Earl Warren: Finding “The Notion of Equality”

By David Adler

President Dwight D. Eisenhower’s recess appointment of Earl Warren to the chief justiceship of Supreme Court on September 30, 1953, constituted a watershed mark in the history of the court. His leadership of what was decidedly the Warren Court, generated more landmark opinions in American constitutional law than any chief since John Marshall.

Chief Justice Warren, it has been rightly said, did more than any jurist in our nation’s history to ensure that the law, in W. H. Auden’s phrase, “found the notion of equality.” As the principal champion of racial equality during his tenure as chief justice, Warren steered the court to unanimity in Brown v. Board of Education (1954) and other landmark rulings that overturned Plessy v. Ferguson and the doctrine that separate but equal satisfied the Equal Protection Clause of the 14th Amendment in every area of life. 

Chief Justice Warren’s historic tenure, which ended in retirement in 1969, began with his first conference on Brown. His leadership skills as chief, perhaps exceeded only by those of John Marshall, another very astute politician were, in the eyes of his Brethren, demonstrable. Justice William Brennan, another Eisenhower appointee, described Warren’s leadership skills as “incredible.” Justice Harold Burton said the ruling in Brown would “not have been possible” under his predecessor, Chief Justice Fred Vinson.

Warren’s political instincts suggested his approach in tackling the issue of racial segregation in the schools. Observers noted that he steered cases by the way he framed the issues. In his first conference on Brown, Warren presented the question before the court in terms of racial inferiority. He told his colleagues that the only justification for segregation was the belief that Blacks were inherently inferior, and explained that Plessy, if it was to be upheld, could be sustained only on that basis.  

The impact of that opening salvo was palpable: defenders of Plessy were put on the defensive. Warren’s simple approach appealed to the ultimate human values involved, placing the justices who were willing to uphold Plessy and separate but equal in the uncomfortable position of appearing to subscribe to racist doctrine. Justice Stanley Reed, an advocate of retaining Plessy, offered a clumsy, ineffective reply. He contended that he was not making “the argument that the Negro is an inferior race,” but he provided no other basis on which segregation could be upheld. He conceded that Plessy had not been satisfactory and “might not be correct now.” Indeed, he admitted that facilities for Blacks were inferior to those reserved for whites.

Chief Justice Warren was not interested in overwhelming his colleagues, or even in scoring debating points. His concern was to create a majority to overturn Plessy. Again, his political experience led him to seek common ground. He sought to proceed, he noted, “in a tolerant way.” He acknowledged in a downstage voice of regret that precedents would have to be reversed but explained that this was required if the court wished to avoid continued support of outdated theories on which racism and segregation were based. 

Again and again, Warren demonstrated political sensitivities for the difficult decision that Southern justices faced. He expressed no moral outrage and his tone was not one that reflected moralizing. He avoided accusations altogether. He told his colleagues that he sought a decision that might reduce “emotion and strife.” 

But Warren was no pushover. Indeed, scholars have adjudged Warren to be the “strongest” chief justice in American history. He was clear in his arguments to his colleagues that the court “has finally arrived at the place where it must determine whether segregation is allowable in public schools.” The court, he explained “must now face the issue.”

It didn’t long for Warren to recognize that a simple majority of justices voting to strike down Plessy would be insufficient to change history and the nation’s constitutional course on the issue of segregation in the schools. What he feared most was a dissenting opinion and even a strong concurrence by Justice Robert Jackson who, although opposed to segregation, believed the court’s problem lay in making a “judicial decision out of a political conclusion.” Jackson sought a “judicial basis for a political conclusion.” He wanted a properly written decision.

On January 16, 1954, Chief Justice Warren conducted his second Brown conference. The momentum of the justices’ discussions, undertaken in the corridors of the Supreme Court building and the justices’ chambers, befitting Warren’s style of personal, intimate conversations with his colleagues, enabled the court to consider potential remedies. With the exception of Justice Reed, who still exhibited some reluctance to overturn Plessy, the Brethren were on board for what would prove to be an historic decision to rule segregation in the schools unconstitutional.

Reed’s recalcitrance threatened the goal of a unanimous decision. Warren continued his conversations with Reed — over lunch, in their respective chambers and in the hallways. Despite the contradictions of his reasoning, it appeared, as late as April, that Reed intended to dissent. Finally, Warren, in his low-key, solicitous manner, spoke directly to Reed: “Stan, you’re all by yourself on this now. You’ve got to decide whether it’s really the best thing for the country.”

We turn next week to the court’s historic ruling, delivered on May 17, 1954.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at [email protected] and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.