Ike's Mistake: The Accidental Creation of the Warren Court

William Fassuliotis ‘19
Guest Columnist

            When General Eisenhower was inaugurated in 1953, he became the first Republican president in twenty years. Presidents Roosevelt and Truman would appoint twelve justices,[1] drastically changing the character and ideology of the Court. Except for Justice Harold Burton, whom Truman appointed as a gesture of bipartisan goodwill, every justice on the court was a Democrat. While Eisenhower was no ideologue, he would explain to advisors, in public, that “My [Ike’s] principal concern is to do my part in helping restore the Court to the position of prestige that it used to hold, and which in my opinion was badly damaged during the New and Fair Deal days.”[2] Eisenhower would appoint five justices, enough to recreate the Court’s character and ideology. Whatever Ike expected, the coming judicial revolution certainly was not it.

As then-Vice President Nixon looks on, Earl Warren administers President Eisenhower his second oath of office in 1957.  Photo courtesy Dwight D. Eisenhower Presidential Library.

As then-Vice President Nixon looks on, Earl Warren administers President Eisenhower his second oath of office in 1957.

Photo courtesy Dwight D. Eisenhower Presidential Library.

            Spearheaded by Chief Justice Earl Warren and Associate Justice William Brennan, the Warren Court radically expanded the reaches of the judicial power and altered constitutional law in a way that reverberates to this day. The changes were legion, including a constitutional right to privacy,[3] the right to remain silent,[4] the elimination of official school prayer in public schools,[5] desegregation,[6] and much more. Warren was the leader of the liberal wing; Brennan would provide its intellectual underpinnings. After he was no longer president, Eisenhower purportedly said, “I have made two mistakes, and they are both sitting on the Supreme Court.” Or that Warren’s nomination was “the biggest damn-fool mistake I ever made,” or that his biggest mistake was “the appointment of that dumb son-of-a-bitch Earl Warren.” Historians argue whether or not Eisenhower ever said any of the above. But the statements reflect how Eisenhower and many others felt. How then, if Eisenhower did not intend a revolution, did he ignite one anyway? The answer lies in two elections: the 1952 and 1956 Presidential elections.

            Despite his overwhelming popularity among the American people, Ike was not assured the Republican nomination in 1952. After being convinced by the Draft Eisenhower movement to run, his main opponent was Senator Robert Taft of Ohio, son of President and Chief Justice William Howard Taft. Known as “Mr. Republican” for his stalwart conservatism, he and his supporters believed that after scores of failed dime-store New Deal candidates, only a true conservative nominee could put a Republican in the White House after a generation of failure. Like his father forty years before him, Taft controlled the party machinery, hoping to best a less conservative but more popular opponent. When the convention opened in Chicago–– coincidentally the same city as the Taft-Roosevelt convention years before––neither Taft nor Eisenhower definitively had a majority of the delegates. Enter Warren.

In 1952, Earl Warren was in his third term as Governor of California. A Republican, he started his public career as District Attorney of Alameda County. Appalled by the corruption he saw in state government, he busted bribe-taking politicians and officials, cracked down on crime, and ran his office in a professionalized, non-partisan way.[7] He would keep these attributes as he ran successfully for California Attorney General[8] in 1938, then Governor in ’42, ’46, and ’50. He campaigned and governed as a fiscal conservative but a progressive social reformer, winning acclaim and praise within the state and without as “an able, incorruptible administrator who has built up enormous public faith in his honesty and political integrity.” He was so popular that in his first campaign for reelection, he won both the Democratic and Republican primaries, running virtually unopposed. Such success led him to talk of presidential aspirations. Warren was Thomas Dewey’s ticket mate as vice-president in the 1948 election, best remembered as the erroneous “Dewey Defeats Truman” election.[9] This was the only election Warren would ever lose.

            With such success, Warren declared himself a candidate for President in 1952. As California’s “favorite son,” he was assured of its seventy-odd delegates, on the first ballot at least. Warren hoped that if Taft and Eisenhower deadlocked, both would lose momentum and he could be the compromise candidate. Enter Richard Nixon. If you may allow a bit of editorializing, I believe that Nixon is one of the most important figures in Supreme Court history to never have sat on the bench. He will figure prominently in many future articles. Forty years old at the time, Delegate Nixon was California’s junior senator. Despite this, there was little love lost between the two. Both won overwhelming statewide victories in 1950, attracting independents and Democrats, but in very different ways. Warren won through policies appealing to the center; Nixon won by painting his opponents as communist sympathizers and accusing his opponent in the 1950 Senate election as “pink right down to her underwear.”

            Nixon, nominally pledged to Warren on the first ballot, let it be known in private that he truly supported Eisenhower. In return, viewing Nixon as a young, energetic candidate who could unite the conservative elements of the party, Eisenhower’s campaign staff offered him the vice president spot if he could get California’s support. Warren’s biographers portray Nixon as a backstabber, looking out for only his own ambition. In fairness, Warren refused to endorse Nixon when he first ran for Congress and only tepidly supported Nixon’s run for Senate. There was little reason for Nixon to be loyal to Warren, and both would detest each other for the rest of their lives. (Stay tuned for future articles on this.)  

            Senator Nixon played a crucial role in getting California to adopt the “Fair Play Amendment” during the convention. Complicated and arcane, the amendment involved something called “the Texas Steal” and two competing delegations from southern states, one for Taft and one for Eisenhower, trying to get seated at the convention. A vote for “Fair Play” was in essence a vote for Eisenhower and would come close to securing him the nomination, thus ending Warren’s chance for the presidency. In the end, the Fair Play Amendment won, and Eisenhower cinched the nomination on the first ballot.[10] Had Warren become president, vice president, or some other spot, there would be no Warren Court. Ike would easily win the election.

            Eisenhower, however, was impressed by Warren. When discussing his ideal justice, he told advisors he wanted on the court “a man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.” In other words, he was looking for a “statesman.” The historical record is mixed, and will perhaps never be known. Some sources report a quid pro quo agreement, such that Warren would vigorously campaign for Eisenhower in exchange for a spot on the Court. I do not find these claims to be overly credible. Warren fit many of the attributes Ike listed and Ike seemed to have a genuine respect for Warren and thought him to have similar “middle of the road” philosophy. Eisenhower called Warren to tell him Ike considered him for Attorney General, but decided to go elsewhere. Warren claimed that afterwards, Ike said, “I want you to know that I intend to offer you the first vacancy on the Supreme Court.” In any event, Warren believed he had been promised a spot on the Court. On September 8, 1953, Chief Justice Fred Vinson suffered a heart attack and passed away at the age of 63.[11] After some hesitation (Eisenhower thought there was some difference between being promised an Associate position versus the Chief Justice; Warren adamantly said there was not), Ike put Warren on the Court through a recess appointment in time for the 1953 October term. Warren was confirmed by the Senate by a voice vote on March 1, 1954. The rest, as they say, is history.

            Sources include Stephen E. Ambrose’s “Eisenhower: Soldier and President”, James F. Simon’s “Eisenhower vs. Warren”, and Ed Cray’s “Chief Justice: A biography of Earl Warren.” Next time, Eisenhower’s other “mistake”: Justice Brennan’s path to the high court.

[1] Eight and four justices, respectively. This excludes FDR’s elevation of Harlan Stone, a Coolidge appointee, to Chief Justice.

[2] This was in part a reaction to Truman appointing buddies and, for lack of a better word, cronies as Justices.

[3] E.g., Griswold v. Connecticut, 381 U.S. 479 (1965), and Katz v. United States, 389 U.S. 347 (1967).

[4] Miranda v. Arizona, 384 U.S. 436 (1966).

[5] Engel v. Vitale, 370 U.S. 421 (1962).

[6] E.g., Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[7] Although some of his prosecutorial methods would later be found unconstitutional by his Court.

[8] His tenure as AG shamefully included the internment of Japanese-Americans that ended up being upheld in Korematsu v. United States. It is life’s ironies that one of the drivers for internment would also be the architect of ending legally-enforced racial segregation, though some biographers argue that his later regret over internment led him to be a forceful opponent of segregation on the bench.

[9] Dewey and Warren rather famously did not get along very well. Nina Warren, Earl Warren’s wife, voted for the Truman ticket, disliking Dewey and not wanting to see her husband become Vice-President.

[10] If interested, John Dickerson’s “Whistlestop” has a great two-episode podcast on the convention, titled ”Eisenhower, Taft, and the Texas Steal”, and ”Eisenhower, Taft, and the Wizard of Ooze.“ Strongly recommend them.

[11] Vinson was appointed by Truman in 1946. He was the last Chief Justice appointed by a Democratic President. Truman and Vinson were great poker buddies, and Vinson was likely appointed in part because of that relationship.