Justice for All Read online

  Table of Contents

  Title Page

  Copyright Page

  Dedication

  PART ONE - MADE BY CALIFORNIA

  Chapter 1 - YOUNG MAN OF CALIFORNIA

  Chapter 2 - AWAY FROM HOME

  Chapter 3 - PROSECUTOR, FATHER

  Chapter 4 - POLITICIAN

  Chapter 5 - MURDER

  Chapter 6 - PROGRESSIVE

  Chapter 7 - DUEL FOR POWER

  Chapter 8 - “THE BEST PEOPLE OF CALIFORNIA”

  PART TWO - IN COMMAND

  Chapter 9 - VICTORY

  Chapter 10 - ASSUMPTION OF POWER

  Chapter 11 - CALIFORNIA’S FAIR DEAL GOVERNOR

  Chapter 12 - IN COMMAND

  Chapter 13 - LOYALTY

  Chapter 14 - “TRAITOR IN OUR DELEGATION”

  PART THREE - AMERICAN JUSTICE

  Chapter 15 - THE CHIEF AND HIS COURT

  Chapter 16 - SMEAR

  Chapter 17 - ALL MEN ARE CREATED EQUAL

  Chapter 18 - JUSTICE

  Chapter 19 - RESISTANCE

  Chapter 20 - “DUMB SWEDE”

  Chapter 21 - KENNEDY, KING, AND A NEW ERA

  Chapter 22 - THE LONGEST YEAR

  Chapter 23 - AN ENFORCED CODE OF DECENCY

  Chapter 24 - THE END

  EPILOGUE

  Acknowledgements

  Notes

  Bibliography

  Index

  PRAISE FOR JUSTICE FOR ALL

  “This tough-minded but essentially admiring book is itself an act of considerable courage. Warren’s enthusiasm for locking up the state’s Japanese and refusing to apologize for so doing (he sincerely thought he was acting in California’s best interest) makes praising him politically incorrect, especially among liberal Democrats. He is an unmentionable anathema to today’s ruling Republicans. So, the legacy of Bakersfield’s Earl Warren, who died in 1974, remains suspended in silent limbo. Newton’s book is a loud protest against that silence.”—Los Angeles Times Book Review

  “The great scope of ‘the nation he made’ as chief justice from 1953 to 1969 is an extraordinary one to consider, as is the man himself. In Justice for All, both receive a vivid and distinguished account.”—The Boston Globe

  “Deeply researched . . . provides insight and a timely reminder into the character of the most consequential justice of the last half-century.”

  —Chicago Tribune

  “Incisive and highly readable.”—San Francisco Chronicle

  “Excellent . . . scrupulous . . . subtle . . . Newton’s comprehensive and balanced political history usefully cuts through the technical details and casts fresh light on Warren’s legacy.”—The Washington Post

  “A thorough and enlightening biography.”—The Atlantic

  “Meticulously researched and well-written.”—The Dallas Morning News

  “[Newton’s] reconstructions of the dickerings, compromises, and psychological gamesmanship that went into forging each ruling under Warren’s guidance are fascinating, exceptionally lucid in laying out the legal issues and political context of every major case, and organized with compelling narrative momentum.”—Los Angeles magazine

  “An enjoyable and informative read. Newton combines academic scholarship with journalistic writing.”—Daily Journal (Los Angeles and San Francisco)

  “Newton does [Warren’s legacy] more than ample honor in his fine biography.”

  —The (Durham, NC) Herald-Sun

  “Los Angeles Times editor and reporter Newton delivers the definitive biography of Earl Warren (1891-1974) for this generation. Newton’s masterful narrative synthesizes Warren in all his contradictory guises. . . . Using testimony of insiders who knew the man well, Newton brilliantly depicts the many-sided Warren.”—Publishers Weekly (starred and boxed review)

  “It will be a long, long time before someone writes a better biography of Earl Warren than Jim Newton has written. Newton’s choices for the Court years are judicious and show a sure hand in understanding what was important and what was not. For anyone with an interest in either twentieth-century American history or the U.S. Supreme Court, Justice for All is a must.”

  —Lucas A. Powe, History Book Club, Book-of-the-Month Club

  “This is exemplary biography—readable, intellectually keen, authoritative, and when appropriate, moving. It captures the anguish of an America struggling with racial injustice, the Kennedy assassination, and other national travails. At the heart of the story is a middle-of-the-road Republican from California who, when tested, proves anything but ordinary.”

  —John S. Carroll, former editor, Los Angeles Times

  “A thorough and thoughtful view of Warren and his place in American legal and political history.”—Library Journal

  “Ours is a golden age of political biography, and nowhere is this more evident than in Jim Newton’s new and ambitious reassessment of the life of Chief Justice Earl Warren and Warren’s pivotal role in the making of contemporary America. Only a skilled and seasoned reporter with a comprehensive command of Warren’s California background could have produced this definitive study.”

  —Kevin Starr, professor of history, University of Southern California, and author of California and the American Dream

  “The best judicial biography I have read. A compelling and masterfully written account of one of the most important figures in twentieth-century America.”

  —Erwin Chemerinsky, constitutional scholar and Duke University law professor

  “A superb new biography . . . Highly readable prose . . . Newton mined archival and other material on Warren with the same thoroughness that the Forty-Niners once devoted to California gold fields.”—Washington Lawyer

  “[Newton] is . . . a writer capable of making history read like good literature.”

  —Orange County Register

  RIVERHEAD BOOKS

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  While the author has made every effort to provide accurate telephone numbers and Internet addresses at the time of publication, neither the publisher nor the author assumes any responsibility for errors, or for changes that occur after publication. Further, the publisher does not have any control over and does not assume any responsibility for author or third-party websites or their content.

  The author gratefully acknowledges permission to quote from the following:

  Excerpts from the Earl Warren Oral History Project. Courtesy The Bancroft Library, University of

  California, Berkeley.

  “The Gift Outright” from The Poetry of Robert Frost, edited by Edward Connery Lathem. Copyright

  1969 by Henry Holt and Company. Copyright 1942 by Robert Frost, copyright 1970 by Lesley Frost

 
Ballantine. .

  Copyright © 2006 by James S. Newton

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  Newton, Jim, date.

  Justice for all : Earl Warren and the nation he made / by Jim Newton.

  p. cm.

  Includes bibliographical references and index.

  eISBN : 978-1-594-48270-0

  1. Warren, Earl, 1891-1974. 2. Judges—United States—Biography. 3. United States. Supreme

  Court—Biography. I. Title.

  KF8745.W3N

  347.73’2634—dc22

  [B]

  http://us.penguingroup.com

  To Karlene and Jack

  Prologue

  FIRST VACANCY

  THE GOVERNOR WAS ASLEEP, and those who knew him knew he did not like interruption. So when California’s First Lady snatched the receiver from its cradle at dawn on September 8, 1953, she assumed it was urgent.

  “I’d like to talk to the boss and it’s really important,” Bartley Cavanaugh said as she answered. Nina Warren was a gentle woman but a tough guardian, protective of her husband and children. She did not put callers through casually. This time, she heard the tightness in Cavanaugh’s voice and relented. “I’ll wake him up.”1

  Cavanaugh had known Earl Warren for more than thirty years. They’d been acquaintances first, their lives crossing occasionally in the years just after World War I, when they both worked in the hustle and grab of California’s legislature, Warren as a young prosecutor with occasional business in Sacramento, and Cavanaugh as the district manager for a cement company with government work. In 1939, when Warren’s career was just taking off and he was confronted with a tough first test of his new position as California attorney general, he’d hauled Cavanaugh before a grand jury to make him testify about political contributions to Frank Merriam, who had left the California governorship just weeks earlier and whom Cavanaugh had served as a campaign manager.2 Time had papered over that indignity, and suffering had fused their lives—in late 1950, both had children fall victim to polio. Their youngsters recovered slowly, and the two men had leaned on each other for comfort in those difficult weeks.3

  Now they were close, unusual for Warren, who was friendly with many people but intimate with few. Warren had an extraordinary capacity for names and personal details—a self-taught and much-practiced politician’s skill for recalling a constituent’s alma mater or the name of his oldest son, for absorbing the interest and attention of the person with whom he was speaking, and, for that moment, drawing that person to his intense attention. But for all that bluffness, Warren was a private man with few ardent associations outside his family. He was formal and reserved—he stood whenever his wife entered a room, looked good in a tux, held up his end of a receiving line—but he shared little of his inner self. He rarely sought or accepted help. Cavanaugh was one of those few who could so presume.

  When Warren’s voice, a voice known to every Californian of his generation, came sleepily on the line, Cavanaugh blurted out the news: “Did you know that the chief justice has just died?” he asked.

  “No, I didn’t,” Warren responded. “That’s too bad.”

  “Well,” Cavanaugh asked, “would you mind if I got my nose into this thing?”

  Warren was skeptical. “This is a field,” the governor offered cautiously, “that you shouldn’t do too much in.”4

  If reserve was one of Warren’s identifying characteristics, caution was another. Warren’s ascent through California politics had been deliberate—he spent more than a decade as Alameda County’s district attorney before an opening convinced him to run for attorney general. Once there, he had been inclined to stay, but the state’s then governor slighted Warren, and Warren did not take insult lightly. At the next opportunity, he ran for the job of governor and pushed his adversary aside. Still, that had taken provocation. Warren did not make snap decisions, and Cavanaugh knew it. Moreover, this was a spot on the Supreme Court, and the audience for it was not the electorate but a president.

  One does not run for the Court, precisely. One pursues it by indirection. Friends lobby and beseech. The candidate himself is expected not to covet the job too openly. Warren knew that, and though he wanted a seat on the Court—wanted it badly, in fact—he knew better than to advertise his interest.

  Still, Cavanaugh dared to persist. The early commentaries announcing the death of Chief Justice Fred Vinson included remarks from leading American Catholics that the Court had no Catholic members and that Vinson’s death represented a chance for the nation’s new president, Dwight Eisenhower, to fill that void. As both Cavanaugh and Warren recognized, political calculations also might have inclined Eisenhower in that direction: Although he had been elected a year earlier to overwhelming national acclaim, Eisenhower’s one political weak spot was the Northeast, where Catholics held substantial influence. The East Coast was three hours ahead of California, and those who wanted a Catholic nominee already were at work. For Warren to have a place in the running, his supporters would have to work fast to keep the nomination from being wrapped up.

  Warren saw Cavanaugh’s point and, after first hesitating, now agreed to set his candidacy in motion. Cavanaugh went to work. He called the bishop of Sacramento, who called another cardinal, who called Cardinal Spellman in New York, and “by noontime the White House was aware that those men in the church at least, and they were pretty ranking, would look with favor on Warren.”5 Warren’s campaign for chief justice had begun.

  While Cavanaugh put Warren’s hat in the ring, Eisenhower and his men set about their work as well. This was not a vacancy that Eisenhower had expected, but he welcomed it—as a chance to extend his own influence and as an opportunity to bring cohesion to a Court whose struggles had become a source of distraction and even embarrassment. Fred Vinson labored from 1946 to 1953 against smarter, more determined colleagues to bring order to the Supreme Court and stability to the nation whose laws it oversaw. By the time his heart gave out in the hours after midnight of September 8, 1953, it was painfully clear that he had failed as chief justice.

  As word of Vinson’s death crackled across the nation’s radios, his fellow justices generally praised Vinson as a friend and leader, as a gentleman, as a jurist, and as a “lovable man who had devoted his life to the public good.”6 Two of the Court’s great minds, Justices Hugo Black and Robert Jackson, had feuded for years but held in common a mild disrespect for the now dead chief; they each offered gracious but restrained praise. By contrast, Associate Justice Felix Frankfurter was never one to disguise his contempt for a colleague, even a dead one. He released a terse one-sentence statement: “Chief Justice Vinson’s death comes as a great shock to me.”7 In private, he told a clerk that it provided him with his first solid evidence of the existence of God.8

  Those deep and personal divisions among the justices made the job of replacing Vinson an urgent one. The next chief justice would be charged with bringing unity to a fractured Court even as it turned to face some of the nation’s most pressing questions. War and renewed prosperity had brought America to the forefront of the world’s nations, but in 1953 it remained an immature country in many respects. Institutionally sanctioned racism eroded America’s moral authority. The Cold War and internal debate over Communism ran rivulets of fear and divisiveness through the body politic. Spotty respect for the human rights promised to its citizens in the Declaration of Independence but withheld from them by its courts undermined America’s desire to lead the world by example. Under Vinson, the Court’s divisions had underscored intellectual disagreement over how far
it could or should go in protecting the civil and economic rights of Americans. Now, with the center chair open, nothing less than the place of the Supreme Court in American life and of America in the world was at stake.

  James Reston of the New York Times—the most influential reporter of his day—informed America the following morning of the circumstances of the chief justice’s death, then turned coolly to the business at hand. He ticked off the list of possible successors. Among them: Thomas Dewey, the governor of New York, once nearly president himself, now the “leader of the Republican liberal wing”; John J. McCloy, former U.S. high commissioner in Germany; New Jersey Supreme Court chief justice Arthur Vanderbilt; and John Foster Dulles, brilliant and pompous and recently selected by Eisenhower as his secretary of state. While offering up those possibilities, Reston cautioned “there was no hard evidence to suggest . . . that [they] were anything except guesses.” One name, however, Reston elevated to special importance. “Gov. Earl Warren of California,” Reston wrote, “was being prominently mentioned as a likely successor to the Kentuckian.”9

  The president liked to delegate, and he entrusted the task of identifying candidates to Herbert Brownell, his attorney general and political adviser, one of his closest friends in politics and one of the few in his cabinet to whom Eisenhower felt personally attached. Brownell went to work. He shuffled name after name, guided by Eisenhower’s loose criteria. The president wanted the next justice to be a capable administrator and young enough to wield influence over many years; the age cutoff, Eisenhower said, was sixty-two. More generally, Eisenhower told the dean of Columbia Law School, he was seeking a “man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.”10