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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm fine. I've already had one mug of coffee. I'm starting on my second.
N. Rodgers: Wow. The world's just made better with more coffee.
J. Aughenbaugh: Well, of course it is.
N. Rodgers: Somebody asked me, how much coffee does Aughie drink? I said, How high can you count? I'm like, he has enough that it would stop a normal person's heart. Let's just put it that way. That's his range of the day.
J. Aughenbaugh: It was funny. Listeners, a few weeks ago, I had back-to-back eye surgeries, and they were prepping me for the eye surgeries, and you're not allowed to eat before the surgery, but you were allowed to have clear liquids, including coffee. The funny thing was, I fell asleep before both eye surgeries in the prep area. One of the nurses said, Did you not have enough coffee, Mr. Aughenbaugh? I said, I've already had 48 ounces and they were like, and you fell asleep? I said, yes, it was very relaxing.
N. Rodgers: Well, what listeners don't know about Aughie, which is marvelously true about Aughie. It's also true about my friend Neil, is that if you take them out of motion, if they are not moving for more than 15 minutes, they will both go to sleep. They're both like, Hey, let's take this opportunity to catch a few Zs. I just think that's hilarious because you can fall asleep sitting up in a car, sitting up on a bus, you can fall asleep between glasses in your office. If you've got a few minutes, to catch cat nap that kind of a thing. I just can't do that, I have to be laying down. It has to be dark. I have this whole set of circumstances that have to happen to fall asleep. It's no wonder that half the time I'm sleep deprived. But, I admire that you can just drink coffee and then go right to bed because a lot of people can't do it. Although some people, I guess, caffeine puts them to sleep. It's more of a sleep agent than it is a wake agent.
J. Aughenbaugh: My body does not necessarily equate the consumption of coffee, with now we're going to go do X.
N. Rodgers: Well, as far as I have ever seen you, I don't think I've ever witnessed you in a high state of adrenaline, you just don't. You tend to be like, look, an active shooter, I guess I'll just walk over there and ask him to stop. You're very calm. You tend to be calm in the face of absolute insanity, which I also think that's just the nature of you as a person.
J. Aughenbaugh: My former colleague, Herb Hirsch, may rest in peace once said that of all his colleagues that he worked with, and he was a college professor for well over 40 years, he said, If I pick one colleague to go through a crap storm, and he goes, it would be you because he goes.
N. Rodgers: You're just calm.
J. Aughenbaugh: Your reaction to things are so, we got a problem. Let's find the solution.
N. Rodgers: Let's just work through this.
J. Aughenbaugh: Yeah, let's work through this.
N. Rodgers: We're falling into a pit. Well, we'll be okay. Just put your feet downwards, and put your arms up, and let's see what we can do. But today, we are continuing our ongoing saga of the court system by chief courts, and today, we are with Earl Warren. Earl Warren who served from 1953-1969, or as I would like to think of it, the most tumultuous years on the Supreme Court. Seriously, is there a time period that is more tumultuous than this time period on the court? Maybe Marshall.
J. Aughenbaugh: That would be hard-pressed to go ahead and identify any other Supreme Court era. Where one, there was as much going on in the country. But two, how the court responded and in some cases, led some of the most significant changes in American society. You would be hard-pressed to find another Supreme Court era that was so important, played such a significant role, because in many ways, the federal courts in general, Nia, are a reactionary government institution. They have to wait for cases to be brought to the court. But in the case of the Warren Court, some of their rulings then generated significant changes.
N. Rodgers: You get this feedback loop, which you also got during the Civil War, a little bit. You get it during the Civil War, and then you get it in these '50s and '60s, where you're talking about huge. What comes together is Earl Warren and Martin Luther King Jr., and Wright and all these different players who are setting things into motion that are just incredibly powerful changes in American history.
J. Aughenbaugh: Listeners, let's be very clear. You would be hard-pressed to find any constitutional law or judicial politics scholar that doesn't refer to the Warren Court era as the most liberal Supreme Court era in our country's history. It's oftentimes referred to as the Civil Rights Revolution led by the court. In many ways, and this is one of the themes of this podcast episode and the next podcast episode, because our discussion of the Warren Court, there's so much material, we're breaking it up into two episodes. But one of the themes in both of these episodes is the change in many ways, was due to the leadership of the chief justice. I know in previous podcast episodes, Nia, we've talked about how some of the chief justices were not the intellectual leaders of the court.
N. Rodgers: They were excellent administrators. That's what they get called. That's what they call you when you're not that smart. They say you are an excellent administrator. If anybody ever calls you that in your job, listeners, you should think to yourself, hey, wait a minute. What do they mean by that? Because that's how they referred to a whole bunch of the previous. What's funny about Earl Warren is he's not particularly intellectually gifted, according to his bio, and Aughie is going to talk about that in a minute, but he's incredible at bending people to his will.
J. Aughenbaugh: That's right.
N. Rodgers: His gift is politics. He's a politician. He's able to say, I will give a little, let me get a little. Let's find a place where we can move this forward in the way that I want it to go. For the most part, he wins. For the most parts he gets what he wants.
J. Aughenbaugh: For those of you who read any books on leadership or taking leadership classes, one of the most common characteristics of leaders is that they oftentimes set broad goals. Then they lead the organization to achieve those goals. They won't necessarily specify or even provide the details, but they're really good at leading people to achieve those goals.
N. Rodgers: They're good at creating consensus. Nobody here is completely happy with what we've done, and nobody here is totally unhappy with what we've done, we're in that place of building.
J. Aughenbaugh: Oftentimes leading you to achieve things that afterwards you're like, I didn't know I wanted to do that.
N. Rodgers: Or I didn't know we could do that.
J. Aughenbaugh: If you think about this just in very broad terms, the Warren Court expanded civil rights, civil liberties, definitely expanded judicial power, and, in particular, emphasized federal government power. The Warren Court was definitely characteristic of the cooperative federalism era.
N. Rodgers: We're getting away from states' rights people. We're getting away from, hey, the states to, no, the feds.
J. Aughenbaugh: It's universal across the country, constitutional norms. Just to give you one example, if you've ever heard listeners of one person, one vote, it's because of the Warren Court, because of a series of rulings of the Warren Court in the 1960s that basically said that every person in the United States who was eligible to vote, their vote should mean as much as the next person. That states could not redistrict in such a way to benefit some voters compared to other voters.
N. Rodgers: Or have poll taxes or have tests that you have to take that strip out votes, frankly, from Black folks and especially Black men.
J. Aughenbaugh: Or urban voters versus rural voters.
N. Rodgers: I think his phrase was actually one man, one vote, it's less about gender equality. Although the Warren Court is starting to bring about some of that.
J. Aughenbaugh: Gender equality happens with the next court, the Burger Court, but it's on principles created by the Warren Court.
N. Rodgers: This idea of people have the right to vote.
J. Aughenbaugh: I went with one person, one vote because, again, even the Warren Court used words and phrases that by today's standards are problematic. There were Supreme Court rulings of the 1960s that used Negro in regards to a Black person. Those were authored by the first African American Supreme Court Justice, the Good Marshall.
N. Rodgers: He was using the language of his time. Sorry, we probably should have given a warning about that. There will be some terminology here that will make people uncomfortable. But it was the language of the time.
J. Aughenbaugh: The Warren Court also, Nia gave us the infamous Miranda warning.
N. Rodgers: Ernesto Miranda, we will revisit him later.
J. Aughenbaugh: Yes. Foreshadowing on an upcoming series that we're going to start here in a few weeks. But you also get the end to racial discrimination. This idea of separate but equal satisfied the Equal Protection Clause of the 14th Amendment. The Warren Court doesn't. We're talking about some of the most significant changes in American constitutional law occured during the Warren Court. But what's really fascinating to me, Nia and I always express this fascination when I talk about the Warren Court, is you probably could not have picked Earl Warren to be that leader, and here's the reason why.
N. Rodgers: His history does not bend itself too.
J. Aughenbaugh: You have to know this idea that he was going to completely transform American constitutional law in the Supreme Court, if you look at his origins in bio.
N. Rodgers: Huge parts of American culture like what we now think of, well, no, that's just how it is. For instance, most people in the United States. I'm not going to say that every person in the United States because there are few nut jobs in the United States, but most Americans, conservative, liberal, progressive, Republican, however you want to think about them, if you say, do Americans have the right to vote, they would say, of course, they do.
J. Aughenbaugh: Of course, yes.
N. Rodgers: That is no longer in question. Whereas before Earl Warren's court, at least in the South, you would have gotten, well, as the response from a lot of people in the political system. I don't know if everybody has the right to vote. That was what would have been said. Now this is such a mental leap that modernly we're not even arguing the point of do Americans have the right to vote in the American system?
J. Aughenbaugh: Or Nia, think about, for instance, how the Miranda warning is so deeply enmeshed.
N. Rodgers: Most people can recite it to you because they've seen it on television approximately nine billion times, like every episode of Law and Order. Every episode of most television shows that are police procedurals. At some point or another, somebody gets read their Miranda.
N. Rodgers: It's now so ubiquitous that we all think, of course, that's your right. That only comes in in the 1950s.
J. Aughenbaugh: 1966.
N. Rodgers: Sorry, 1966. I know this is going to sound crazier, but that's the year before Aughie and I were born.
J. Aughenbaugh: Born, yes.
N. Rodgers: That's our lifetimes that Miranda has become so ubiquitous that everybody knows it.
J. Aughenbaugh: Yes.
N. Rodgers: Whereas before then, people were, no, you don't have any rights. Yes, you do.
J. Aughenbaugh: This idea with Miranda, that government agents would have to remind you of your rights.
N. Rodgers: Exactly. Make sure that you understand your rights.
J. Aughenbaugh: Your rights before you interact with the government.
N. Rodgers: Before that, it was just apparently the Wild West with the government. Anyway, let's talk about Earl Warren because Earl Warren is a fascinating character, just him as a person.
J. Aughenbaugh: He was born in 1891, he died in 1974. He lived five years after he stepped down as chief justice.
N. Rodgers: He didn't die in office. Lots of them croak in office.
J. Aughenbaugh: No, he resigned.
N. Rodgers: He hung out on the beaches of Waikiki with scantily-clad women.
J. Aughenbaugh: No.
N. Rodgers: Probably not.
J. Aughenbaugh: No. He actually went back to his home State of California. Even if Earl Warren had never been named chief justice, he would have been a prominent name in the history of the State of California. He was born in Los Angeles. His family moved to I believe it was Bakersfield. He was not an exceptional student, listeners, as Nia mentioned a few moments ago. In any biography you read of Earl Warren, that is made very clear. He was a good decent student, but he wasn't exceptional. After graduating from, I actually had to look this up, Kern County High School in 1908, that's in the Bakersfield region of California, he went to the University of California at Berkeley. Good school.
N. Rodgers: Well, that explains some things.
J. Aughenbaugh: UC Berkeley. He majored in political science.
N. Rodgers: He's your tribe.
J. Aughenbaugh: Yes. Then he went to UC Berkeley's Department of Jurisprudence. It was later renamed UC Berkeley Law School. But back then, it was the Department of Jurisprudence. He received his Bachelor of Law degree in 1914. I didn't know this, upon graduating, he was immediately admitted into the California Bar to practice law without taking an exam. California had that pathway.
N. Rodgers: From certain schools?
J. Aughenbaugh: From certain schools.
N. Rodgers: Interesting, so he skipped taking the test.
J. Aughenbaugh: Yes.
N. Rodgers: Although, he probably could have passed the test. He was not a dummy.
J. Aughenbaugh: No, he was an average student.
N. Rodgers: He was a B, C student, not an A+ student.
J. Aughenbaugh: That's right. After graduating from the Department of Jurisprudence, he was hired as a deputy district attorney for Alameda County, which is the county outside of San Francisco, did that for five years.
N. Rodgers: Is that where the baseball stadium is?
J. Aughenbaugh: Yes.
N. Rodgers: During the earthquake?
J. Aughenbaugh: Well, I thought you were talking about the fact that that's where the Oakland A's used to play. It is in a very sad state of condition, which is one of the reasons why the Oakland A's are moving to Las Vegas. It was one of those stadiums that was built in the 1960s as a multipurpose stadium. The Oakland A's baseball team played there, so did the Oakland Raiders football team.
N. Rodgers: Anyway.
J. Aughenbaugh: He was hired as deputy district attorney. Then he was appointed district attorney in 1925. He gets active in Republican Party politics and wins an election. Now, mind you, in 1938.
N. Rodgers: As attorney general.
J. Aughenbaugh: Of the entire state.
N. Rodgers: Of California. He goes from a tiny pond.
J. Aughenbaugh: Yes.
N. Rodgers: To a huge pond. He must have run that election really well. He must have been very charming, won people over.
J. Aughenbaugh: Yes.
N. Rodgers: Again, we're starting to see the consensus. Get with me, I'm a good guy. I know what I'm doing.
J. Aughenbaugh: Yes.
N. Rodgers: I should be attorney general of the entire State of California. That would be somebody from Richmond becoming the attorney general for the entire State of Virginia. Think about California, by the way, at this point, is Republican. A huge amount of it is rural. He would have had to go all over. Because you have LA and you have San Fran, but a lot of the cities aren't as built out as they will be after the war. You get a huge buildout of California after the war, but before that, you have big spaces where there's just people growing stuff.
J. Aughenbaugh: He was in the Republican Party in California, we talked about this previously when we were discussing William Howard Taft versus Theodore Roosevelt. Earl Warren was a member of the progressive wing of the Republican Party.
N. Rodgers: Which these days think AOC, Elizabeth Warren because it would be the progressive wing of the Democrat.
J. Aughenbaugh: The Democratic Party, that's right.
N. Rodgers: But the Republicans back then are the Democrats of today, and the Democrats back then are the Republicans of today.
J. Aughenbaugh: However, that said, we also have to go ahead and acknowledge that he was elected as attorney general of California in 1938. What breaks out in 1941? World War II. Japan attacks Pearl Harbor.
N. Rodgers: I see, where we're going.
J. Aughenbaugh: In early 1942, while he is running for governor of California, he was the most prominent advocate of asking the Roosevelt administration to create a policy that would allow the forced removal and interment of over 100,000 Japanese Americans living in California. He was a huge [inaudible]
N. Rodgers: He's what leads to Korematsu.
J. Aughenbaugh: Yes.
N. Rodgers: He's running for governor.
J. Aughenbaugh: Yes.
N. Rodgers: He's been attorney general for a couple of three years. Then he says, the governor's job looks pretty good, I think I'll go for that. He's running for governor. He says, we should do this. This is a good idea, which when you see what he does later, seems like he completely flips. You know those Othello pieces that are black on one side and white on the other, and you can turn them over?
J. Aughenbaugh: Yes.
N. Rodgers: He goes, flip. He's like, not only was that a terrible idea, but I'm going to fix a lot of other things that are terrible ideas. Does he express regret later in his life for supporting that?
J. Aughenbaugh: Yeah, he did. He also attempts to go ahead and explain it by what's known as Miles Law, which is where you stand on an issue frequently depends upon what government desk you sit behind. Yes, as attorney general/governor of California.
N. Rodgers: You would want to protect, I'm reading that in quotes, California.
J. Aughenbaugh: I needed to protect the citizens of California because what's the next stop after.
N. Rodgers: Hawaii.
J. Aughenbaugh: Hawaii.
N. Rodgers: California.
J. Aughenbaugh: It's the West Coast. The largest state on the West Coast is California.
N. Rodgers: He's like, I was acting in a certain set of beliefs.
J. Aughenbaugh: On behalf of the citizens of California.
N. Rodgers: The rest of the United States, if Japan had invaded California and been successful.
J. Aughenbaugh: Yes.
N. Rodgers: I'm not trying to be ugly to the square ones in the middle, but there wouldn't have been much they can do about it. You know, what I mean? You can make it across Nevada.
J. Aughenbaugh: Once you get past California. Remember, Nevada at that time was not as populated as it is today. You're talking about a number of states in the Mountain West, Nevada, and Utah.
N. Rodgers: You might meet resistance in Utah a little bit, but the federal troops would have had to come. That would have been a mess, but it's still wrong.
J. Aughenbaugh: It's still wrong.
N. Rodgers: We modernly can say that was just a bad idea.
J. Aughenbaugh: Bad idea. In 1942, he wins the gubernatorial election in California.
N. Rodgers: He's a guber.
J. Aughenbaugh: As the 30th governor of California.
N. Rodgers: Who did he beat?
J. Aughenbaugh: I love the name, Culbert Olson.
N. Rodgers: Culbert. That's a family name. Culbert has got to be.
J. Aughenbaugh: He gets elected three times. He doesn't finish his third term.
N. Rodgers: It's a four-year-term, '42-'46, '46-'50.
J. Aughenbaugh: Yes.
N. Rodgers: '50-'53, when he becomes chief.
J. Aughenbaugh: He was nominated chief justice.
N. Rodgers: Those years would have been huge growth in California. It's a huge growth in the whole nation.
J. Aughenbaugh: Particularly, California. Because what many of perhaps our younger listeners may not know is, as Nia pointed out, after World War II, first of all, California expanded greatly during the war, as the military went ahead and produced a lot of weapons.
N. Rodgers: Bases along the California coast because the whole point was to try to protect against Japan.
J. Aughenbaugh: The defense industry just exploded in California. Because if you create a military base, then you need ancillary industries to support the base.
N. Rodgers: That's where all the families are.
J. Aughenbaugh: Then after the war ends, there were a whole bunch of developers and a whole bunch of state officials who were like, a lot of these GIs who fought in the Pacific theater are going to be first stopping in California on their way back home.
N. Rodgers: Some of them will stay because the weather is beautiful. It's physically very lovely in many parts of California. But you also get at that point, at least for White soldiers, the GI Bill. They're going to be going to colleges. They're going to be building houses or buying homes, starting families. That's when you get the baby boom. He's presiding over all of that as governor of California.
J. Aughenbaugh: California. While he's governor of California, he was Thomas Dewey's vice-presidential running mate in the 1948 presidential election.
N. Rodgers: Of the infamous Dewey wins headlines.
J. Aughenbaugh: Where a number of major newspapers on the morning after before the votes have been completely counted had concluded that Thomas Dewey had defeated the incumbent president Harry S. Truman. They were wrong.
N. Rodgers: They were very wrong.
J. Aughenbaugh: They were very wrong. Warren sought the Republican Party's nomination for the 1952 presidential election, but he lost out to former general Dwight D. Eisenhower.
N. Rodgers: I like Ike.
J. Aughenbaugh: I like Ike, that was the campaign slogan. But here's the key thing in regards to Warren getting on the Supreme Court as chief justice. During the Republican Party National Convention, Warren agreed to stop his candidacy and give Eisenhower all of California's delegates because Warren had won the State of California quite convincingly during the primary.
J. Aughenbaugh: In exchange, the Eisenhower campaign promised Governor Warren any job in the Eisenhower administration if Eisenhower wins the general election. Eisenhower wins the general.
N. Rodgers: He makes a deal, basically. If you give me your delegates, I will give you whatever job you want. You want to be ambassador to Sardinia? Great. You can have the job.
J. Aughenbaugh: The thinking of the Eisenhower campaign was that because he was California's attorney general at one point in his career.
N. Rodgers: Oh, that he would be the federal attorney? He would be the national attorney general.
J. Aughenbaugh: Yeah, you would be the US Attorney General. Well, Eisenhower wins. The Eisenhower now campaign administration transition team offers Warren, the Attorney General, and Warren says, No. Warren says?
N. Rodgers: Oh wait. I have to get out of jail free card, and I'm just going to put it in my pocket.
J. Aughenbaugh: Well, Warren made it very clear, I want to be on the US Supreme Court.
N. Rodgers: Oh.
J. Aughenbaugh: He didn't ask to be Chief Justice.
N. Rodgers: He just want to be a member of the court.
J. Aughenbaugh: Yes. First vacancy. Well, the first vacancy ends up being the Chief Justice. Because Harlan Fiske Stone dies in office.
N. Rodgers: I'm not laughing at Harlan Fiske Stone, I'm just laughing at the, I want to be on the Supreme Court. Oh, well, it looks like you get to be the chief of the Supreme Court.
J. Aughenbaugh: Yes.
N. Rodgers: Which is a nice reward for giving up your candidacy. Do you think that Warren, if he had continued to fight, would it have just split the Republican Party or would eventually he have lost to Eisenhower, or do we know? Is it just one of those things that political scientists argue about when they're drinking adult beverages at their conferences? Because I know how y'all are.
J. Aughenbaugh: Well, the funny thing is when Warren at the convention agreed to pledge his delegates to General Eisenhower, the Republican Party had already taken, I think, four or five votes.
N. Rodgers: Oh. This was already an exhausting ongoing process and people were ready to be done?
J. Aughenbaugh: Listeners, this is before what we currently see at Political Party National Conventions. Today, Political Party National Conventions, it's already known who's going to be the party nominee.
N. Rodgers: Oh, yeah. They go there to have a big party and yell that person's name.
J. Aughenbaugh: Yeah.
N. Rodgers: Yeah, Hokenbaugh, Harbaugh for president.
J. Aughenbaugh: It's just an organized televised pep rally.
N. Rodgers: The last one that wasn't like that was 1967 in Chicago.
J. Aughenbaugh: Sixty eight.
N. Rodgers: Yeah, '68 in Chicago which was a disaster.
J. Aughenbaugh: For the Democratic Party, just go ahead and see a Democratic mayor of Chicago, the first Mayor Daley, basically have his police department attack the protesters.
N. Rodgers: They beat the crap out of the protesters.
J. Aughenbaugh: On national TV.
N. Rodgers: Yeah.
J. Aughenbaugh: After that, the political parties were like, this might be good TV, but it's really bad for party morale.
N. Rodgers: Exactly. It makes us look like we are the most disorganized lunatics on the planet. It's not a good look for anybody.
J. Aughenbaugh: What's also fascinating is Harlan Fiske Stone died while Congress was adjourned, they we're on a break, so Eisenhower makes Warren a recess appointment.
N. Rodgers: Because you really shouldn't have the court without a chief.
J. Aughenbaugh: A chief justice. This is also, the selection of Warren is also, where we see reference our previous podcast episode, Robert Jackson getting all upset because Robert Jackson had been promised by President Truman's predecessor, Robert Jackson still harbored a desire to be the chief justice. He got passed over when Harry S. Truman picked Fred Vinson to replace Harlan Fiske Stone, so Robert Jackson, who's still on the court's like, what about me?
N. Rodgers: It's not Stone that Warren replaces it's Vinson?
J. Aughenbaugh: It's Fred Vinson. Yes. I misspoke a few moments ago. Thank you for correcting me.
N. Rodgers: No, I was just checking my timeline.
J. Aughenbaugh: It's Harlan Fiske Stone met Fred Vinson. Fred Vinson dies in office. Eisenhower recess appoints Warren.
N. Rodgers: Is there any trouble getting him through the Congress?
J. Aughenbaugh: No.
N. Rodgers: They're like, that guy's fine.
J. Aughenbaugh: Again, with the politics of the day, Earl Warren was not an extreme.
N. Rodgers: Oh, if they had known what was coming down they probably would not have confirmed him.
J. Aughenbaugh: Democrats would have had all problems. Because remember, listeners, at the time, 1954, '53, '54, it was 1953 when he gets recess appointed. At the time, the most conservative part of any political party in the United States were Southern Democrats.
N. Rodgers: If they had known what he was going to do, oh, no, they would have stood up and screamed.
J. Aughenbaugh: Yes. To conclude this particular episode, let's talk about the membership of the Warren Court because this is really important.
N. Rodgers: Wait, I have a question.
J. Aughenbaugh: Yeah.
N. Rodgers: Warren at some point, gets a commission named after him.
J. Aughenbaugh: That's going to happen later on.
N. Rodgers: Oh, okay. We're going to talk about. We're going to talk about his later business.
J. Aughenbaugh: We're going to talk about his leadership of the court and what the court does, and one of the most seminal things that happens during the Warren court era is that after President Kennedy gets assassinated, his successor, Lyndon Baines Johnson, creates a commission to explore, who killed President Kennedy.
N. Rodgers: He puts Earl Warren in charge of it?
J. Aughenbaugh: Yeah, puts Earl Warren.
N. Rodgers: Hence why the name is the Warren Commission.
J. Aughenbaugh: The Warren Commission, yes.
N. Rodgers: Excuse me, court eras, commissions are usually named after the chair of the commission.
J. Aughenbaugh: Listeners, if you go back to a previous season, we had an entire series about federal government commissions. We spent an entire episode on the Warren Commission and all of the controversies about the Warren Commission.
N. Rodgers: Right. Because if you think his time on the court was controversial, it's because you haven't read the Warren Commission report. That man snow globed everything he touched. He shook up. You know how when you grab a snow globe and the first thing you do is shake it so snow goes everywhere, he did that with everything he touched. He was just like, here, let me grab, and then he put it back down and see what happened. That was just his nature.
J. Aughenbaugh: Let's talk about the membership of the Warren Court. This is important, Nia. The reason why it's important is that you probably don't get the significant constitutional law rulings from the Warren Court if the membership does not significantly change. To put this in context, our most recent podcast episode, the Supreme Court led by Chief Justice Fred Vinson was basically a divided court. You had three or four consistent liberals, you had three or four consistent conservatives, and then you had a couple swing votes on the Vinson Court. The Warren Court's membership significantly changes, and interestingly enough, it's because of some of the picks made by Truman, but also Eisenhower, a Republican that led to how liberal the Warren Court becomes.
N. Rodgers: Because remember, once a Supreme Court justice is appointed, unless they die or unless they abscond with something important, they crack the Declaration of Independence and steal it and walk off with it, they are not going anywhere, which means that they then have the freedom to rule however they want. You can't boot them for how they rule. There's no provision.
J. Aughenbaugh: They may rule in ways in which the president that picked them would not have liked or had even imagined.
N. Rodgers: It's tough noogies. There's nothing you can do about that. If you don't like the way they rule, Donald Trump can yell at the top of his lungs about how Amy Coney Barrett rules, but he can't do a thing about it in terms of removing her.
J. Aughenbaugh: That's right.
N. Rodgers: That's the other half of the check and balance. He gets to appoint somebody, and he probably, if he has the Senate, gets them through, but then they can turn around and do whatever it is that they're going to do.
J. Aughenbaugh: When Earl Warren assumes the chief justice position, you had the remaining members of the ''Vinson Court.'' Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, Robert Jackson, Harold Burton, Tom Clark, and Sherman Minton.
N. Rodgers: Is Robert Jackson still pissed cause now he's been passed twice?
J. Aughenbaugh: Twice.
N. Rodgers: He's crappy at this point. He's like, really? Why won't anybody appoint me chief? What is wrong with you people?
J. Aughenbaugh: Now, Jackson's crabbiness ends pretty quickly after Warren gets appointed because Robert Jackson died in 1954 shortly after the court issues the infamous Brown v. Board of Education decision.
N. Rodgers: Please tell me that it says on his tombstone passed over twice.
J. Aughenbaugh: No, it doesn't.
N. Rodgers: That wouldn't be nice to his family.
J. Aughenbaugh: No. He dies, Jackson dies in '54. Sherman Minton retires in '56. Jackson's replaced by John Marshall Harlan II, the second Justice Harlan.
N. Rodgers: There has been a Harlan before? I thought that name was familiar.
J. Aughenbaugh: The first Harlan was known as the first great dissenter on the court because he was in the late 1800s and was frequently the only dissent on a very conservative court.
N. Rodgers: He's a dissent in Plessy.
J. Aughenbaugh: Yes.
N. Rodgers: Okay. He's the one of the 82?
J. Aughenbaugh: Sherman Minton is replaced by William Brennan.
N. Rodgers: Oh, Brennan.
J. Aughenbaugh: You're going to want to remember Brennan because Brennan ends up becoming pretty much Earl Warren's chief lieutenant/intellectual enforcer.
N. Rodgers: Justice Brennan with his baseball bat that he will use on your knees if you don't move your legs.
J. Aughenbaugh: What's really funny is if you ever saw pictures of William Brennan, William Brennan was like all of 5'6" or 5'7". He was this short Irish guy from New Jersey. But he was, in the language of the United States Congress, he Earl Warren's whip, which again, allowed Earl Warren to be considered the super chief because he wasn't the one going around twisting arms.
N. Rodgers: He sent Brennan to do that?
J. Aughenbaugh: Yeah.
N. Rodgers: Hey, Bill, I need to go make so and so do such and such. Yes, sir.
J. Aughenbaugh: So and so hasn't joined my majority opinion, could you go down there.
N. Rodgers: They need to.
J. Aughenbaugh: Could you go down and have a chat with them and discuss how intellectually, they can get their head around joining my majority opinion. Now, Stanley Reed retires in '57, and is replaced by Charles Evans Whitaker. Harold Hitz Burton retires in '58, and Eisenhower appoints Potter Stewart from Ohio.
N. Rodgers: We've also heard of. Potter Stewart becomes insane figure.
J. Aughenbaugh: Because Potter Stewart is the one who infamously said in the Jacobellis case in the 1960s, he could not define pornography or obscenity, but he knew it when he saw it.
N. Rodgers: Yes. Which is one of the best quotes ever.
J. Aughenbaugh: But then went ahead and lamented that most Americans only knew of his work on the Supreme Court.
N. Rodgers: For that. Well, I found one pithy thing to say, and then everybody remembers.
J. Aughenbaugh: Then there's four years between the next set of vacancies. In 2062, Felix Frankfurter and Whitaker retire.
J. Aughenbaugh: Whitaker was only on the court what, five years?
Nia Rodgers: Oh, this job's not for me. I imagine stressful and exhausting at this time period because is going to talk to us later about what the cases were at this time and these guys were making some hard core decisions. The work of the court at this point, probably was incredibly exhausting.
J. Aughenbaugh: They were taking on issues that the political branches at all levels of government. The Supreme Court waited on in with both feet and if you're a justice at that period of time, I can't imagine going to work was a stress free environment.
Nia Rodgers: I can't imagine you slept. You know what I mean? You probably just were stressed about wanting to make sure you do the right thing and wanting to make sure you do it in the right way. Because those are two very different things. Knowing what the right thing is and being able to thread the needle. Who do we get for those two guys?
J. Aughenbaugh: Frank Free and Whitaker are replaced by Byron White and Arthur Goldberg.
Nia Rodgers: Hey, Byron White, that's your guy. You did your dissertation on it.
J. Aughenbaugh: Tron Byron White and Arthur Goldberg, was a prominent labor union attorney.
Nia Rodgers: Kennedy appoints them because Kennedy, they are likely to be progressive because Kennedy progressive.
J. Aughenbaugh: But not as progressive as the next president. Kennedy gets assassinated in 1963, President is Lyndon Baines Johnson.
Nia Rodgers: Vice president immediately steps up.
J. Aughenbaugh: LBJ encourages air quotes, encourages Goldberg to resign. Now, the way he encouraged Goldberg to resign.
Nia Rodgers: Oh, my gosh, please tell me he did the stand over him thing.
J. Aughenbaugh: He didn't stand over him, but it was the classic LBJ. LBJ wanted to appoint his good friend, Abe Fortas to the Supreme Court, but he had no vacancy. What he did was he created a vacancy. He knew Goldberg did not like the quiet, monkish existence of the Supreme Court. He knew that Goldberg wanted to get back to being involved in the policymaking process. He says to Goldberg, if you resign from the Supreme Court, I will make you the US ambassador to the United Nations.
Nia Rodgers: Ooh, which at that time would have been very exciting.
J. Aughenbaugh: Very exciting. Cold War.
Nia Rodgers: You have all the stuff going on with the UN.
J. Aughenbaugh: LBJ promises Goldberg that he will have a prominent influential role in crafting the Johnson administration's foreign policy. Goldberg is, great. I'll resign.
Nia Rodgers: Please tell me he went through with that. Please tell me Goldberg became.
J. Aughenbaugh: He did become.
Nia Rodgers: That would have been a total jerk move to be like psych.
J. Aughenbaugh: But LBJ, did not bring Goldberg into his foreign policy team. Let's face it, LBJ basically made his own policy.
Nia Rodgers: That part of the promise was false.
J. Aughenbaugh: Yeah it was false. But nevertheless, it created the vacancy. Abe Fortas gets it.
Nia Rodgers: Is Abe Portis a good lawyer? Does he deserve to be on the court?
J. Aughenbaugh: He was a great lawyer. He had qualifications in the world.
Nia Rodgers: It's not just, I'm going to put my buddy who was who managed to get Ds in law school and doesn't understand anything about the law?
J. Aughenbaugh: Ed Fortis had the qualifications. But it was classic LBJ. You don't have a vacancy for a government job? Let's create a vacancy.
Nia Rodgers: If you guys ever visit the LBJ library, there is a place where you can get the LBJ treatment. What it is is it's a cutout of Lyndon Bain Johnson. Life size. The man was four or six five and he would stand within 6 " of somebody. He shake their hand and grab their elbow and lean over them and most people were shorter than him. You're looking up at him. You are literally 6 " from him and he's got a hold of your elbow and shaking your hand with the other hand. He has a hold a grip on you. You can go do that. He was terrifying in terms of that. He did that to people on a regular basis.
J. Aughenbaugh: Imagine you get invited to the Oval office by the president of the United States.
Nia Rodgers: He grabs you, pulls you close, shakes your head standing over you.
J. Aughenbaugh: Even before the treatment, you're already crapping bricks anyways 'cause you're going to the Oval office to meet the president and then the president does what Johnson would do. If the mere physical presence of him invading your personal space was not enough, then he would just get, just downright belligerent. You would curse it.
Nia Rodgers: Don't let him start talking about your mama. He's going to say things.
J. Aughenbaugh: He would make threats.
Nia Rodgers: Johnson got his way.
J. Aughenbaugh: Then LBJ forced Tom Clark to retire in 1967.
Nia Rodgers: I'm going to need you to retire.
J. Aughenbaugh: The reason why he wanted to do it was LBJ, who orchestrated the 1964 Civil Rights Act, the 1965 Voting Rights Act, the infamous Great Society. LBJ wanted as part of his legacy as president, to be the first president to appoint an African American to the Supreme Court. Great laudable goal. The problem was.
Nia Rodgers: Nobody would croak or retire.
J. Aughenbaugh: He had no vacancy on the court. LBJ orchestrated yet another vacancy. He convinced Tom Clark to retire from the court by appointing Tom Clark's son as the US Attorney General. This would create an immediate conflict of interest because who officially represents the US, the federal government in cases in front of the Supreme Court?
Nia Rodgers: The attorney general.
J. Aughenbaugh: US Attorney General.
Nia Rodgers: Now you have father and son, they can't do that.
J. Aughenbaugh: Tom Clark would have to recuse himself in a whole bunch of cases. Clark retires. LBJ can put Thurgood Marshall on the Supreme Court.
Nia Rodgers: Let's take just a moment to say, Thurgood Marshall is probably one of the best attorneys black or white that has ever attorney in the United States. Without question definitely deserve to be on the Supreme Court. Without question, an excellent attorney because he played the long game. He could look at a case and say, we're going to take this case and run with it all the way to the Supreme Court, and we're going to go slow and steady and get things done. Thurgood Marshall was one of those people who had vision. He could plan.
J. Aughenbaugh: For our non American listeners, Thurgood Marshall was the chief lawyer for the NAACP's Legal Defense Fund. That's the unit of that interest group who ends up bringing Brown versus Board of Education to the United States Supreme Court. That's the case that overturns segregation in public schools. Thurgood Marshall also served as a Federal Appeals Court judge on the Second Circuit Court of Appeals and was also solicitor general for a period of time for the Johnson administration. This is a guy who's got courtroom chops. He's already been a Federal Appeals Court judge. He's already argued countless number of cases in front of the Supreme Court both as a private attorney. Working for the NAACP, but also as the federal government's, main, if you will, legal, counselor in front of the Supreme Court.
Nia Rodgers: Side note, if you don't know, National Association for the Advancement of colored people. That's the NAACP and they still exist as an organization.
J. Aughenbaugh: You acting the day. The result of all these changes is that the Supreme Court becomes significantly more liberal.
Nia Rodgers: Johnson helps that along because he's trying to get them to help the great society. He's trying to get them to do the things that need doing.
J. Aughenbaugh: The Warren Court by the mid to late 1960s, Neo, basically was comprised of usually seven consistent liberal votes. Occasionally, Byron White would vote with the conservatives in regards to criminal law cases. Byron White, for instance, dissented in Miranda versus Arizona in 1966. But, you only had two conservative justices consistently. The rest were liberals. You're talking about some intellectual heavyweights beyond Earl Warren. William Brennan, Douglas, Thurgood Marshall really struggled on the court because he liked being a courtroom litigator. He didn't really like being a judge. But again, he's a solid liberal vote. You're talking about, Abe Fortas, solid liberal vote. The Warren Court, because of the membership change, Earl Warren didn't need to go ahead and be as political once you move into the 1960s because there weren't enough conservatives on the court that would force him. The only question was, how quickly would the lower court how liberal?
Nia Rodgers: How liberal. It's not a matter of whether they'll do a liberal where they'll do progressive liberal things. It's how far will we go?
J. Aughenbaugh: That's right.
Nia Rodgers: That's what the question becomes, and that's what we're going to talk about, I think in the next episode. It's how liberal.
J. Aughenbaugh: That's where some of the criticisms, even by law professors who liked outcomes, were critical because they went really out there in terms of justifications and what would this mean long term.
Nia Rodgers: Because you're talking about activism. At this point, you're talking about activism. Because you're starting to see you're starting to see the encouragement you see the encouragement of that not starting to. You're seeing the encouragement of that by Johnson because he's get me these things that allow us to do. Because one should keep in mind with Johnson that Johnson was a schoolteacher. Before he became a politician, he was a school teacher and he taught in very poor schools in Texas where he saw what happened to migrant children. He saw what happened to children of color and how poorly they were treated. He thought, if we are going to fix poverty, if we're going to fix our society, these people have to have a chance to do well. They have to have a chance to vote, they have to have a chance to be part of things.
J. Aughenbaugh: To go to good schools, to live in quality houses plumbing.
Nia Rodgers: All of these have to change in order for us to have what he thought of as the great sitting, improved society and so he's trying to get a court that helps him along with that.
J. Aughenbaugh: Because he's looking for a court that's going to go ahead and sign off and give him cover.
Nia Rodgers: Think of FDR in the New Deal. He wants a court that's going to give him the right to do all the new deal stuff.
J. Aughenbaugh: He wants the court to be able to go ahead and give him, if you will, the justification when he goes to Congress and says, we need to do X because the Supreme Court, in this case, has already said that this is either constitutional or required.
Nia Rodgers: They're covering each other. Although I can't imagine that Earl Warren and Lyndon Baines Johnson were friends.
J. Aughenbaugh: They weren't friends, but they appreciate each other's politics.
Nia Rodgers: Strips. I imagine don't seem like they'd be people who would be friends.
J. Aughenbaugh: No, Earl Warren always had what's the expression a soft glove. Lyndon Baines Johnson was frequently a sledgehammer. That's the first part of the Warren Court. Second part, in the next episode, we're going to look at his leadership, his philosophy, and some of the most important cases. Good stuff, Nia. Thank you.
Nia Rodgers: Thank you, Aughie.
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