Chief Justice Earl Warren (1891-1974) – Guest Essayist: Daniel Cotter

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Earl Warren: The Governor from California Becomes The 14th Chief Justice

Nine chief justices and nearly 120 years separate John Marshall from Earl Warren.  While each chief has influenced the Supreme Court and helped to shape its history, Warren and Marshall are often mentioned together as the greatest of the 17 chiefs.  This column explores Earl Warren’s career and his Supreme Court tenure and legacy.

Early Years

Warren was born in Los Angeles, California, to Mathias H. Warren, a Norwegian immigrant, and Crystal (nee Hernlund).  Mathias worked at the Southern Pacific Railroad for many years, until he was fired for participating in a strike.  Mathias moved the family to Bakersfield, California, where Earl grew up and attended the local public grade school and high school.  Warren graduated from the University of California, Berkeley in 1912 with a B.A. in political science, and then entered the Berkeley School of Law, where he graduated in 1914.   Warren admittedly was a mediocre student. 

Upon admission to the California bar, Warren joined the Associated Oil Company for a year, then went into private practice at the Oakland firm of Robinson & Robinson.  In August 1917, at the height of World War I, he joined the United States Army, where he became a Lieutenant.  After his discharge in 1918 and up until his retirement from the Supreme Court in 1969, Warren devoted his career to government service.
For one year, Warren served as a clerk of the Judicial Committee of the California State Assembly, then became Deputy City Attorney for Oakland, California.  He was subsequently appointed as the Deputy District Attorney for Alameda County, CA, eventually becoming the District Attorney in 1925. Warren was re-elected to three four-year terms. 

In 1938, Warren was elected Attorney General of California and held that position for one term.  While Attorney General, he was supportive of the internment of California residents of Japanese descent and issued the orders implementing the practice.  Warren and California acted on reports from the military of the threats Japanese purportedly posed to U.S. security.  Colorado Governor Ralph Carr was the only governor to refuse such action and it cost him his position. Warren said in his 1977 memoirs that he “deeply regretted” his actions.

In 1942, Warren successfully ran for Governor of California.  The state’s voters loved him; Warren is the only governor in California’s history to be elected to three consecutive terms.  His 1946 election was remarkable in that the Republican governor was nominated to run on all three tickets:  Republican, Democratic and Progressive.

In 1948, Warren made his debut on the national stage when he was nominated for Vice President of the United States as running mate for Presidential nominee Thomas Dewey.  Dewey’s loss to President Truman was the only electoral defeat in Warren’s career.  In 1952, he expected to be nominated as the Republican candidate for President.  However, on the train ride to the Republican National Convention in Chicago, Warren learned of backroom dealings by California Senator Richard Nixon, who changed his support from Warren to Dwight D. Eisenhower. 

Historians assert that when Eisenhower won, Warren made a deal with Eisenhower to be appointed to the Supreme Court when the next vacancy occurred.  When Chief Justice Vinson died, Warren reminded the President of their deal. Ike balked at first, arguing the deal was for an Associate Justice opening, but Warren would not accept that argument.  Warren began serving on September 30, 1953 as a recess appointment; the Senate confirmed the appointment by voice vote on March 1, 1954.

Chief Justice

The first case Warren heard as Chief was Brown v. Board of Education, which had been argued to the Court earlier in 1953, but the justices asked for a rehearing to address specific questions.  The Court was divided over the case, and Associate Justice Felix Frankfurter used the rehearing to buy the Court time.  In the interim, Vinson died and Warren replaced him.  After the rehearing, Warren, who had supported the integration of Mexican-American students into California schools while governor, masterfully worked the justices in conference and throughout the process of the Court arriving at its decision.  At early conference meetings, he held off a “straw poll” vote of the justices while arguing that racial segregation violated the United States Constitution.  Eventually, he convinced all justices to join the opinion, with Stanley Reed from Kentucky being the final justice to join.  In the famous unanimous decision, Warren wrote:

We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Brown v. Board of Ed. of Topeka, 347 U.S. 483, 495 (1954).

Although Warren was not considered a legal “scholar” in the mold of justices such as Frankfurter, he was a skilled coalition builder who found ways for the justices to reach common ground.  The Warren Court tackled a host of watershed cases, dealing with racial equality and discrimination, voting rights, criminal procedure and other vital issues.  Underlying many of the Warren Court’s notable decisions is the principle that rights established by the Constitution generally apply to the states and their residents.  Among these rulings were:

  • Brown v. Board of Ed. of Topeka;
  • Loving v. Virginia(1967), striking down prohibitions on interracial marriage;
  • Baker v. Carr (1962), holding that legislative apportionment (“one man, one vote”) was a justiciable issue as opposed to a political question, allowing federal courts to adjudicate redistricting disputes;
  • Miranda v. Arizona (1966), requiring that individuals interrogated by police be notified of their right to counsel and protection against self-incrimination under the Fifth Amendment; and,
  • Gideon v. Wainwright (1963), holding that the Sixth Amendment right to counsel in criminal cases extends to defendants in state courts

The Brown decision and some of the criminal rights cases led to the appearance of “Impeach Warren” billboards in Southern states and to Warren being burned in effigy by protesters.

Conclusion

The Warren Court was a very active court and set new courses in many areas.  Warren’s sixteen years on the Court and the landmark decisions during his tenure put him at the top of the Chief Justices’ list, right after Marshall.  According to www.historynet.com, Earl Warren is one of the nine greatest justices who have served on the Supreme Court; the site groups Warren with Chief Justices Charles Evans Hughes and John Marshall as the “Three Game Changers.” It is hard to argue with that categorization.        

Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for the essay.

    1. I noticed it took 5 months for the Senate to confirm Warren’s appointment. Perhaps our modern day wrangling and fussing over delays is over reacting to a process done well takes time.

    2. I agree that separate, but equal is not equal except to those doing the separating. And they would view it as unequal if someone was separating them.

    3. Miranda and Gideon are so en-grained now into the legal culture it is difficult to understand that it was only enacted in the 60s. Although many new laws leap frog over both rulings and presume a person guilty, ceasing property, denying due process etc. in order to protect the people for terrorism, organized crime, etc. While these are real threats, they always are real threats. So is Government over reach – hence a Bill of Rights – dah.

    PSD

    Reply

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