WARREN: OUT OF THE STORM CENTER

AMERICANS, enthralled by the personality of their chief executive and the power of his office, tend to talk about their political history in terms of presidential administrations. Yet last week, when it was learned that Earl Warren, the 14th Chief Justice of the United States, would soon retire from the Supreme Court, it was clear that another branch of government can define a historic period just as sharply--if not more so. For the past 15 years, the extraordinary "Warren court," spanning all but a few months of the terms of three Presidents, has had no less an impact on American life than the Eisenhower, Kennedy and Johnson administrations combined.

Under Warren, the court has addressed itself principally to three great areas: civil rights, reapportionment under the one-man, one-vote doctrine, and criminal justice. As earlier courts have been dominated by such concerns as property rights, the building of the central government and slavery, Warren's court confronted, in an unusual number of cases, one overriding problem--the rights of the individual. In so doing, the court guaranteed that it would spark controversy. As Oliver Wendell Holmes said of the court in one of his celebrated remarks: "We are very quiet there, but it is the quiet of the storm center."

Activist Tradition. There is no compulsory retirement for a Supreme Court Justice, and Warren, at 77, could have remained active as long as health and spirit lasted. Mr. Justice Holmes was writing lucid decisions in his 90s; Justice Hugo Black shows few signs of faltering at 82. Warren apparently wanted to retire while his physical and mental abilities were still keen. Moreover, he was eager to enable President Johnson, a personal friend, to name a new Chief Justice who would follow in the liberal, activist tradition.

The Chief Justice was also worried, according to friends, that Richard Nixon, a man he heartily dislikes, would be elected President in November and fill the spot with a conservative.* Several Republican Senators, similarly convinced that Nixon would win in the fall, insisted that Johnson permit the next President to pick his own Chief Justice. But Johnson has tradition firmly on his side--John Adams appointed John Marshall Chief Justice a month before leaving office--and he will almost certainly ignore their demand. Immediate speculation as to his choice centered on two Associate Justices: Abe Fortas, Johnson's close friend and his first appointee to the court, and William Brennan Jr., who shares Warren's philosophy on most issues.

Productive & Exciting. Last week, however, most eyes focused on the court that has been rather than the one that will be. By any accounting, the Warren court has been the most influential since the Marshall court (1801-35) established the judiciary as the true third branch of the federal system and, with its decisions, laid the legal groundwork for a strong central government in the U.S. Yet, as Fred Rodell, the Yale Law School's Supreme Court specialist, points out, "John Marshall had 34 years to do what he did. Warren did his fantastic work in only 15. The Warren years have been the most productive and exciting the court has ever had."

In Warren's first session, the court outlawed school segregation (Brown v. Board of Education, 1954), setting in motion the fight for Negro rights that has dominated and rent the nation ever since. "To separate [children] from others of similar age and qualifications solely because of their race," the new Chief Justice wrote in a unanimous decision, "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

In the mid-'50s, the court reined in the congressional Communist-hunters, who had in their search for subversives ridden roughshod over the due-process guarantees of the Bill of Rights. In the early '60s, it enforced the separation of church and state by ending prescribed prayers in public schools, and limited the powers of government to censor books and movies, expanding the First Amendment guarantee of free speech.

In a series of decisions beginning in 1962 (Baker v. Carr), the court decreed that legislative bodies, from the House of Representatives to town councils, must be apportioned by population rather than geography or other factors favoring one man over another. The Justices sought to end rural political predominance in an urban nation. "Legislators represent people, not trees or acres," Warren wrote in Reynolds v. Sims (1964). "Legislators are elected by voters, not farms or cities or economic interests. The right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. To the extent that a citizen's right to vote is debased, he is that much less a citizen. A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm."

Black Monday. Starting in the mid-'50s and continuing to the present, the court moved to guarantee the rights of persons accused of crimes and to require the police to pay greater heed to those rights in dealing with suspects. Last week, in the Chief Justice's final session on the bench, the court returned to where it started in 1954 by ruling that, under an 1866 law, a Negro has the same right as any white to buy or rent a house (see THE LAW).

All through the Warren years, the criticism of the court rarely ceased. White Southerners dubbed May 17, 1954--the day that Brown v. Board of Education was announced--"Black Monday." The title was subsequently applied to many another Monday, the traditional day for issuing decisions, as the court bit by bit chipped away the legal basis of white supremacy. When the court later handed down its prayer decisions, Alabama's Representative George Andrews cried: "They put the Negroes in the schools, and now they've driven God out." At one point, 36 chief judges of the state supreme courts signed a resolution deploring what they considered the U.S. Supreme Court's disregard of states' rights, and Senate Minority Leader Everett Dirksen nearly succeeded in getting Congress to adopt amendments that would have overturned the prayer and apportionment decisions.

Throughout, Earl Warren was both symbol and target. Bumper stickers reading IMPEACH EARL WARREN--or in California, FLUORIDATE EARL WARREN --festooned countless autos, and the Chief Justice was long No. 1 on the far right's hate list. In 1954, Mississippi's Senator James Eastland denounced Warren's court as "the greatest single threat to our Constitution"; last week George Wallace declared that "he's done more to destroy constitutional government in this country than any one man." Even Dwight Eisenhower, who thought of Warren as a mildly progressive Republican when he named him Chief Justice, reportedly described the appointment years afterward as the "biggest damfool mistake I ever made." "I wasn't close to him when I appointed him," Eisenhower later declared, "didn't really know him. But I liked his family, and I'd been told he'd been a good Governor."

Even within the unemotional confines of the legal profession, the Warren court has often been attacked. Usually the line is drawn between two factions. There are those who, like the late Justices Louis Brandeis and Felix Frankfurter, believe in strict judicial restraint, holding that the court exists not to make law but to interpret it rather strictly. And there are the judicial activists, who believe that many wrongs can be righted by following the broad mandate of the Constitution. The main thrust of the Warren court, particularly since Frankfurter's retirement in 1962, has been toward activism. This view, complains Justice John Harlan, a Frankfurter man, "is that every major social ill in this country can find its cure in some constitutional 'principle' and that this court should 'take the lead' in promoting reform when other branches of government fail to act."

Lonely Dissenter. Critics also charge sloppy legal draftsmanship in many decisions that have not so much outraged as confused. The Justices, notes Yale Scholar Alexander Bickel, have yet to come up with a workable definition of obscenity. The decisions curbing police abuses have been almost as murky, says Chicago Law Professor Philip Kurland. "After Escobedo," he quips, "you need Miranda, and after Miranda, we will need maybe twelve more decisions."

Actually, the critics have not been exactly on target in attacking Warren, for the Chief Justice is only one of nine men, with only one of nine votes. "Warren should get neither the blame nor the credit," says Harry Kalven Jr., a law professor at the University of Chicago. "Both the great achievements and the non-achievements of an institution are collective." A Columbia law professor sees Warren's chief significance in his having "brought a fifth vote to positions that were dissenting positions before he came." In fact, no Chief Justice has come close to dominating the court since John Marshall, and the holder of the title can be a lonely dissenter, as Warren often was before the liberals gained a clear-cut majority in 1962.

Still, the "Warren court" is not merely a title of convenience. The 14th Chief Justice has all along given the court his own stamp and subtly molded the shape of its decisions. In choosing Justices to write the majority opinion--a power that Warren used most astutely--he could usually determine, within broad guidelines, the direction the opinion would take. By a careful selection, he could also sway a vote or two, averting a disputed 5-to-4 vote that would leave lawyers wondering whether they could, by slightly changing their argument, get a different result the next time round. Whatever his methods, Warren made the court less contentious than it was under his mediocre predecessor, Fred Vinson; 32% of the written decisions were returned unanimously during the 1966-1967 term, compared with 18% during Vinson's last (1952-53) term.

Is It Fair? Warren's forte--unlike that of Holmes, Brandeis, Frankfurter or Abe Fortas of today's court--was not legal analysis. One law professor who admires him says that "he doesn't have the intellectual qualities for the law faculty of any good law school." While other Justices never let on what they are thinking when they hear oral arguments, Warren's feelings, says Berkeley Professor David Feller, "are right there on his shirtsleeves. You can see them right through the robe." Impatient when lawyers cited obscure legal precedents to buttress their cases, the pragmatic Chief Justice would often ask simply: "Yes, but is it fair?"

Oddly enough, John Marshall, the greatest Chief Justice, was also less concerned with the narrow legalisms that make a "lawyer's lawyer" than with the broader concept of justice. Marshall is the Chief Justice most often compared to Warren, and his court the one most often likened to Warren's. "In the past," says Kurland, "the court has been a brake rather than an accelerator. This has been the first court since Marshall's to turn back to this role of an accelerator."

* Ideological convictions aside, his dislike of Nixon dates back to the 1952 G.O.P. convention, when Warren, then California's Governor, was seeking the presidential nomination and Nixon was a member of the delegation pledged to him. Nixon, then a freshman Senator, made known his preference for Eisenhower, winning for himself the vice presidential nomination--and Warren's wrath. "Nixon plays for keeps," the Chief Justice once said, "but his keeps are for himself."

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