Super Chief

Joined by a crowd of select guests, current and former members of the Supreme Court gathered at the Court’s Great Hall to honor Earl Warren’s passing on July 11, 1974. His casket rested atop the catafalque that had carried Abraham Lincoln’s remains more than a century earlier. Warren’s black leather chair sat a few feet away as if the man dubbed “Super Chief” by his brethren was presiding over the ceremony in spirit. 

Outside on the Court’s grounds, a crowd waited, in what was perhaps the most fitting tribute to Warren’s memory. Hovering above them at the building’s entrance stood the monograph: equal justice under law.

For most of the nation’s history, the justices had rarely lived up to that ideal. While Chief Justice John Marshall was revered for expanding federal and judicial authority to bind together a fledgling nation in the first three decades of the 19th century, he did little to promote equality. His successors fared far worse. Their most notorious rulings — the Dred Scott decision in 1857 and Plessy v. Ferguson four decades later — embedded racist values into the Constitution. For nearly a century after the passage of the Civil War Amendments, justices used them to prop up contractual and property rights and curtail economic regulations, rather than to protect the population the amendments were drafted to defend. The institution’s failures extended far beyond the African American population. The Court’s endorsement of Japanese internment (a policy that Warren supported as California Attorney General and Governor and came to deeply regret) in Korematsu and McCarthyism exemplified its unwillingness to block governmental abuses of power. Defendants enjoyed few of the constitutional protections accorded to them in the Bill of Rights. Extensive censorship and state-mandated prayers undermined the First Amendment. Large segments of the population had no access to the ballot and many more lived in warped legislative districts reminiscent of Britain’s rotten boroughs.

Warren’s 16 years at the helm upended the Court’s disgraceful record. In cases involving McCarthyism, due process for defendants, privacy, free speech, the separation of church and state, and a range of other civil and political rights, he transformed the institution into a consistent force for equality and liberty for the first and only time in its history. 

As one of nine justices, Warren didn’t act alone. A series of liberal jurists — some of them, legends in their own right — such as Hugo Black, William Douglas, Arthur Goldberg, Abe Fortas, Thurgood Marshall, and most notably, William Brennan Jr., Warren’s closest colleague and principal lieutenant on the bench, played key roles on the Warren Court. Without the chief justice at the helm, however, it would have been difficult for the Court to achieve such historical renown. Prior to Warren’s arrival, the Court had stumbled through a dozen years of rudderless leadership and incessant division: a bitter feud among justices Felix Frankfurter and Robert Jackson on one side and Black and Douglas on the other nearly paralyzed the institution. While historians debate whether the Court would have outlawed segregation when it had considered Brown v. Board prior to Warren’s arrival, nearly every chronicler of the case points to Warren’s leadership as the key to arriving at Brown’s unanimous ruling. Justice Harold Burton was among them. “This would have been impossible a year ago,” Burton wrote in his diary when Warren secured the last holdout in Brown. Warren pulled off similar feats in other divisive cases. “By some process short of the occult,” explained Fortas, who joined the Court in 1965, “Warren was a great, powerful leader.”

Warren’s steadfast belief in a simple set of principles contributed to his success in an institution mired by strong personalities and bickering justices who often debated complex legal topics. He lacked the kind of underlying judicial philosophy claimed by many justices today, such as originalism and textualism, and wasn’t a particularly gifted draftsman. What made him so effective was his emphasis on fair outcomes, his policy of applying the law equally to all Americans, and perhaps most importantly, his consistent efforts to bring the nation more in line with the heady principles and ideals set out in the Constitution. The sincerity with which he extolled these convictions, combined with his bonhomie, earned the respect of his brethren. The chief justice “didn’t lead by his intellect,” noted Justice Potter Stewart, a conservative member of the Warren Court. “But he was an instinctive leader whom you respected and for whom you had affection.” 

It was this legacy that earned Warren the honor of being the first justice to lie in repose in the Court.

An obituary in Time encapsulated the widely held view of Warren’s historic importance: “during his 16 historic years as head of the Supreme Court … he had joined the small company of men who wrought fundamental changes in U.S. society. He had more impact on his time — and on the future — than many Presidents.” His rulings, Time concluded, “survive, and so will Earl Warren’s place in U.S. history.”

Outside of his well-known role in Brown v. Board of Education, however, little of this prediction rings true today. If anything, Warren is more likely to be remembered for fashioning the Miranda warnings or heading the Warren Commission than for the judicial revolution he directed as chief justice. 

Despite this oversight, Warren’s lesser-known accomplishments deserve a place in collective memory because of how he shaped our world. A direct line connects the landmark rulings of the Warren Court — many of which have now been forgotten — to today’s hot-button issues like gerrymandering, abortion, gay marriage, civil and voting rights, states’ rights, religious liberty, criminal justice, and free speech. But his influence stretches beyond the specific areas of American life he helped fashion. The sweeping changes he oversaw gave birth to the very notion of an activist Court — one that conservatives have emulated in the years since Warren’s retirement, albeit to undo his achievements and forge a counter-revolution of their own. For better and worse, Warren casts a large shadow over the raging debate over the Court’s current role and legitimacy. 

While Joseph McCarthy had been discredited by 1954, it was the Court that officially put an end to the excesses of McCarthyism in a series of cases known as “Red Monday.” These now obscure rulings from 1957 curbed congressional and prosecutorial abuses, reined in blacklists and loyalty oaths, and limited the scope of the statutes used to pursue government targets. Without the Court’s intervention, these practices could have persisted throughout the Cold War and provided a legal framework for the government harassment of other “un-American” targets, including campus radicals, anti-war demonstrators, and Black militants, on a far larger scale.

In the 1960s, the Court’s abolishment of school prayer — a widespread practice dating back to the colonial era — brought the nation closer to the separation of church and state espoused in the Constitution. Warren’s criminal justice rulings took away some of the power law enforcement officials held over defendants. Various First Amendment cases granted activists and the press vast protections and sheltered artists from Victorian-era censors. Expansion of the right to privacy paved the way for Roe v. Wade four years after Warren left office. 

These decisions triggered a massive and unprecedented backlash. The “Red Monday” rulings prompted more than 70 bills in 1958 aimed at limiting the terms of justices, granting the Senate powers to overrule the judicial body, and requiring new justices to have prior judicial experience. (Warren had arrived on the Court without having served as a judge.) Passed overwhelmingly by a Democrat-controlled House, two of the strongest proposals, which sought to limit the Court’s oversight over the other branches and narrow its jurisdiction, died in a closely divided Senate, with one measure falling one vote shy of passage thanks to Lyndon Johnson’s legerdemain as majority leader.

Warren considered Baker v. Carr and its related cases, which established the one-person, one-vote principle, as the most important work of his tenure as chief justice. By invalidating nearly every legislative district in America, the Warren Court radically reshaped the electoral system starting in 1962, making it far more equitable, democratic, and representative of the public’s will. Before Baker, 38 people in one Vermont town had equal representation in the state legislature as Burlington’s 33,000 residents, to name one example. With a population of 6,038,771, Los Angeles County counted the same number of state senators as another district with 14,294 residents. Legislative districts ranged from 13,050 to 556,326 in Georgia; 915 to 93,460 in Idaho; and 3,868 to 331,755 in Arizona. Michigan’s congressional districts ranged from 177,431 to 802,994. 

Warren’s willingness to rectify malapportionment came as a shock to the thousands of legislators who had exploited this corrupt system, especially as the Supreme Court prior to Warren’s arrival had declined to weigh in on the issue. And unlike previous reform movements, such as women’s suffrage, Baker didn’t emerge from a long-running, multi-state crusade or the passage of a constitutional amendment, which would have required the support of two-thirds of each house of Congress and three-quarters of the states. Instead, a handful of justices instituted wholesale reform on a national scale. “In an instant,” the National Review complained, “the law of the land was overturned; right became wrong, and wrong right.” Appalled by their sudden loss of power, legislators from sparsely populated, over-represented districts voted in favor of three constitutional amendments that would re-establish their authority and neuter the justices through the formation of a “Court of the Union” positioned to supersede the Supreme Court. 

When these measures stalled in 1963, Republican Senate Minority Leader Everett Dirksen took up the fight by sponsoring a constitutional amendment to overrule the one-person, one-vote principle. His crusade carried a sizeable majority but fell short of the two-thirds required in the Senate to pass the amendment on two separate occasions. Dirksen then turned to Whitaker & Baxter, a pioneering lobbying shop, to recruit dozens of large corporations that had bemoaned their loss of influence among state governments as a result of Baker: the implementation of equal-sized districts shifted power from rural to metropolitan areas dominated by labor unions, particularly in the populated states in the Northeast and Midwest. When Dirksen lost again, this time just seven votes shy of the two-thirds threshold, he pressed for a constitutional convention — something not undertaken since 1787. Within months, 33 states joined his insurgency, just one short of the number needed to call a new convention.

Dirksen also spent much of the decade trying to override the Court’s 1962 ban on school prayer, which turned out to be the Warren Court’s most unpopular decision. A Gallup Poll in the wake of the ruling revealed that 79% of Americans approved of Bible-reading and prayer in public schools. Catholic and Evangelical leaders, many public officials including former President Dwight Eisenhower, and newspaper editorials rebuked the Court for what one Methodist bishop compared to “taking a star or stripe off the flag.” Once again, Dirksen corralled a strong majority in the Senate but couldn’t overcome the threshold needed for a constitutional amendment.

Despite the wrath directed at the Warren Court for these decisions, none of them were more politicized than its rulings in criminal justice cases. As crime rates skyrocketed, critics accused Warren of coddling criminals and allowing them to evade justice through “technicalities.” Truman Capote was among those voices, telling a congressional committee that the killers profiled in In Cold Blood “would not even have been brought to trial, much less convicted” had the new reforms been in place.

Fury over specific rulings metastasized into a broader contempt for the Warren Court. Two men burned a pair of crosses on the grounds of Warren’s apartment complex in 1956, and hate mail poured into the judicial body. One letter typified the intensity of this hatred: “Greetings on your 75th anniversary!” it began. “We hope to read your obituary … before you reach your 76th birthday.” The John Birch Society’s campaign against Warren gave voice to this enmity. The way “to make the Justices … behave,” its leader Robert Welch Jr. wrote in 1965, “is to impeach the ringleader.” Though it never gained traction, Welch’s “Impeach Earl Warren” campaign fueled the far-right group’s popularity.

Barry Goldwater became the first politician to harness this animosity on a national scale. Accusing the Court of “abuses of power” and castigating its “jackassian” rulings, he positioned the Court at the center of his 1964 campaign — something no other major candidate in the past century, including FDR, had done in a presidential election. The endless stream of Court-bashing leading up to the election made it appear, Anthony Lewis of the New York Times observed, that Goldwater was “running against the nine justices instead of Lyndon B. Johnson.” Riding this wave of antipathy, Richard Nixon also placed his animus for the Warren Court at the forefront of his 1968 presidential campaign, promising to appoint “strict constructionists” to undo Warren’s rulings.

Whereas Nixon resorted to coded messages, George Wallace, the segregationist populist from Alabama, was far more direct. “The Supreme Court is fixing it so you can’t do anything about people who set cities on fire,” he said during his 1968 presidential run. To cheering supporters, he frequently condemned the justices for giving succor to “convicted criminals, Communists, atheists, and clients of vociferous left-wing minority groups.”

Even in the arena of civil rights, which he’s largely remembered for today, Warren’s importance has been undervalued by later generations. The Warren Court sided with civil rights advocates at nearly every stage of their struggle — not just in Brown. During the Montgomery bus boycott, Martin Luther King Jr. relied on the Court’s standing to assert the righteousness of his cause: “If we are wrong,” he declared to an audience, “the Supreme Court of this nation is wrong.” 

The Warren Court validated the sit-ins, marches, freedom rides, and other forms of protest employed throughout the South, shielded the NAACP from intimidation, struck down laws outlawing interracial marriage and other discriminatory acts, and safeguarded the civil rights legislation of the 1960s from constitutional challenges. “There aren’t many people today who can recall the name of this case,” John Lewis wrote decades after Boynton, the 1960 case integrating public transportation that was a bedrock for the Freedom Riders. “But for us in the movement at that time … this ruling would become earthshakingly important.”

So why has so much of Warren’s legacy gone overlooked? 

The Balkanized scholarship of the 1960s contributed to this dynamic. The legal scholars examining Warren’s judicial record rarely integrated the Court into larger works of history meant for general-interest readers. Lucas Powe Jr., a leading constitutional law professor, is among the small group of scholars who tried to buck this trend. In 2000, he explained that “over time the Supreme Court was largely abandoned to the hands of law professors. Given the training and socialization of law schools,” he added, “that meant that political events were given a minimal role in explaining judicial outcomes and behavior.” Acknowledging the vast amount of scholarship on the Warren Court, Powe bemoaned that “no one has tried to synthesize the information into a general history.” Little has changed in the past quarter century.

The flip side of this compartmentalization was that many of the historians and journalists outside of legal academia bypassed the judicial body in their work. The difficulty of connecting an independently operating and largely isolated institution to broader political movements and cultural currents contributed to this phenomenon. But it’s just as likely that these chroniclers found other notable figures far more captivating than the chief justice. Warren was an affable but dry figure who functioned through legalistic opinions instead of speeches, marches, filibusters, riots, assassinations, and other dramatic acts. He couldn’t draw the fascination inspired by the presidents, civil rights leaders, feminists, student activists, anti-war protestors, musicians, or counterculture icons whose grip over the popular imagination resonates to this day — not to mention the intoxicating allure of villains like McCarthy.

Regardless of the underlying causes, resuscitating Warren’s reputation as one of the nation’s historic figures is long overdue. He was a central figure in the reshaping of America’s current ideological, political, and cultural landscape, as well as the outsized role of the Court in modern politics. Perhaps no statement is more telling of Warren’s influence than what must have been a grudging encomium issued by Richard Nixon, whose animosity for the chief justice went back decades. Warren’s service to America, Nixon stated upon his rival’s death, “will continue to shape the course of American life for generations to come.”