude….that it was not, and accordingly, we reverse the judgment of the conviction.” ( Id. at 484).   

        To students of the Warren Court it might seem that the kind of inducements and trickery employed to get the confession from poor bewildered Escobedo offended a sense of justice and fair play. It is no wonder that the former prosecutor, now Chief Justice, whose guiding principle was fairness should look for a case to codify his notion of fair play involving police interrogations. Thus the seeds of the coming decision in Miranda had been sown.

     In regard to interrogations the Escobedo decision left unanswered questions about interrogation procedures. How broadly should the decision be construed? The Escobedo decision only held that police had interrogated Escobedo after he asked to speak with his attorney in violation of his rights, that he was wrongfully refused the right to speak to him, and that he was not advised of his constitutional right to remain silent.

      In practice the decision only applied to those who were the targets of an investigation, who were interrogated and who already had an attorney, but were refused the right to speak with one after having made a request.

    Confession cases crowded the Court’s docket. The Courts realized it had to set clearer rules for interrogation cases and for standards for confessions. By November 1965 they had identified 170 possible cases that raised possible questions based on the previous year’s Escobedo ruling. Out of the 170 case files the Courts clerks had identified twenty that looked promising. The Court granted four as being cert worthy. The lead case was a case from Phoenix Arizona, an appeal by twenty three year old Ernesto A. Miranda.

Miranda v. Arizona

     Miranda had stolen a 1953 Packard from a woman who had been kidnaped and raped eleven days earlier and parked it in front of his home. Officers Cooley and Young had arrested Miranda because he fit the description of the assailant.

   Initially Miranda protested his innocence but after two hours of police interrogation a confession was produced. At no time was Miranda advised of his right to remain silent or of his right to an attorney.

     Miranda had limited intelligence and was deemed by psychiatrists to be deficient in mental health. There had been no overt coercion in police room number 2 his attorney admitted in oral argument. But Miranda had been called upon to “surrender a right he did not fully realize or appreciate that he had” (Cray, 458).

   Joe Flynn argued that the constitution only protected the “rich, educated and the strong”. Those rich enough to hire counsel, those educated enough to know what their rights are, and those strong enough to assert those rights.”    The public prosecutor for Arizona argued that an attorney before the trial stage would be harmful to law enforcement practices. The Chief justice questioned the Attorney General representing Arizona in an exchange with the attorney, “Why are attorneys a menace?” The attorney from Arizona replied, “I did not say he was a menace…” Warren responded, “But you did, if he interjected himself before the trial stage…because it is his duty to raise any defenses that a defendant might have.” As Justice Potter Stewart commented important rights can be lost even weeks before a trial.

   The question for the Chief Justice in Miranda was whether constitutional rights could be lost simply because one was not aware of what they were or that one had them. In order to protect fundamental rights held under the Fifth and Sixth Amendments the right to counsel must be afforded to the suspect.

The Chief Justice took the Miranda opinion for himself. The final opinion was a sixty one page interrogation manual. It recognized the “hydraulic pressures of custodial interrogation”, that the presence of a lawyer for the defendant would help protect both the Fifth and Sixth Amendment rights to counsel and against involuntary self-incrimination, and stated the rule,

         “ We have concluded that without proper safeguards the process of in custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and compel him to speak where he would not otherwise do so freely….” Miranda v Arizona 483 U.S. 436(1966), (Kutler, pg. 632).

           “The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving a warning….so simple we will not pause to inquire in individual cases whether a defendant was aware of his rights. (Id. at 633).

           “The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals.”(Id. at 633).

         “….The  following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior any questioning if he so desires.” (Id. at 635).

Terry v. Ohio

     For ten minutes on the afternoon of October 31, 1963 Cleveland detective Martin McFadden with forty years’ experience on the police force, watched as two men walked back and forth in front of Zucker’s clothing store. McFadden testified they did not look right to him. He suspected they were “casing” the shop for a robbery.

     McFadden approached the suspicious men and asked their names. They mumbled answers. McFadden grabbed the nearest man John Terry and patted him down. He discovered a gun. He discovered another gun in the pocket of the other man Richard Chilton.

    Terry and Chilton were both convicted of carrying a concealed weapon. They appealed, contending an unreasonable search without probable cause by McFadden.

     At the heart of what has been termed the famous “stop and frisk case” was the question,   “Did a police officer have the right to stop and frisk a person on the street given a reasonable suspicion by a police officer that they may be in the planning of commission of a crime?

   Warren assigned the opinion to himself.

           “We are dealing now with more than a governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure him that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him…” Terry v Ohio, 392 U.S. 1(1968).

                We conclude that the revolver seized in Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden  had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the threat of harm if it materialized….We merely hold today that where a police officer observes unusual conduct which leads him reasonably  conclude in light of his experience that criminal activity is afoot…he  is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized mat properly be introduced in evidence against the person from whom they were taken.”  (Id at. 31).

     But, the question might be asked what was the standard of reasonable suspicion? The police officer given his experience had the probable cause to stop, question and do a pat down of the outer clothing, but not probable cause to take into custody. It was an intermediate standard. The Chief Justice might have become aware of law enforcement’s reasonable gripes about the Court’s recent decisions. More probably the Chief Justice just did what seemed to him to be fair given the circumstances.

Judicial Philosophy

      The judicial philosophy of Chief Justice Warren had its roots in the Brown v. Board decision. The Chief Justice wanted to defend the underpinnings of the decision and make sure that in a divided country with much resistance, from at least certain sectors of the public, that there was no backsliding. From then on the Chief Justice began to broaden his philosophy not just to defend the decision in Brown and make sure it was implemented, but to protect the poor and the downtrodden. The Constitution protected all people equally whether rich or poor, whether they knew what their rights were or could afford an attorney or not. For Chief Justice Warren it was more the right or wrong of the case that mattered, the legal basis could always be made to fit the decision. Nevertheless, though legal scholars on the side of judicial restraint complained, the Court’s decisions in general survived and held up, and were based on sound legal principles.

Warren Commission

      President Johnson demanded in the name of patriotic duty that that Chief Justice Warren take up the investigation into the assassination of President Kennedy. Warren loathed the duty, but could not turn down President Johnson’s call to service. The commission concluded the assassination was as a result of a “lone gunman” and not the product of a conspiracy. Conspiracy theorists still charge the commission with a cover-up.


   Guided by Chief Justice Earl Warren the Supreme Court set into a law landmark decisions with ringing phrases such as “ Separate is Not Equal”, “ One Man One Vote” and “ Read Him His Rights”. It would later be called the Warren Court Revolution. The Chief Justice often interrupted lawyers arguing legal precedent before the Court with a simple question, “But, was it fair.” Chief Justice Warren was more concerned with the “facts” than the legal principle and with getting the right outcome, to the frustration of legal precedent oriented Justices and scholars. Both loved and hated he spent most of his life in public service to his country. Today chief Justice Earl Warren is considered one of the greatest and most influential Chief Justices in Supreme Court history.

   He stepped down from the Court in 1969 and was laid to rest, a national hero to many, in Arlington National cemetery in July of 1974.


Abraham, Henry J., Perry, Barbara A. “Freedom and the Court” Oxford University Press, 200 Madison Ave., New York, NY, 1994

Cray, Ed “Chief Justice” Simon and Schuster, Rockefeller Center, 1230 Avenue of the Americas New York, NY, 1997

“Earl Warren” Wikipedia Article April, 2013, at

Kutler, Stanley I. ed. “The Supreme Court and the Constitution” Third Edition, W.W. Knorton&Company, Inc. 500 Fifth Avenue, New York, NY 10110, 1984

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