Justice for All: Earl Warren and the Nation He Made, By Jim Newton, Riverhead Books, 614 pp., $32
As President-elect Eisenhower assembled his administration in the weeks following his election in 1952, he passed over for a Cabinet post Earl Warren, the California governor and vice presidential candidate on the ill-fated Dewey campaign four years before, but did promise him the "first vacancy" on the US Supreme Court.
Meanwhile, the Supreme Court justices had been unable to reach agreement on Brown v. Board of Education, the major civil rights case facing the highest court , and in late 1952 agreed to put it over until the 1953-54 term. But in September 1953, as the term was beginning, Fred Vinson, the genial but indecisive chief justice, died unexpectedly.
That was not the "first vacancy" Eisenhower had in mind, but Warren was determined to hold Eisenhower to his promise -- "The first vacancy," he put it, "means the first vacancy" -- calling in political chits, even going deer-hunting in an effort to avoid Eisenhower's emissary, Attorney General Herbert Brownell. But when he remained adamant, Brownell gave up and told Eisenhower, "We're stuck with him, I guess."
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 from California journalist Jim Newton.
The broad "nation he made" context is clearly drawn. The Supreme Court decisions are presented with clarity. Politics -- in California, nationally, and on the court -- are covered with the verve of a veteran reporter.
In its time, the Warren family was a Kennedy-like presence on the political scene. His wife, Nina, whom Warren initially was smitten by at a local swimming pool, and their handsome, smiling children, especially "Honey Bear," the daughter stricken with polio on the eve of Warren's 1950 gubernatorial reelection victory, were figures known to voters .
After recounting Warren's early career as a crime-hunting prosecutor, Newton notes that "[his] later insistence on police and prosecutorial regard for constitutional protections" has been seen as "inconsistent." But, he writes, "the prosecutor and the judge are connected across the decades by an unswerving self-confidence and devotion to principle, albeit a somewhat different principle."
And, Newton writes, most of those decisions of the Warren Court that shaped the nation and society -- Gideon and Miranda in the field of criminal justice, Baker v. Carr in federal-state relations, Brown in school desegregation, and Griswold in reproductive rights -- did not just happen, but were carefully nurtured and shaped by Warren.
A case in point is a lesser-known decision involving Bennie Brooks, a Florida prison inmate, convicted of participating in a prison riot. The conviction was based on Brooks's confession, obtained after two weeks in the disciplinary "hole." All the other justices had voted not to hear the case, but it "touched Warren's sense of injustice" and he wrote an angry dissent on the "shocking display of barbarism which should not escape the remedial action of this Court." One by one, the other justices came around and, in a unanimous decision, Brooks's conviction was reversed.
As Warren lay dying, in July 1974, the court was considering whether President Nixon, a fellow Californian for whom Warren had little regard, had to turn over the Watergate tapes. After the court had met, two of his closest friends, justices William O. Douglas and William Brennan, came to visit him. Warren, in Newton's account, took Douglas by the hand and told him, "If Nixon is not forced to turn over tapes of his conversation with the ring of men who were conversing on their violations of the law, then liberty will soon be dead in this nation." Brennan assured Warren that he would not be disappointed in the court's ruling.
Just hours later, Warren died. As ordered by the court, Nixon turned over the tapes and, one month after Warren's death, resigned the presidency.