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    Commander v. Chief

    April 1, 2018  | 

    At a white house stag dinner in February 1954, President Dwight Eisenhower shocked the new chief justice of the United States. Earl Warren was Eisenhower’s first appointment to the Supreme Court and had been sworn in just four months earlier. Only two months into his tenure, Warren had presided over oral arguments in the blockbuster school-segregation case Brown v. Board of Education. As of the dinner, the case was still under advisement. Yet Eisenhower seated Warren near one of the attorneys who had argued the case for the southern states, John W. Davis, and went out of his way to praise Davis as a great man. That alone would have made for an awkward evening. What happened next made it fateful. Over coffee, Eisenhower took Warren by the arm and asked him to consider the perspective of white parents in the Deep South. “These are not bad people,” the president said. “All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.”

    It was an appalling moment. Here was the president leaning on the chief justice about a pending case while using the racist terms of an overseer. Several of Eisenhower’s admirers have attempted to downplay the encounter, but reports confirm that he used racially charged language in private. The incident left such an impression that Warren recounted it in his memoirs some 20 years later. Ever decorous, he sanitized the slur from “black bucks” to “overgrown Negroes,” but in his biography, Super Chief, Bernard Schwartz, one of Warren’s confidants, recorded the actual phrase in all its rotten vinegar. Warren had been a prosecutor and a governor, and was no choirboy; he had heard bigoted language before. Yet as the chief justice, he embodied the impartiality of the entire federal judiciary. He was a man who believed in fairness and dignity. The president’s words had shaken him.

    Warren and Eisenhower had up to that point enjoyed a cordial relationship, even if they were not close friends. Above anything else, they had been rivals. Warren, the 1948 Republican vice-presidential candidate, had challenged Eisenhower for the party’s 1952 presidential nomination. Before Eisenhower committed to run for reelection in 1956, party elders had frequently mentioned Warren as a replacement candidate. But he never posed a serious threat to the revered general, and indeed stumped for him on the campaign trail in 1952. Both were natural politicians and centrist Republicans, although Warren was fundamentally progressive in a way that Eisenhower was not. “They were big men with heavy handshakes and open faces,” in the words of Warren’s biographer Jim Newton, and while two alpha males may never be fully at ease in the same cage, this pair was at least pleasant enough not to fight.

    If the stag dinner upended relations between Warren and Eisenhower, the Brown decision three months later ruptured those relations permanently. The Court decided the case on May 17, 1954, declaring that segregation in public schools was unconstitutional. It was the seminal Supreme Court decision of the 20th century, and one of the most important cases in the nation’s history. But Eisenhower pointedly refused to endorse it. Instead he delivered this bafflingly terse answer to a reporter’s question: “The Supreme Court has spoken, and I am sworn to uphold the constitutional process in the country. And I will obey.” There endeth the statement. Eisenhower offered no comment in support of racial equality, no expression of solidarity with African Americans, and no sign of agreement with the Court’s opinion.

    When the Court ruled on the remedies phase of Brown in 1955, a decision known as Brown II, the president was even less voluble. He said nothing about the Court’s delegation of supervisory duties to the district courts, or its famous directive that school districts should begin to desegregate “with all deliberate speed.” The following year, Eisenhower personally rewrote the Republican platform to read that the party “accepts” the original Brown decision, rather than “concurs” with it. An enormously popular president on the cusp of a nation-breaking social revolution was refusing to get in the game. In his outstanding new biography, The Age of Eisenhower: America and the World in the 1950s, William I. Hitchcock quotes the only African American on Eisenhower’s executive staff, E. Frederic Morrow, who reported with despair the broad sentiment that the administration “has completely abandoned the Negro in the South.” One scholar has called Eisenhower’s response to Brown “morally obtuse.” Hitchcock writes that while the president “did not obstruct progress on civil rights,” he “refused to lead,” proceeding with “caution and wariness.” Warren resented this for the rest of his life. The Court, it seemed, was on its own.

    James F. Simon, a legal historian and law professor at NYU, chronicles this tense and at times surprising dynamic in Eisenhower vs. Warren: The Battle for Civil Rights and Liberties, the most thorough and balanced assessment of the two men’s fraught relationship yet written. Most work on this subject is frustratingly scattered, appearing only in chapters in the biographies of either man. (An exception is David A. Nichols’s A Matter of Justice, a spirited but unconvincing revisionist account that seeks to portray Eisenhower as the unsung civil-rights hero of the 1950s.) Simon is the ideal scholar to undertake this study, having made a career of examining conflicts between the presidency and the Supreme Court. As we anticipate an existential clash between Donald Trump and the justices—if Trump attempts to fire Special Counsel Robert Mueller, for instance, or defies an obstruction-of-justice finding—Simon’s book is highly topical. It also has something to teach us about incremental versus rapid change. The fundamental disagreement it chronicles concerns the pace of social progress.

    Simon’s sympathies clearly lie with Warren. And little wonder: Warren’s role in the Brown decision is one of the great acts of American statesmanship. The popular California governor joined the Supreme Court at a moment of crisis. Brown had been argued once already, in 1952, but the justices had been divided and uncertain how to proceed. Their chief, Fred Vinson, had proved unable to find a resolution, so the Court had punted by scheduling a second argument for 1953. By the time it happened, Vinson had died and Warren had replaced him.

    Warren had been a politician, not a judge, and didn’t boast a dazzling intellect to match Felix Frankfurter’s or Hugo Black’s. But “he was not in awe of his colleagues,” Jim Newton writes in his biography. He was “a man at ease with power, confident and capable, a centrist by temperament but an activist too.” Warren was the first to speak at the justices’ postargument conference, forcefully making the case to strike down segregation. He had requested an open discussion rather than a casting of votes, which left time to work over wavering colleagues, notably the Kentuckian Stanley Reed. Warren adjourned the conference with a solid majority. What he wanted was unanimity. He drafted a short, direct majority opinion and, Simon writes, “probed tirelessly for common ground.” Warren invited Reed to a series of lunches and “played the gracious host, always an attentive listener who exuded good will.” At the moment of decision, he won Reed over with a plainspoken appeal to his colleague’s patriotism: “Stan, you’re all by yourself in this now. You’ve got to decide whether it’s really the best thing for the country.” The result was a unanimous ruling that put the full authority of the Supreme Court behind integration.

    Simon contrasts Warren’s bold steps on Brown with Eisenhower’s cautious tiptoe. The president later claimed that he had declined to speak up for the decision not out of disagreement but because he had felt he shouldn’t opine on any ruling of the Supreme Court. It is true that reticence was sometimes his style: Eisenhower displayed a similar reserve toward the red-baiting Joe McCarthy, making a tactical decision to deprive the senator of the oxygen of presidential attention. Yet Simon points out that Eisenhower freely praised the Court’s decisions in other contexts, including, as a candidate, Youngstown Sheet & Tube Co. v. Sawyer (1952), which invalidated President Harry Truman’s attempt to seize control of the steel mills during the Korean War. And Eisenhower abandoned restraint and threw himself into causes that seemed closer to his heart than civil rights, such as the fight for a balanced budget. During violent melees in protest of Brown, Eisenhower temporized, speaking in private of the need to “understand the southerners as well as the Negroes,” and denouncing “extremists on both sides”—a familiar equivalence that elevated racist mobs to the status of civil-rights marchers.

    One of the strengths of Simon’s book is that he nevertheless credits Eisenhower for his civil-rights accomplishments without trying to make him into a Martin Luther King Jr., a Thurgood Marshall, or indeed an Earl Warren. Sadly, if every president forfeits all civil-rights recognition by using racist language in the ugly spirit of his age, then Abraham Lincoln and Lyndon Johnson must go as well. Eisenhower acted to desegregate the armed forces and took strong steps to desegregate Washington, D.C. After procrastinating, he decisively enforced Brown by sending federal troops to Little Rock, Arkansas, to face down Governor Orval Faubus. The president lent his support, with mixed success, to the effort to pass the Civil Rights Act of 1957. Perhaps most important, he had appointed Warren to the Supreme Court four years earlier, and the equally influential progressive William Brennan Jr. in 1956.

    Appointments he later regretted: Eisenhower famously said that his biggest mistake had been selecting “that dumb son of a bitch Earl Warren.” Or so one of his early biographers claims; the remark has come into question. Warren himself wrote that the president was known to have described his appointment as “the biggest damn fool thing I ever did.” Another version has it that when asked whether he had ever made any mistakes, Eisenhower replied, “Yes: two. And they are both sitting on the Supreme Court.” Eisenhower’s other appointees, especially John Marshall Harlan II and Potter Stewart, were more-conservative proponents of judicial restraint, although both supported the Court’s desegregation rulings.

    Whatever the precise quote, Simon observes that Eisenhower sang a loud and bitter tune about his chief justice. At one point Eisenhower even had to sheepishly apologize to Warren for press reports that had picked up his bad-mouthing. In an excellent chapter, Simon shows that Eisenhower’s regret may have had as much to do with communism as with race. Warren led the Court in a series of controversial decisions that secured procedural protections for those accused of having left-wing sympathies. During an awkward exchange in 1965 on the way to Winston Churchill’s funeral, the former president complained to Warren about his handling of “those Communist cases.” Warren asked what Eisenhower would do with Reds in America. The grizzled old general replied, “I would kill the S.O.B.s.” Judges’ robes would not have suited him.

    These exchangesand the larger story of Brown—reveal the Supreme Court as a treasured but vulnerable institution. The public routinely reports having more trust in it than in Congress or the presidency. But unlike Congress, the Court cannot tax or spend. And unlike the president, it commands no army. Its decisions are mere paper whose power depends on nothing more or less than our commitment as a society to the rule of law. Until Eisenhower belatedly stood behind Brown at Little Rock, the nation faced the awful possibility that the South would simply defy the Court. In our current polarized environment, the thought that such defiance might come from the president rather than recalcitrant states is chilling.

    Eisenhower vs. Warren also forces readers to consider whether and when a public figure should go all in and decisively back a major policy shift. Eisenhower believed in incremental change, driven by social progress rather than law. He demanded intolerable levels of patience from African Americans, who had already waited centuries for equality. Warren, by contrast, recognized that America’s formative pathology—its racism—was a terminal cancer that must be dealt with urgently. He engineered the boldest stroke against segregation since Reconstruction. Brown prompted a mighty backlash, but to Warren the decision was the constitutional tradition at work. He wrote that legal principles “should not be compromised and parceled out a little in one case, a little more in another, until eventually someone receives the full benefit.” More than 60 years after Brown, the full benefit remains elusive. If Warren and Eisenhower were alive today, they might ask not whether the Court went too far, but whether it failed to go far enough.

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