Tribute to Chief Justice Earl Warren

William J. Brennan, Jr.

Editor's Note: Associate Justice Brennan delivered this speech at the Fairmont Hotel in San Francisco on April 8, 1989, as part of the "Earl Warren--A Remembrance" tribute marking the twentieth anniversary of Chief Justice Warren's retirement from the Bench.

It was my great honor to serve with Earl Warren on the Supreme Court for thirteen of the sixteen years he presided as Chief Justice and I take deep pride that this distinguished assembly is today honoring the memory of one of the great figures of American history. The judicial record that richly earned him that distinction is known throughout the world. Those decisions are a permanent monument to the great skills of leadership, energy, humanity and quiet wisdom he brought to his great office. I leave to others the discussion of that peerless record and limit these brief comments to some vignettes from my memory of him as Chief Justice and cherished friend.

Earl Warren was physically a large man, naturally gregarious and open, with a warm and engaging smile. It was impossible to dislike him. He liked people and people liked him. He was instinctively courteous and sensitive to the feelings of others. He put strangers at their ease immediately. However great their judicial differences with him, his brethren (16 Associate Justices during his tenure), without exception, personally were very fond of him.

It is the fashion to refer to the Supreme Court during his years as the "Warren Court." That does not, of course, signify that he dominated the shaping of the Court's decisions. Whatever the case of John Marshall, Earl Warren would be the first emphatically to say that this was not true of him. Functioning in the nation's fledgling years, Marshall's Court perforce fashioned the principles that ruled the great constitutional decisions of that time. In contrast, most of the notable decisions of the Warren Court adopted or expanded upon constitutional views espoused--often in dissent--in cases decided before Earl Warren was appointed Chief Justice. For his brethren, however, the "Warren Court" is highly appropriate as recognition of his effective leadership in a time that brought to the Court the greatest diversity of deeply troublesome and controversial questions in the Court's history.

He directed our weekly Court conferences superbly. He spent many hours in preparation for them, usually in bed in the early hours of the morning. The agenda of cases seeking review lengthened as the years went on, but he never failed to have a complete grasp of the issues involved in each case and to state those issues lucidly and concisely for the benefit of his brethren. He encouraged the fullest discussion of each case, but had an enviable knack for ending aimless discussion.

The unique difficulty of Supreme Court decision-making tends to develop close professional and personal relations among the Justices. There is the remote chance, however, that widely disparate judicial views–sometimes heatedly espoused and bitterly fought--can spill over into personal differences. Earl Warren's example of utmost sensitivity to the airing of differing views, and his innate courtesy toward his brethren, set the pattern that usually kept the most heated discussions within limits of decorum and personal consideration. But he was human and on rare occasions (not more than twice, as I recall) his usually tightly controlled temper flared when he took offense at something said and he errupted with harsh words.

That happened, too, from the Bench when an oral announcement of Justice Frankfurter expanded on the Justice's written filed opinion. This was the announcement of Justice Frankfurter's dissent, which I joined, in Caratativo v. California. The Court, without opinion but after argument, summarily affirmed the judgment of the California Supreme Court denying review of a prison warden's determination that a criminal condemned to death was not insane and could be executed. Justice Frankfurter's oral announcement went beyond the dissenting opinion to say things about California's penal system that struck a sensitive nerve in the Chief Justice. That system, largely his handiwork as Governor of California, was his great pride. He took the unusual step, almost as personal privilege, of answering Justice Frankfurter's oral announcement in words that scarcely obscured his resentment, and detailed at length the history and virtues of California's progressive penal system.

He had granite integrity. He also had a deep-seated sense of fairness that conditioned both his approach to decisions and his relations with his brethren, indeed conditioned his entire life. He bent over backwards in assigning opinions to assure that each Justice, including himself, wrote approximately the same number of Court opinions and received a fair share of the more desirable ones. When President Johnson insisted, over his strenuous objection, that he chair the Warren Commission that investigated the assassination of President Kennedy, he adamantly rejected his brethren's plea that they be allowed to relieve him of the burden of opinion writing until the Commission work was completed. Throughout that Term he spent early morning and late evening hours at Commission headquarters opposite the Court and carried a full burden of Court work during the day.

His concern for his colleagues was manifested even in trivial matters. He carried the principle that He was only primus inter pares to the extreme length of vigorously opposing the increase from $500 to $2500 of the differential between his salary and the salary of an Associate Justice. He was even embarassed that only he among the Justices was provided with a government automobile. He was always genuinely concerned with the well-being of his colleagues and their families.

His concern with fairness was also the hallmark of his jurisprudence. People were his concern, especially ordinary people--the disadvantaged, the down-trodden, the poor, the friendless. The memory of his own uphill struggle from the poverty of his youth never left him, nor the lesson that discrimination against the disadvantaged breeds poverty degrading to human dignity. He strongly believed that individual human dignity was the primary value fostered and protected by the Constitution. It outraged him that a state court enforced a restrictive covenant that limited burial privileges to "members of the Caucasion race," resulting in the denial to a widow of the right to bury her husband, a Winnebago Indian, even after services had been conducted at the grave site and the burial party had disbanded. Similarly, he fought for the summary reversal of a state criminal contempt conviction of a black woman who refused to answer questions from the witness stand until counsel stopped addressing her by her first name, "Mary," and addressed her as "Miss Hamilton." Approval by the states in both cases, in his strong view, demeaned human dignity and was therefore unconstitutional state action.

This thread of concern for human dignity also runs through more famous decisions. He wrote Miranda v. Arizona as a step toward enforcing a constitutional framework of criminal justice consistent with human dignity and democratic equality by mandating enlightened and civilized treatment by law enforcement officers of criminal suspects. He wrote Brown v. Board of Education that held that segregated education threatened impairment of the human dignity of black school children and was therefore unconstitutional: "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in a way unlikely ever to be undone." In the voting cases, often said by him to be the most important of his tenure, he saw disenfranchisement of minorities and malapportionment as twin evils denying their victims a fair and equal opportunity to enjoy democratic equality and full human dignity. Possessed of an equal right to vote, the least of us, he thought, would be armed with an effective weapon needed to achieve a fair share of the benefits of our free society. In sum, he perceived that at the core of the process of government erected by the framers--unwieldy, imperfect, wearisome, sometimes maddening--lay a profound vision of justice, and that it was the duty of the Court to make that vision a reality for the least of men. He expressed his vision after his retirement in these words:

Where there is injustice, we should correct it; where there is poverty, we should eliminate it, where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasure.

His love of sports was another very human trait. He was an ardent hunter and fisherman; indeed, his brethren's parting gift to him upon his retirement was a specially made shotgun in which he took great pride, and with which he last hunted in California only a few months before his death. He rarely missed a football game of the Washington Redskins (I went to many with him) and managed every fall to attend a World Series baseball game if the Series involved a city not too far from Washington. He was the perfect companion on an outing, kindly, pleasant, well-balanced, and amazingly well-informed.

None of us believed that he would slow down when he retired and he did not. He retained chambers at the Court primarily to do some writing. He wrote one book and began the writing of others, but was soon unable to resist the lure of the immense number of invitations which deluged him from campuses all over the country. He began extensive travels to colleges and universities throughout the country. He usually made no formal or prepared speech but engaged in informal question and answer sessions at which students could ask and receive an answer to virtually any question. The experience gave him a tremendous lift; his eyes would shine as he expressed enthusiastically his belief that the future of the country was safe in the hands of the coming generation.

I last saw him only two hours before his death. He wouldn't talk with me about his health. He wanted an update on the status of the proposal to create a National Court of Appeals. He strongly opposed the proposal. Its adoption, he was convinced, threatened to shut the door of the Supreme Court to the poor, the friendless, the little man. To many of his colleagues, certainly to me, he was the Super Chief. History will surely accord him a first place in the pantheon of our greatest judges and greatest Americans. My deep pride in my association with him is exceeded only by my great affection for him as a friend.