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Ask the author: Paul Moke on Earl Warren — The man & his measure

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The following is a series of questions posed by Ronald Collins on the occasion of the publication of Earl Warren and the Struggle for Justice (Lexington Books, 2015, pp. 360), by Wilmington College political science professor Paul Moke.

Welcome, and thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your new book.

Question: How and why did you come to write this biography?

Moke: As a youth in the 1960s, I attended one of the first fully integrated high schools in central Ohio. Although the full meaning of the social experiment with desegregation in my high school escaped me at the time, over the years I realized that the rich interracial experiences I had in the classroom, on the football field, and in social settings reflected Earl Warren’s vision for public education in the United States. In subsequent decades, as jurists and scholars criticized Warren’s major decisions, public schools re-segregated along racial and class lines, and problems in the field of criminal justice have intensified. Given the importance of racial justice to the future of American democracy, I decided it would be a good idea to learn more about Earl Warren and his ideas.  

Question: You are a political scientist (though also a civil liberties lawyer). Is there any fundamental difference in how you as a political scientist look at the Court in contrast to how law professors do so? 

Moke: Yes, there are fundamental differences. Most law professors emphasize the case method and the internal logic (or illogic) of judicial decisions. While my work as a political scientist includes these methods, I tend to focus more on the Supreme Court’s history, its institutional and human dynamics, and its social context, themes that fit well within a framework of judicial biography. Ironically, within the discipline of political science, judicial biographies recently have fallen into disfavor, as scholars instead emphasize empirical analysis of political behavior. Thus my work on Warren might best be considered a form of political history, rather than a work of political science per se.

Question: Much has been written about Chief Justice Earl Warren, including biographies by Bernard Schwartz, G. Edward White, Jim Newton, and Ed Cray, among others. And much scholarly attention has been devoted to the Warren Court. What does your book add to the biographical mix and our understanding of Earl Warren?

Moke: My book strikes a balance between detailed examinations of Warren’s life, written primarily by journalists, and legal treatises about the work of the Warren Court, written primarily for professional audiences. Unlike others, I explore the key events of Warren’s life, both on and off the bench, as they relate to the development of his social justice philosophy. I also offer a critique of recent academic works sharply critical of Earl Warren and the Warren Court. Using new sources of information, I examine the role that Warren’s professors at the University of California played in the development of his world view, the Point Lobos murder trial (arguably Warren’s most important legal case as a district attorney), and his conflicts with J. Edgar Hoover during the Warren Commission’s investigation into the assassination of President Kennedy.

Earl Warren’s political background

Question: How much do you think his experience as a political actor (as state attorney general, governor of California, and a presidential candidate) shaped Earl Warren’s outlook on the Court?

Moke: Warren’s political background strongly influenced both his identity as a jurist and his approach to the work of the Court. In elected office, Warren pursued a Progressive vision of clean government, bipartisanship, and professional ethics. As governor, his negative experience with the California legislature in a fight over health care reform reinforced his conviction that the institutions of American government needed to be free from the domination of privileged insiders. As Chief Justice, his major decisions – such as those in Brown v. Board of Education, Miranda v. Arizona, Reynolds v. Sims, and Loving v. Virginia – used the power of judicial review to raise the professional standards of American public administrators in the fields of education, law enforcement, electoral administration, and family law.

Question: In writing about the internment of Japanese Americans during World War II, you write that Earl Warren “benefitted from his harsh treatment of the Japanese, both by using the issue successfully in the 1942 gubernatorial campaign and by incorporating it as a theme in national speeches he gave in 1943 and 1944 to raise his profile among the Republicans across the country.”

This seems to be a very different Earl Warren than the one on display a decade later in Brown v. Board of Education. Why the change? Was it simply the war? Politics? Ambition? Or something else entirely?

Moke: My take is that one of the central tenets of Warren’s Progressivism involved the interest of public security, an interest that connects the “early” Warren with the “late” Warren. His willingness to defer to the national security state occurred most clearly during World War II and later in his work as Chair of the Warren Commission. In the aftermath of Pearl Harbor, when naval resources for the protection of the West Coast were desperately thin, Warren perceived a threat to national security that in his mind justified the internment policy.

The Brown decision took place outside the context of a threat to national security. It also arose after the war, when Warren’s views on matters of race and ethnicity gradually evolved under the influence of new acquaintances. Arguably, his chauffeur, Edwin “Pat” Patterson, played a key role in this process. Patterson’s family roots lay in the Creole neighborhoods of New Orleans, a community with a long history of opposition to Jim Crow and the place where the Plessy v. Ferguson case itself originated. Patterson helped Warren appreciate the evils of America’s racial stratification system.

The imperative of public security in Warren’s value system reappeared in 1964, when he unilaterally decided that the members of the Warren Commission and its staff should not examine the FBI’s files on Lee Harvey Oswald and that forensic evidence concerning Kennedy’s autopsy should be withheld from the public. In the context of the Cold War, and a crisis atmosphere within the White House, Warren again deferred to national security officials.

Question: Professor Larry G. Simon (a former Warren law clerk) has written that “Warren was not a great judge under traditional standards used to assess judicial stature, because he was neither especially skilled nor interested in legal craft or theory.” Do you agree? If so, what then made him great in the minds of so many.

Moke: Respectfully, I must disagree with this assertion. Warren’s approach to the law reflected his years in trial court, where he effectively combined a careful analysis of the facts with the articulation of an underlying moral principle, which he then used to persuade the jury. On the Court, he varied this approach slightly through the means of legal realism and constitutional ethics. Some scholars are uncomfortable with Warren’s style, favoring the technical focus of jurists like Felix Frankfurter, who downplayed the role of ethics in constitutional interpretation. But most Americans now agree with Warren that the United States in the 1950s and 1960s desperately needed a levelheaded form of constitutional ethics in order to bring the legacy of Jim Crow to an end. Warren wrote his leading decisions not for legal professionals but to win the support of his fellow Justices and persuade the public. Powell v. McCormack, one of his most thoughtful and well-researched opinions, shows his ability to engage in high levels of legal craftsmanship.

Racial justice and interracial marriage circa 1954-55

Question: Not long after Brown was decided, the Warren Court declined to review Jackson v. Alabama and Naim v. Naim– two cases that challenged the constitutionality of laws prohibiting miscegenation. Based on what we now know, there was considerable debate among the Justices as to whether to hear these cases because Brown had yet to be implemented. The Chief Justice wanted to hear the cases and was so upset when a majority of his colleagues refused to do so that he prepared a dissent from the denial of cert. Ultimately, he withdrew that dissent and remained silent. It took twelve years before the Court finally resolved this issue in Loving v. Virginia.

Who do you think had the better view: the activist Chief Justice who wished to hear the case or the conciliatory and cautious Chief Justice who backed off?

Moke: Although these cases raised sensitive and important issues, my sense is that Warren acted prudently in backing off. At the time, he was new to the Court and still in the initial stages of building relationships with his colleagues. Likewise, even at that early point in the evolution of school desegregation law, resistance to the Brown I decision was growing, especially in the Deep South. In the face of opposition from the political branches and with violent demonstrations beginning to take place, the Court needed all the allies it could find. Introducing the issue of miscegenation in 1955 would have been highly volatile and counter-productive, and, in retrospect, it was wise for the Court to wait a few more years before deciding the question.

Question: Apart from his opinion in Brown v. Board, what do you think was Earl Warren’s greatest achievement?

Moke: Generally, Warren’s greatest achievements lay in his legal support for the civil rights movement, which he did consistently in many cases throughout his tenure on the Court. Although he was not always the author of such decisions, his values and voice always stand out, from the leadership he displayed in the case selection and opinion assignment process, to his teamwork with other Justices in the development of constitutional doctrine in the sit-in cases, the New York Times defamation case, and the legislative malapportionment cases.

The depth of his concern is perhaps best illustrated by a withdrawn and unpublished dissent I found in his papers in the Library of Congress. The case was Barr v. City of Columbia, a sit-in case in which he compared the status of blacks in the Jim Crow South to that of the untouchable caste in India. But for Warren’s leadership and guiding hand in cases where the interests of the movement came under significant attack, the history of the civil rights movement may have had a very different outcome.

Controversial cases

Question: How do you explain the following contrast: On the one hand, there was the image of Earl Warren as a sometimes relentless prosecutor (someone who favored “incommunicado interrogations, bugged hotel rooms and jail cells” and more), and on the other hand, the image of the man who helped usher in perhaps the greatest criminal justice revolution in our history?

Moke: Warren was the product of his time. As the 1931 report of the Wickersham Commission documents, such methods were commonplace in American law enforcement during the early decades of the twentieth century. Warren’s experience during the Point Lobos murder trial in Oakland, in which the defense cross-examined him about his interrogation methods, led him to disavow such methods in future cases, including in the investigation of his own father’s murder one year later. His opinion in Miranda v. Arizona reflects his close association with August Vollmer, the Berkeley chief of police and early advocate for custodial interrogation reform, in the 1920s and early 30s; it might best be interpreted as the apogee of the Wickersham Commission.

Question: The Chief Justice’s opinion in Miranda was most controversial, to say the least. “In many ways,” you note, “the timing of the Miranda decision could not have been worse.” Not only was there a backlash of public opinion and pushback from police and prosecutors, Congress also weighed in with an attempt to “overrule” the decision by way of Omnibus Safe Streets and Crime Control Act. To make matters worse, since then the Court has done much to undermine the ruling, even if it formally “saved” it in Dickerson v. United States. Given all that and more (as recounted in Liva Baker’s Miranda: Crime, Law & Politics (1983)), was Miranda a big mistake or a big breakthrough in American criminal justice?

Moke: Its unfortunate timing notwithstanding, Miranda represents an important milestone in the history of American criminal justice. The case-by-case review of issues involving custodial interrogation under the old voluntariness standard proved unworkable because it provided little guidance for the law enforcement community. Warren’s “legislative approach” provided a clear rule for future reference. The announcement of the Miranda decision in the middle of a crime wave, in conjunction with Richard Nixon’s critique of the Warren Court on the campaign trail (and subsequent opportunities for new judicial appointments), ushered in a period of “conservative retrenchment” on the Supreme Court. Although conservative critics such as the late William J. Stuntz assail the “centralized, bureaucratic, and legalized” nature of the Warren Court’s due process revolution, of which Miranda is broadly representative, they overstate the benefits and understate the costs of informal Gilded Age justice systems, which yielded problems with corruption, unequal justice, and under-enforcement of the law.

Question: Recently, in Shapiro v. McManus, some of the Justices expressed concern over the Court becoming involved in the political maneuverings of redistricting, the view being that such cases might not be justiciable. In this regard, one is reminded of Reynolds v. Sims and the differing views of Chief Justice Warren, who authored the majority opinion, and Justice John Marshall Harlan, who dissented. Looking back, who do you think had the better of the argument and why?

Moke: In recognizing the structural inequality of Alabama’s legislative apportionment system, Warren endorsed a new conception of federal citizenship, grounded in the principle of “one person, one vote.” As in Brown, his opinion in Reynolds helped to remedy longstanding defects in the building blocks of American government. Justice Harlan’s criticism that the Court should not allow political reform to masquerade as constitutional litigation was unpersuasive, in large part because he ignored the facts. Simply put, Landes County, with a population of 15,417 people, elected one senator, whereas Jefferson County, with a population of 600,000, also elected just one senator. Warren regarded Reynolds as his most important contribution to American law, and he often said that if the federal courts had addressed legislative malapportionment earlier, there would have been no need for the Brown decision. His willingness to exercise judicial authority as a means of strengthening the democratic process and his creativity in designing legal tests and remedies well might serve as an example for the Court in the current political gerrymandering controversy.

Warren on commercial and corporate speech

Question: The Burger and Rehnquist Courts brought commercial speech into the forefront of First Amendment jurisprudence in ways that the Warren Court had not (see, for example, Justice William O. Douglas’s concurring opinion in Cammarano v. United States). How do you think Chief Justice Warren might have come down on this question?

Moke: Warren was no stranger to the problem of corporate corruption in the world of politics. Much of his experience as the district attorney for Alameda County involved precisely this issue. In the Oakland street paving scandal, for example, he saw firsthand the enormous power of corporations in a “pay to play” political process, highlighting the threat of actual corruption and the dangers of adverse public reaction to it. On a broader level, much of Warren’s constitutional jurisprudence can be interpreted as an effort to protect political outsiders from the tyranny of insiders, a position that would nudge him in the direction of protecting self-government from the influence of big corporate money. He probably would have joined Justice John Paul Stevens’s dissenting opinion in Citizens United v. FEC, embracing the position that corporations should not enjoy the same rights as individuals under First Amendment law. Hypothetically, such a “vote” would have elevated Stevens’s dissent to the status of a majority opinion.

Question: How would you respond to the claim that the Warren Court glamorized a “federal courts litigation” mindset when it came to social justice issues and thereby diluted the value of a direct political action approach?

Moke: The strategy of using federal litigation as a vehicle for social change antedated the Warren Court, as illustrated by the NAACP’s use of litigation in unequal school funding cases between 1935 and the Brown decision as well as the broader civil rights movement’s involvement in criminal justice reform in the Scottsboro cases of the 1930s. Yet the Brown case did serve as a model for liberation that many civil rights and civil liberties groups have utilized in subsequent years, among them organizations like LULAC that defended the rights of Hispanic Americans, gay and lesbian organizations that fought for legal and political equality, and conservative groups such as the American Center for Law and Justice. This trend is congruent with Warren’s belief that federal courts should serve as a counterweight to the majoritarian political process in proper cases.

The Fortas flap

Question: Do you think Warren’s endorsement of Abe Fortas to be his successor was his biggest mistake? When that failed, and Richard Nixon became president, the Warren Court era ended. No? On that score, you quote Warren as saying: “If I had ever known what was going to happen to this country – and this Court – I never would have resigned. They would have had to carry me out of here on a plank.”

Was his biggest failure, then, a political one, a lack of political foresight?

Moke: The record is fairly clear that Warren wanted Arthur Goldberg to succeed him as Chief Justice, even in the period following Goldberg’s resignation from the Court. Only in the summer of 1968, when it became apparent that President Johnson would not nominate Goldberg and instead would proceed with Fortas, did Warren endorse Fortas for the job. Warren’s quote, given to a New York Times reporter shortly before Warren’s death, reflects his disappointment with the conservative direction of the Burger Court in school desegregation and criminal procedure cases, as well as his outrage about Richard Nixon’s illegal actions against anti-war activists and Democratic Party officials during the Watergate scandal.

Arguably, Warren waited too long to resign as Chief Justice, a point he conceded in a conversation with Arthur Goldberg in the spring of 1968. But one cannot really fault him for failing to predict accurately the outcome of the 1968 presidential election or the political assassinations that helped to determine it.

Warren, Burger, Rehnquist, and Roberts

Question: Was Earl Warren a Chief Justice suited mainly for his time, or might he have been great if, say, he were Chief Justice during the Burger and Rehnquist eras?

Moke: At the outset, I should note parenthetically that the methodologies of history and political science that I used in my text intentionally do not venture into such counterfactual questions, and I certainly cannot claim any expertise in the use of a crystal ball. That said, Warren’s tenure as Chief Justice coincided with the rise of a worldwide movement for racial justice and liberation from colonialism, a movement that in the context of the Cold War placed the struggle for equal rights in the South in the forefront of American foreign policy in a battle for the hearts and minds of the underdeveloped world. Viewed in this context, the symbiotic relationship between the Warren Court and the civil rights movement and Warren’s unique approach as Chief Justice mean that in many ways he was suited mainly for his own time.

The economic challenges of de-industrialization and globalization that arose during the Burger and Rehnquist eras, together with the divisive cultural politics of the Nixon and Reagan administrations, made it difficult for social movements involving racial justice to maintain a united front across racial and class lines. Without a strong social movement that brought suitable cases forward, the infrastructure of at least part of the Warren Court’s reformist impulse would have been absent. Yet many of the leading social justice cases of the Burger and Rehnquist eras resulted in five-to-four decisions, including Rodriguez v. San Antonio School District, Milliken v. Bradley, and McCleskey v. Kemp, and Warren’s vote would have made a crucial difference. His close collaboration with Justice William Brennan would have continued into the 1970s and 80s, and one can imagine additional alliances between Warren and Justices Harry Blackmun and John Paul Stevens in civil rights and criminal justice cases and with Justice Ruth Bader Ginsburg in women’s rights cases. Under this hypothetical scenario, perhaps one of his “great achievements” in the Rehnquist era might have been a different outcome in Bush v. Gore.

Question: How is Chief Justice John Roberts most like, and unlike, Earl Warren?

Moke: Like Warren, Chief Justice John Roberts came to power under the auspices of the Republican Party. Both Warren and Roberts entered the Court in the position of Chief Justice, and both have managed the business of the Court in a fair and efficient manner. Likewise, both have sought to build a climate of mutual respect in the face of moderate or even high levels of personal acrimony that at times have caused the Court to resemble, in the words of Justice Oliver Wendell Holmes, “nine scorpions in a bottle.”

In matters of personal and professional background their differences abound. Warren was born into a family that faced financial hardship throughout his youth and adolescence. As a teenager and young adult, he worked part time as a laborer on the Southern Pacific Railroad, and he attended college and law school at the University of California, a public institution. Like Chief Justices Charles Evans Hughes and William Howard Taft before him, Warren came from a background as an elected political official, a condition not uncommon among the Justices of that era. In contrast, Roberts grew up in relative prosperity, the son of an executive in the steel industry. Roberts attended private schools in northwest Indiana, Harvard College, and Harvard Law School, then worked for the Department of Justice and the Office of White House Counsel in the Reagan and Bush I Administrations and later in private practice. He had no background in elective office.

Warren and Roberts also differ in their approaches to constitutional law. Warren strengthened federal rights in the context of the due process revolution, the law of democracy, and in his equal protection and civil rights jurisprudence. In contrast, Roberts has followed William Rehnquist in increasing the scope of state autonomy and in his deference to political majorities in the framing of civil rights policy and economic elites in campaign finance cases. His decisions in the Shelby County v. Holder case striking down the preclearance provisions of the Voting Rights Act and his vote with the majority in Citizens United illustrate this trend. Their paths diverge widely, with substantial consequences for the body politic.

Recommended Citation: Ron Collins, Ask the author: Paul Moke on Earl Warren — The man & his measure, SCOTUSblog (Nov. 27, 2015, 12:39 PM),