Looking back: Earl Warren’s extra-judicial assignment
on Feb 20, 2014 at 2:03 pm
This post is the latest in an occasional series from the Supreme Court Historical Society looking back at events in the Court’s history – here, the recent fiftieth anniversary of the Warren Commission. Clare Cushman is the Director of Publications at the Supreme Court Historical Society and author of Courtwatchers: Eyewitness Accounts in Supreme Court History.
When Lyndon B. Johnson initially asked Earl Warren to chair the commission to investigate John F. Kennedy’s assassination, the Chief Justice respectfully declined. His reasons: “First, it is not in the constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission; second, it would distract a Justice from the work of the Court, which had a heavy docket; and, third, it was impossible to see what litigation such a commission might spawn, with resulting disqualification of the Justice from sitting on the case.” Concerned that the wild conspiracy stories circulating around the world might lead to nuclear war, Johnson insisted. He said it was Warren’s patriotic duty “in this hour of trouble.”
On the first day the Commission met, Warren, who was a close friend of Kennedy’s, told his staff: “I enter into it with great feeling of both inadequacy and humility because the very thought of reviewing these details day by day is really sickening to me.” Despite such misgivings, Warren dutifully set up the Commission in offices diagonally across the street from the Supreme Court – on the fourth floor of the Veterans of Foreign Wars building — so that he could carry on his full Court duties during the grueling ten-month investigation.
During its third meeting, on December 15, 1963, the Commission discussed the problem of how to deal with the press. Although as governor of California he had embraced the Fourth Estate, Warren had grown used to keeping reporters at arm’s length since he had become head of the judiciary a decade before. Warren emphatically told the other members present at that meeting that he would refuse to speak to TV reporters: “I never have [appeared on television] and I don’t propose to do it here…. I am going to treat this as much in a judicial way as I possibly can, and that in the first place is not to talk.” He also declined to hire a press specialist, which Commission staffer Howard P. Willens says in retrospect “was probably a mistake.” Instead, Commission members issued a short press release after every meeting and mostly dodged the cameras and microphones that besieged them.
Stuart R. Pollak, who clerked for the Chief Justice in the 1962 Term and was later loaned by the Justice Department to help write the Warren Commission report, witnessed first-hand the continuity of Warren’s philosophy on press secrecy from the Court to the Commission. From day one the Chief Justice had emphasized confidentiality to Pollak and the other Supreme Court clerks: “After decisions come down, you are going to be approached…Great thing for your egos to be able to talk to the press. [But] There’s no personal aggrandizement here….What went on in leading up to the opinion, that stays in here. The Court issues its written opinions and the written opinions are what is out there for people to interpret.”
But while this secrecy policy “absolutely fit the Court,” according to Pollak, Warren’s conviction that the Commission’s report would “speak for itself” was misguided. “I think most of the people who were connected with the Commission maintained their silence much longer really in deference to this view from the Chief,” Pollak recalls, “And I think perhaps from a historical perspective it would have been better if people . . . had spoken up more quickly and come to the defense of the report.”
Johnson’s choice of the Chief Justice to head the Commission was thus problematic for reasons other than those Warren had outlined to the President when he first turned him down. The Chief was unprepared to see the need for transparency. Operating in secrecy also made it easier for him to get the work done quickly, so he could return to his real job. Had Warren appeared on television defending the report’s findings, or assigned other Commission members to speak to the press, would all conspiracy theories have been laid to rest? It is doubtful, as the Commission committed other procedural errors.
But daily briefings to reporters and public airings of the Commission’s work would have shown the doubting public that Warren and his staff were men of integrity with crack legal skills who were working their hardest to uncover the truth.
Earl Warren, The Memoirs of Chief Justice Earl Warren (Doubleday, 1977), Warren Commission Executive Session Transcripts, Howard P. Willens, History Will Prove Us Right, Inside the Warren Commission (The Overlook Press, 2013), Stuart R. Pollak, Oral History, The Bancroft Library of the University of California, Berkeley