WHAT WOULD WARREN SAY NOW?
PETER D. EHRENHAFT
Can Brown and
Baker be reconciled?
Fifty years ago, “Impeach Earl Warren!” billboards lined roadsides throughout
the United States. The strong sentiment was prompted primarily by the landmark
decision of the Supreme Court in May 1954 in Brown v. Board of Education.
New to the Court, Earl Warren, as chief justice, had skillfully persuaded a
unanimous tribunal to hold that compulsory segregation by race of primary school
children was “inherently” a denial of their “equal protection” of the laws and,
therefore, unconstitutional. The reasoning of the Court was based less on elegant
analyses of precedents and more on sociological data and instinctive feelings
of fairness. Fairness, indeed, was the touchstone of Earl Warren’s jurisprudence.
It took the Court another year and a second decision, Brown II (1955),
to announce implementation procedures. It used the phrase “deliberate speed”
to underscore both a view that an immediate wholesale change in applicable enrollment
procedures was not envisaged, but that a constant concerted forward movement
was anticipated.
Half a century later,what has Brown wrought? Statistics lay bare the
brutal facts that a very large proportion of minority students continue to attend
schools that are de facto segregated, even if the schools are neither
compelled nor allowed to admit students of only one race. At the primary public
school level, racial segregation may be as prevalent today as it was when the
Warren Court ruled.Voluntary and court-mandated plans, from magnet schools to
busing to area-wide assigned enrollments, have been tried and found ineffective
or impractical. And the courts, from the Supreme Court down, have retreated
from “affirmative action” to a “color-blind” approach that turns a blind eye
to the unwillingness of parents to send their children to schools in which minority-race
children begin to approach a majority of the school population. Thus, Brown
and its companion case cannot be celebrated as successful transformative
decisions with regard to public primary education—what the initial case was
all about.
But recognizing the continued racial division in our public school population
does not diminish the enormous impact Brown has had on the larger American
society, particularly its role in helping to bring about an end to state-sponsored
discrimination. In contexts other than primary and secondary public education,
the rationale of Brown has been a key building block of our ever hopedfor
“more perfect Union.” Clearly, from playgrounds to boardrooms, America today
is far less segregated by color than it was 50 years ago.
BAKER V. CARR
Paradoxically, although Earl Warren is remembered best for Brown v. Board
of Education, this decision’s limited impact on public school education
may be traced, at least partially, to another pivotal decision of his tenure.
After Warren retired from the Court, he called it the most important decision
announced during his service as chief justice. That decision, Baker v. Carr
(1962), held that residents of urban areas of a state, deprived by state
law of appropriately proportional representation in their state legislature,
stated a proper federal claim to be more equitably represented. Baker soon was
followed by Reynolds v. Sims (1964), expressly announcing the “one man/one
vote” formula as the only standard for constitutionally appropriate apportionment
of representation at every level of government other than the US Senate (whose
two-senators-per-state principle is in the Constitution itself).
The Baker v. Carr “one man/one vote” principle has enhanced the voting
power of suburban residents, significantly boosting suburban interests and values
in the political life of the country. Suburbanites now outnumber urban residents
and, even more substantially, clearly outnumber the rural population. The suburban
ideal of private homes on peaceful cul-de-sacs is today’s standard image of
success in America. Although many suburbanites derive their livelihood from
nearby urban centers, the problems of those cities—particularly with respect
to education—are what the folks on the other side of the city line wish to leave
behind. Suburban communities not only conform to, they are reinforced by, political
boundaries that emphasize separation for social purposes.
This increased political clout has enabled the suburban majority to turn its
back on minority groups that were intended to benefit from the ruling in Brown
v. Board of Education. It provides constitutional cover to the avoidance
of integration of the suburbs into an electorate and tax base required and able
to deal with the problems of our multiracial society. It blesses a “Balkanization”
of voting districts, so long as each vote cast within the district has an equal
weight with all other votes cast. Moreover, to the extent that suburbanites
have the interest, time, job requirements, and incentives to go to the polls
and cast their votes, they are the most likely citizens to vote on Election
Day. Thus, it is not surprising that the causes they support become the laws
of the commonwealth. Cities, with more transient populations, including many
residents without the education or employment situations in which voting can
be pursued, and limited by sacrosanct boundaries drawn by state legislatures
controlled by the suburban majority, cannot overcome the “inherently unequal”
racial complexion of the nation’s urban primary schools.
What is to be done? Clearly both decisions were right. Are they, nevertheless,
doomed to failure? Not necessarily.
Principles of law exist, such as those that impelled a majority in Baker
v. Carr to overcome the “no win” dilemma faced by urban residents in Tennessee.
Mr. Justice Frankfurter’s dissenting valedictory opinion— the last before he
was forced to retire after a stroke— argued that only a legislature had the
democratic and moral right to fashion laws. But the Court majority saw that
rule as a principle unfairly disfranchising urban residents in a legislature
that could not, and would not, be corrected if left to its own devices. Judicial
intervention was the sole remaining remedy. In its expansive view of judicial
rights and abilities, Baker was very close to Brown. In Brown,
too, the Court considered the powerless in the political arena and intervened
to redress the imbalance. Both decisions were examples of judicial activism
at its best.
WARREN’S ROLE IN BROWN...
The consensus forged by Earl Warren in Brown v. Board of Education is
all the more remarkable, as Warren stepped into the contentious case mid-stream.
When the Supreme Court began to hear oral arguments in the Brown case
in 1952, Earl Warren was not even on the Court, but was serving as governor
of California. Chief Justice Fred Vinson, unable to gather the consensus necessary
to deal with the politically explosive nature of the Brown case, requested
a reargument the following year. But Vinson suffered a fatal heart attack before
the case could be reheard, and President Eisenhower delivered on a promise made
earlier, when Ike sought to persuade Warren to withdraw from the race for the
1952 Republican presidential nomination. Thus Ike went on to win the presidential
election, and appointed Warren to the first open seat on the Supreme Court.Warren
was named chief justice in December 1953.
Shortly after his appointment to the Court, Warren presided over the Brown
reargument, and in May 1954 announced the Court’s unanimous decision. Unanimity
was a feat achieved through all the political and personal skills for which
he is remembered. The short and plainly worded opinion has been criticized for
its reliance on non-legal evidence, the short shrift given to the historic federal
structure of our government, and the reversal of the Court’s post-New Deal tendency
to defer to the policy choices of legislatures on complex economic and social
issues. But it also had an undeniable majesty of justice, equality, and fairness.
Brown was a seminal decision, all the more so because it was announced
by a unanimous Court, a united voice forged by Warren himself. It would have
been difficult for any Supreme Court justice to have done more. But court decisions
are not self-enforcing. Warren had to depend on the other branches of government
to act to turn a court mandate into public action. The government already had
taken a stance against many forms of racism. World War II had been fought and
won against governments that had espoused and demonstrated the evils of racist
ideology. President Truman, as commander in chief, issued an executive order
in 1948 to end segregation in the US armed forces.And the courts had begun to
intervene to curb state-sponsored or state-supported race-based disadvantages,
including the invalidation of court-enforceable restrictive covenants on the
sale of private residential property and exclusion of minority students from
state-financed institutions of higher learning.
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Earl Warren (1891-1974) was born in Los Angeles. His father, a Norwegian immigrant, worked for the Southern Pacific Railroad.Warren put himself through college, receiving his law degree from the University of California at Berkeley in 1914. After 12 years as a public defender, he turned to politics, and was the only California governor elected to serve three successive terms. In 1948,Warren ran for Vice President of the United States. In part because Tom Dewey ignored his running mate, the Dewey/Warren ticket narrowly lost to Harry Truman and Alben Barkley.
In the 15 years, 8 months, 18 days he served as the fourteenth chief justice of the United States, Earl Warren was best known for his unswavering devotion to “fairness” in justice.
Photo by Peter D. Ehrenhaft |
But it took another decade, and President Johnson, to provide federal support
for the implementation of Brown. President Eisenhower, a native of Kansas,
the state from which the Brown case stemmed, reportedly confided to friends
that he thought his selection of Warren as chief justice was the “biggest damn
fool thing I ever did.” Congressmen from the South, in particular, and state
governments throughout the former Confederacy rushed to devise all manner of
schemes to prevent implementation of the Court’s mandate. It took the violence
of Little Rock in 1958 to spur the federal government to take visible action
to support the Court’s judgment in the context of public school enrollment.
And the lower courts found numerous ways to delay and deter the “speed”—or even
the “deliberate”—progress of plans to implement Brown. And, finally,
when the Nixon appointees to the Court became the majority, the creative efforts
to fashion workable solutions faltered and eventually ended.
...AND HIS ROLE IN BAKER
In Baker v. Carr, the Court was faced with a claim of city residents
that the Constitution and laws of the State of Tennessee unfairly denied them
appropriate representation in the state legislature. Rural interests were disproportionally
favored, and for 60 years no reapportionment of seats had occurred. Some residents
of Nashville finally turned to the federal courts to complain.
Americans are known for their willingness to seek redress in the courts, but
American courts also have fashioned important limitations on their own power
to act. The District Court in which Mr. Baker and his colleagues filed suit
dismissed their case because it raised what the court found was a non-justiciable
“political question.” The Supreme Court responded in 1962 by noting “Of course,
the mere fact that the suit seeks protection of a political right does not mean
it presents a political question.” A majority of six justices supported that
view and ordered the lower court to hear the suit on its merits. Only Justices
Frankfurter and Harlan dissented. (Justice Whittaker had resigned by then and
did not take part in the decision)
Although a unanimous Court could have been as important in the case as it had
been in Brown, that goal proved impossible. Chief Justice Warren tried
to achieve the same show of universal agreement, but ultimately decided that
the more legalistic approach of Justice Brennan was needed to articulate views
sufficient to counteract the lengthy and passionate dissent Justice Frankfurter
devoted most of the term to writing.
Baker, itself, only opened the courthouse door; it did not decide the
merits of the case the plaintiffs had brought. But two years later,Warren was
able to write in Reynolds v. Sims that “Legislatures represent people,
not trees or acres.” Neither farms nor cities have a right to representation;
only citizens have such rights. Therefore, state legislatures (and ultimately
all branches of subfederal government, including city councils or school boards)
could avoid claims of a denial of “equal protection” of the law only if they
scrupulously adhered to a “one man/one vote” principle. Warren truly believed
that this was a bedrock principle of any democratic government, even if the
Constitution of the United States, with its two-senators-per-state provision,
undeniably disadvantaged the residents of his home state of California or other
populous states.
WHAT WOULD WARREN SAY NOW?
Earl Warren was an optimist. He firmly believed in the ability of the American
people to right wrongs, achieve a just society, and provide opportunity to all.He
had risen from modest family beginnings to the heights of the nation’s judiciary.
Even if primary and secondary education for minority groups had made slow progress
in the 50 years since Brown was announced, he would try to convince (not
coerce) those living in the suburbs voluntarily to set aside their court-guaranteed
separation from the problems of their nearby urban neighbors. But he regarded
“one man/one vote” as no less important than equal educational opportunity.
He certainly would speak out against the views of some of his Republican Party
colleagues, both on the Supreme Court and elsewhere, who claim an incapacity
to define “fairness.” To Warren, law made no sense if it was not “fair.”He would
disassociate himself from those who claim that efforts to assist the previously
disadvantaged demean those who receive such aid.
Earl Warren might take some comfort in the Supreme Court’s 2003 decision in
Grutter v. Bollinger, in which, by a 5-4 majority, the current Court
upheld the University of Michigan’s “affirmative action” program to promote
“diversity” in the classroom of a state- financed college undergraduate institution.
If Brown held there are some discriminations that all public institutions
of learning may not adopt, Grutter held that there were some “benign”
discriminations that at least some institutions of higher learning may use.
But neither decision commands a particular program to overcome what the Warren
Court identified as the “inherently inferior” schooling for disadvantaged children
of our public primary schools. That conclusion recognizes the inescapable fact
that the judgments of courts, by themselves, are incapable of bridging what
Goodwin Liu, a professor at the University of California at Berkeley’s Boalt
Hall School of Law, terms “the gap between ideals and reality.”
As one of Earl Warren’s law clerks—in the very term in which Baker v. Carr
was decided—I feel confident in saying that The Chief would not have changed
a word in the Court’s opinion in either case. But Warren no doubt would argue
that the “American way of life” in the 21st century cannot be limited to families
living in privately owned homes in homogeneous neighborhoods in terms of income,
interests, and race. If there is a single defining “problem” in the city that
large numbers of suburban residents have sought to avoid, it is clearly the
quality and racial composition of the city’s public primary and secondary schools.
Efforts in St. Louis and Toronto to build a “metropolitan” approach to schools
may serve as a more inclusive model, especially if the courts adopt a more proactive
role in resolving the problems of de facto school segregation. And new federal
initiatives aimed at improving education for all children, including the No
Child Left Behind Act, may help urban public schools once classified as “failing”
to attract students from all socioeconomic and racial groups (see
page 49).
As Warren pointed out in his 1972 A Republic, If You Can Keep It, the
disparate branches of government must work as a single organism.Within their
constitutionally prescribed limits, they must cooperate if the nation is to
succeed in securing to all of its citizens the visions and promises in our founding
Declaration of Independence asserting that “all men are created equal and endowed
by their Creator with certain inalienable rights,” including, above all, due
process and equal protection of the law.
Additional Resources:
Gray, Ed. Chief Justice: A Biography of Earl Warren New York, NY: Simon & Schuster, 1997.
Liu, Goodwin. “From Brown to Grutter and Beyond,” Boalt
Hall Transcript (Spring/Summer 2004).
Schwartz, Bernard. Super Chief Earl
Warren and His Supreme Court. New York, NY: New York University Press, 1983
Peter D. Ehrenhaft (CC ’77) is of counsel to the Washington, DC, law firm of
Miller & Chevalier, where he focuses on transnational transactions. He served
as senior law clerk to Chief Justice Warren in the 1961 term when Baker v. Carr was decided.
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