It's Friday, Sept. 15, 2023, and the day of the week when I share a quote meant to be uplifting or enlightening. Today's words of wisdom -- and they were self-critical -- come from Earl Warren, a California lawyer who dedicated most of his working life to government service.
It is believed to have been on this date 71 years ago that Dwight Eisenhower and Earl Warren spoke on the telephone. Although both men would soon ascend to the pinnacle of U.S. politics, they were already quite accomplished.
Warren, a progressive Republican, had been a crime-fighting district attorney in Alameda County, a popular attorney general, and was at the time governor of California. As Thomas Dewey's running mate, Warren had nearly been elected vice president in 1948.
Four years later, Gen. Eisenhower, or "Ike," as he was known by an adoring public, had wrested control of the Republican Party from Robert Taft, and along with it the GOP presidential nomination.
Like a long list of characters that includes Ross Perot, Herman Cain, Carly Fiorina, Ben Carson, Vivek Ramaswamy -- and, of course, Donald Trump -- Eisenhower thought his first job in elective politics should be the top job. (Unlike the other names on that list, Ike's resume included conquering Nazi Germany, but I digress.)
No one knows for sure what Dwight Eisenhower and Earl Warren discussed in their September 15, 1952, phone call, but in a later oral history, Warren aide Merrell F. Small said it was during that conversation that Ike first broached the possibility of Warren serving on the U.S. Supreme Court.
Some of Eisenhower's aides put the timing of that offer months later, but the long and short of it is that Eisenhower did put Warren on the high court, and made him chief justice -- and that California's former governor was the decisive vote on a host of 5-4 decisions that remade American jurisprudence.
In a previous morning note essay published the day before the anniversary of Dwight Eisenhower's fateful phone call with Earl Warren, I wrote about Fred Korematsu and the internment of Japanese-Americans during World War II. Korematsu's case went all the way to the Supreme Court, which decided it wrongly, if I may say so.
Although Warren was not yet on the court when the case was decided, he figured in that shameful legal episode in another way: As state attorney general he oversaw California's civil defense efforts. In that capacity, Warren helped rally support for the relocation of Japanese-American families, and defended Franklin D. Roosevelt's executive order implementing it.
Roosevelt did not live long enough to revisit this appalling abrogation of civil liberties -- FDR did not survive the war -- but Earl Warren certainly did, and in his 1977 memoir he expressed deep regret for his role in the removal order.
Did these pangs of conscience contribute to Warren's jurisprudence when Eisenhower made him chief justice? Legal scholars have wondered about that. It should be noted that when Warren was a crusading prosecutor in the 1930s he was never once reversed by the appellate courts, showing that he was always cognizant of defendants' rights. Yet it is also matter of historic record that Warren guided the Supreme Court through an era of expanding civil rights in which he was often the deciding vote.
The names of some of these cases are known to many Americans who have never been near a law school: Brown v. Board of Education; Miranda v. Arizona; Gideon v. Wainwright. When C-SPAN set about identifying 12 historic Supreme Court decisions for a 2015 series on the cases that define American jurisprudence, it chose four Warren Court decisions (as well as the Korematsu case).
As for the president who appointed Earl Warren, there is evidence Ike wasn't all that pleased with the high court's activist jurisprudence. Eisenhower would barely pass muster as a modern-day GOP conservative, but he certainly favored judicial restraint, which wasn't the Warren Court's calling card.
A famous quote attributed to Eisenhower captures this concern: "I have made two mistakes, and they are both sitting on the Supreme Court." This is a reference to Warren and William J. Brennan, whom Eisenhower appointed in 1956.
In private, Ike could indeed be caustic, but the sourcing for the wording of this quotation isn't airtight. Its original provenance seems to be retiring Justice Harold Burton who spoke privately with Eisenhower in 1957. Although Burton kept a diary, his entry for that conversation contains nothing so colorful. It does include a similar sentiment, however. Eisenhower, he wrote, "expressed disappointment at the trend of decisions of [the] Chief Justice and Brennan."
Others, including the lawyers who defended Fred Korematsu, viewed the Warren Court differently. They saw its determination to protect the rights of the accused from the unfairness of a powerful -- and sometimes overreaching -- government as something akin to atonement on the part of the chief justice.
Earl Warren's own words about the treatment of Japanese Americans during World War II lend credence to that interpretation.
"Whenever I thought of the innocent little children who were torn from home, school friends, and congenial surroundings, I was conscience-stricken," Warren wrote in his memoir. "It was wrong to react so impulsively, without positive evidence of disloyalty."
And that's our quote of the week.
Carl M. Cannon is the Washington bureau chief for RealClearPolitics. Reach him on Twitter @CarlCannon
