Earl Warren's Choice

...Warren and His Supreme Court-A Judicial Biography (New York University Press, 853pp ,$29 95) will not wholly satisfy anyone With its detailed discussions of every major case and many minor ones decided by the Warren Court, it seems to be aimed primarily at members of the legal profession Schwartz, an NYU law professor and constitutional scholar, has unquestionably performed a valuable service by reconstructing from official sources, personal papers and interviews the Justices' private debates and arduous wranglings Yet I imagine that attorneys will not read the book from cover to cover If they do acquire this volume —it is a main selection of the Lawyers' Literary Club—they are most likely to place it on their reference shelves, pulling it down for background material Laymen, even those who devotedly follow the peregrinations of our highest tribunal, will certainly find Super Chief heavy going There is too much minutia, not enough connecting tissue Over the final 300 pages or so, the book practically degenerates into a case-by-case recounting of the Court's activities By "judicial biography," Schwartz means something peculiarly hermetic, and somewhere around Frank v Maryland, the case of a man who raised a Fourth Amendment question by refusing to allow a rat inspector to enter his home, one may begin to feel a need for air Obviously, Schwartz is aware of this problem, for in collaboration with Stephan Lesher, he has produced an abridged version, Inside the Warren Court, intended for a wider audience Scheduled for release by Doubleday later this year, it unfortunately goes too far in the opposite direction, substituting superficiality and occasional hyperbole for plodding...

...Interestingly, Tocqueville, with his aristocrat's fears about a tyranny of the majority, spelled out this role for the Court in the 19th century, and there is much to be said for the argument that the Warren Court was an elitist, not a liberal, institution Certainly, by shielding blacks, Communists, the criminally accused and convicted, and atheists against the possible excesses of democratic majorities, it assured its unpopularity with the populist Right Following the school prayer decision, an Alabama Congressman wailed "They put the Negroes in the schools, and now they've driven God out ". This kind of criticism can be brushed aside What should not be dismissed are the alarms sounded by men like Frankfurter who, remembering the days when reactionary judges called the tune, argued that the inherently undemocratic Supreme Court was overstepping its bounds in an essentially democratic system Friends like Archibald Cox have worried, too, asking what would happen to the power of the Court if an unpopular judicial decree were simply ignored (Wondering whether the Army would release a prisoner the Court had ordered freed, a law clerk once asked Warren a similar question "You don't have to worry," he replied "If they don't do this, they've destroyed the whole republic, and they aren't going to do that...

...The Warren years were the culmination of the Court's shift away from a focus on economic issues to a concern with individual rights From the time of the Civil War, an imperious Supreme Court stood as a wall against progressive legislation designed to alleviate capitalism's injustices After 1937, the justices accepted the inevitable and turned increasingly to questions involving the Bill of Rights, making themselves the piotectors of unpopular causes and minorities Hugo Black stood at the center of this transformation...

...Especially troubling is the fact that the Court's authority rests on shakier ground than ever before Judges once were comfortable in the belief that their interpretation of the Constitution was the only interpretation They did not speak for themselves, they were the instruments of higher powers Calvin Coolidge expressed the idea when he said "Men do not make laws, they do but discover them " Individuals like Holmes, from the bench, and Roscoe Pound, from the campus, helped overturn this notion, replacing it with a relativistic, pragmatic conception of the law that stressed human needs instead of absolute truths While these teachings opened the door to the 20th-century welfare state, they scarcely provided a foundation for the Warren Court's human rights interventions For if there are no legal absolutes, judges have no more reason for insisting on their views than do democratically elected legislatures-and probably less reason Black, of course, had a response to this since he was old-fashioned in his absolutism, and by the end of his career was irritating liberals as much as he had earlier irritated conservatives The others on the bench-the Chief Justice in particular-could not escape the accusation of subjectivism They were not interpreting the law, they were merely reading their own feelings into it An exasperated William J Brennan, himself one of the most activist of justices, once exclaimed "Five votes can do anything around here '. Modern jurisprudence, coupled with the Warren Court's activism, has produced a dilemma that will not go away, and some scholars are searching once again tor natural law and absolute rights Schwait may feel that a " judicial biography' need not engage in theoretical discussion But tor a Court where Warren, with his morally based determinations, was the dominant force, scrutiny of the cases no matter how elaborate, is not sufficient By themselves, the Warren Court's decisions rumble around in a vacuum...

...Most of these are contained in the book's early pages, first in the biographical passages on Warren, then in the genuine drama of a new Chief Justice forced to choose sides between the warring factions of a deeply divided Court Warren, Schwartz makes clear, always displayed unusual talents Before reaching the Court in 1953, he was a nationally respected district attorney, a crusading state attorney general, a reforming three-time governor of California-the most popular politician in his state's history As Thomas E Dewey's running mate in 1948 he had the prescience to perceive that the heavily favored Republican ticket was going to be upset by the scrappy Harry S Truman The great stain on Warren's record is the role he played in the forced evacuation of Japanese-Americans during World War II By contrast, perhaps his single most admirable moment until his elevation to Chief Justice camein 1938 when, as Alameda County DA, he refused to install a hidden dictaphone as a means of catching his own father s murderer (who was never discovered...

...By the 1957 term, Warren had moved so solidly into the Black camp that he and Frankfurter were exchanging words in public The break, Schwartz suggests, was as much a function of personality as anything else Frankfurter was a scholar, an intellectual, submerging his personal views in the abstractions of the law "Humanity," he wrote, "is not the test of constitutionality " Such a chilly approach to legality could never have pleased the expansive Chief Justice Warren was warm, direct, humane, and these qualities were carried over into his notions of the law and the Court To him, the role of a judge was to render justice In the Brethren's closed conferences he would summarize cases in terms of their moral values, he sought fairness, not precedent "Law," he told an audience at New York's Jewish Theological Seminary, "floats in a sea of ethics '. Schwartz leaves no doubt that his own sympathies he with the Chief Justice Black, too, is commended for being "in tune with contemporary constitutional needs," whereas Frankfurter is condemned for "an element of shabbiness" in his opinions and a judicial career that" remained a lost opportunity " Yet even those who share Schwartz' perspective may feel that his concentration on the cases, his reluctance to tackle larger theoretical issues, does not do justice to the critics of the Warren Court There is much about the direction taken by the Supreme Court in the '50s and '60s that is extremely problematic...

...At the time Warren donned his judge's robes, the Court's leading thinkers were the professorial Felix Frankfurter and the activist Hugo L Black A self-declared disciple of Oliver Wendell Holmes, Frankfurter was a legal relativist with an abhorrence of "judge-made law " Black, concerned about the protection of individual rights, was an absolutist, especially with regard to the First Amendment Black considered Frankfurter a hypocrite Frankfurter thought Black a demagogue To be sure, neither man allowed a "foolish consistency" to get in his way Frankfurter could make law when it suited him and Black was, upon occasion, the very model of Frankfurterian restraint Nonetheless, theirs was, in Schwartz's words, "the most bitter feud in Supreme Court history ". This battle, and the concomitant struggle for Earl Warren's judicial soul, is the heart of Super Chief Frankfurter assiduously wooed the new Chief Justice as, apparently, he did every new arrival on the bench, and for a while Warren was willing to follow Frankfurter's lead It took a few years before Warren developed the activist stance with which his name is linked, although, as is demonstrated by the unanimous 1954 Brown v Board of Education decision outlawing segregation in the nation's public schools, Warren was quick to exercise his leadership abilities if the cause was right...

...thoroughness Serious readers are better advised to stick with Super Chief and simply skip the cases that do not interest them Selectivity will yield its rewards...