Ends a Busy Term, Draws a Heavy Fire

Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem: how to apply to ever-changing conditions the never-changing principles of freedom.

--Chief justice Earl Warren in FORTUNE (1955)

Earl Warren has gained weight since he left California. His hair is whiter, softer and fluffier, and a benign fullness has smoothed from his face all the small pinches of arrogance that led California political rivals to dub him the Earl of Warren. He loves the Supreme Court, presides over its sessions, both public and private, with easy skill. The eight Associate Justices love Warren, and under his influence work together as rarely before. But by last week, when Warren and his colleagues put their robes in mothballs after one of the busiest terms in history, the U.S. Supreme Court was under its heaviest fire in a decade. The charges: that in steering the law between rigidity and formlessness, Chief Justice Earl Warren has plotted a deliberate course to the left, with far more emphasis on ever-changing conditions than on never-changing principles.

A Nagging Sense

Behind much of the criticism lies the resentment of Southern lawyers and laymen over the desegregation decision and the rulings that implemented it. But all the concern is not Southern: many thoughtful observers who are devoutly on the side of desegregation are nagged by a feeling that the decision, as written by Warren, smacked more of a sociological treatise than a legal document. They believe they see the same signs in other principal Supreme Court opinions of the last term. Items:

P:In tossing out the conviction of Pennsylvania Communist Leader Steve Nelson, the Supreme Court held that the Smith Act of 1940 pre-empted the antisedition laws passed by the states, and that that was the intent of Congress. But Virginia's Democratic Representative Howard Smith, author of the Smith Act, said flatly that Congress had no intention of writing off the state sedition laws. The Smith Act comes under Title 18 of the Criminal Code, which also provides that "nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof."

P:The Supreme Court ordered Brooklyn College to reinstate Professor Harry Slochower, who had been a prickly, evasive, smart-aleck witness as he pleaded the Fifth Amendment before the Senate Internal Security Subcommittee. The court ruling invalidated a New York City charter requirement for automatic dismissal of any city employee taking the Fifth. Justice John Marshall Harlan, dissenting, wrote that the court majority had "unduly circumscribed the power of the state to insure the qualifications of its teachers."

P:States' Righters were alarmed and angered by a Supreme Court decision holding that the Railway Labor Act overrode state right-to-work laws in the case of railroad employees.

P:A Supreme Court majority ruled that Wisconsin had a right to halt a prolonged, violence-ridden strike against the Kohler Co., a plumbing-equipment firm. But Warren, Black and Douglas dissented vigorously. Arguing that the Wisconsin fair labor statute duplicated federal law, Justice Douglas wrote that the overlapping of remedies was "pregnant with potentialities of clashes and conflicts" and that the court majority was opening the door "to unseemly conflicts between state and federal agencies."

P:A Supreme Court majority did hold that Cutter Laboratories of California had the "just cause" required by its union contract for firing a Communist woman employee. But Justice William Douglas, bitterly dissenting, argued in effect that the Communists are simply another political party and that an employee might just as well be dismissed for being a Republican. The dissent came despite the clear judgment of Congress, as expressed in specific legislation, that the Communists form a conspiracy, not a political party. And joining in the Douglas dissent were Justice Hugo Black and Chief Justice Warren.

Warren, 65, Douglas, 57, and Black, 70, are the Supreme Court's liberal leaders. On the opposite side in case after case are egg-bald Stanley Reed, 71, dour Sherman Minton, 65, and imperturbable Harold Burton, 67, the court's conservatives. The swing men are Felix Frankfurter, 73, Tom Clark, 56, and John Marshall Harlan, 57 Frankfurter, the perky sparrow, brilliant but baffling, is still disliked by many conservatives who originally fought his appointment, and is now distrusted by many liberals who feel he has betrayed them. As a general rule, he would rather decide a case on statutory law or a legal technicality than on a basic constitutional issue. Tom Clark, still trying to live down his name as Harry Truman's most patent political appointee, tends (with some notable exceptions) to follow the lead of the Chief Justice, whether it be Fred.Vinson or Vinson's successor, Earl Warren. HarIan, a "lawyer's lawyer," has broader previous experience at the bar and the bench than any of his colleagues, but he is the court's newest member and his way has not been clearly charted.

Nine Different Guys

Chief Justice Vinson, questioned about dissents in the court, once exploded; "Look, these are nine guys, all with some reputation, ability and confidence in themselves. If any Chief Justice can knock their heads together and get unanimity he's better than I am." Earl Warren, by persuasion rather than head-knocking, won unanimity in all the desegregation decisions. And it is in testament to his skill and effectiveness as Chief Justice that his will and his liberal bent have come to dominate the Supreme Court over the last year.

Warren's unfailing warmth and graciousness have captivated his colleagues "The Chief," glows Justice Bill Douglas "is magnificent." Hugo Black and Felix Frankfurter have used almost the same words. Says Harold Willey, who is retiring after almost 30 years as court clerk; "I've never seen the atmosphere so good as it is under Warren. He doesn't make the mistake of trying to compete with the old hands on the fine points of constitutional law. He doesn't have to be a scholar; he gets by on common sense and the ability to make people like him."

But Warren is more than a judicial gladhander; he is a top administrator he has changed schedules, e.g., by switching conference day from Saturday to Friday so as to permit the court to handle more work with less effort) with a remarkable memory and grasp of essential facts. One federal judge says that Warren recently recalled "out of the blue" all the relevant details of the judge's ten-year-old report on whether there should be uniform procedure for admitting lawyers to practice in federal courts. When presiding over the annual Judicial Conference (which handles administrative business for the federal court system), Warren is a pleasant contrast to his predecessors.

Chief Justice Harlan Stone was peremptory, cutting off judges before they were able to make their points. Chief Justice Vinson was passive; he had no agenda and simply slumped down in his chair while garrulous judges wasted the time of the conference. Earl Warren is neither peremptory nor passive. When a judge begins to ramble, Warren is likely to break in with the graciously smiling remark: "Now, Judge, doesn't your argument come down to these four points?" He lists the points tersely and with unerring accuracy. The judge nods bemusedly, and Warren turns briskly to the next speaker.

To Steer or Be Steered?

Such qualities are invaluable to Warren in the Supreme Court conference room, where the real work of the court is done and where Warren has the key privileges of opening discussion on all cases and of assigning the writers of majority opinions (when he himself is in the majority). They are the qualities that have enabled Earl Warren to make such an imprint on the Supreme Court and all its work. And that imprint is the reason that critics, when blaming the court for its 1956 record, point specifically to Earl Warren.

More than 70 bills now before the Congress are aimed at whittling down the power of what their backers consider a runaway court. Example: last week the Senate Judiciary Committee approved a bill to prevent the Supreme Court from interpreting any federal law as overriding any state law unless the act of Congress "contains an express provision to that effect."

Most of the attacks on the Supreme Court are emotional instead of cerebral.

Most of the 70-odd congressional bills are bad ones, with little likelihood of passage in the foreseeable future. But the wide spread reaction against the court's use as a social instrument is a clear and present danger. It is the risk that Earl Warren assumes when he views his role as "steering the law" rather than being steered by it.

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