Conference on the Warren Court

Conference on the Warren Court
Heyns Room, Faculty Club
February 26, 2004

Conference on the Warren Court

By Robert M. Berdahl
University of California, Berkeley

Good evening, and welcome to all of you who have assembled to assess the impact of the Warren Court on this fiftieth anniversary of Brown vs. Board of Education. It is a pleasure to join you this evening. With so many legal scholars here, including four members of the Boalt Hall faculty who clerked for Warren, there is little that I can add of substance to your deliberations other than merely to welcome you.

However, the prospect of speaking here tonight has caused me to read some of the biographical material about Warren and to reflect a bit on him and his role in the state of California and the nation as a whole. So, if you will permit me, I will add a few ruminations of my own about the man.

In this age of bitter partisan politics, it is easy to forget that it was not always so, that there were times that some of us are old enough to remember, when political leaders actually sought common ground and public good other than mere political advantage. It may be that I have simply reached the point in life when I romanticize the past, "the good days," as it were. But I believe that there was a time when the political arena was a kinder, gentler place. There was less of an effort to find the wedge issues that would divide the electorate, and then to exploit that division. There were, to be sure, political differences -- some people hated Roosevelt and the Deal, they were often contemptuous of Truman, and the Dixicrats walked out of the Democratic Convention in 1948 over the issue of civil rights. There were fear mongering politicians like Joe McCarthy, and, of course, Warren himself suffered considerable vituperation for his role in decisions of the Court, but despite all of this, there was also a remarkable level of bipartisan collaboration.

I have often pondered on why this was so. Perhaps it was the collective trauma of the great depression and then the national effort of the Second World War that caused people to sublimate partisan differences. Or perhaps it was that special interests were less powerful in an age in which money mattered less in political campaigns. Or perhaps it was because we had leaders who struggled harder to find the public good. Whether or not such leaders were more prevalent a half century ago may be uncertain, but it is clear, I believe, that Earl Warren was such a leader and I suspect that he brought that basic sense of decency with him to the Court. He strikes me as a man of principle who sought also to be a unifier.

When running for Governor of California in 1942, he pledged to conduct a non-partisan administration. His first inaugural address stressed that "no clique, no faction, and no party holds priority in the rights of helping the common man." In his second inaugural, in 1947, he repeated the same theme, calling for "a determination to draw a sharp dividing line between public and special interests. It means we must recognize," he continued, "that a thorough consideration of human problems transcends partisanship. It obligates us to cooperate for common good without regard to party, faction, or personality."

If Warren had not actually acted on those principles, one would be tempted merely to dismiss this as political rhetoric. But even if it had been merely rhetoric, it is certainly a different strand of rhetoric than we hear today.

The second thing that strikes me about Warren is that he had the courage of his convictions. For the University of California, that courage manifested itself in the stance he took during the loyalty oath controversy in 1949 and 1950. Time certainly doesn't permit anything more than a cursory history of the loyalty oath controversy for those of you who are not from the University of California and are unfamiliar with its history. But let me outline briefly its history in order to indicate Warren's role.

During the great fear of Communist infiltration and subversion that accompanied the onset of the Cold War, the California Legislature, emulating the US Congress, created its own committee to investigate "un-American activities." As concern in the Legislature about Communists in the universities increased, University of California President Robert Gordon Sproul decided that the way to prevent legislative interference in the University, which would violate its constitutional autonomy, was for the University to introduce its own loyalty oath, which would be in addition to, and somewhat more stringent than, the general loyalty oath required of all state employees. Anticipating no faculty objections, he proposed the oath for regental approval without consulting with the faculty.

There ensued a storm of controversy among the faculty that lasted from mid-1949 through 1950 and beyond. Writing about the year of the oath, an English professor wrote, "In that year [1949-50] we went to oath meetings, and talked oath, and thought oath. We woke up, and there was the oath .... We discussed the oath during lunch at the Faculty Club. And ... at the dinner table. Then we went to bed, and the oath hovered over us in the darkness, settling sown as a nightmare of wakefulness."

During that time, the conflict between the faculty and the regents became increasingly intense, especially after the regents appeared to renege on an agreement that allowed the Faculty Committee on Privilege and Tenure to interview those faculty who refused to sign the oath to ascertain their reasons for doing so and then to recommend their retention or dismissal from the University. The regents ultimately voted in August 1950 to dismiss 31 faculty members who refused to sign the oath. After a protracted lawsuit, all of those non-signers who had been dismissed were reinstated in the University.

The loyalty oath controversy did serious, albeit relatively brief, damage to the University. A significant number of faculty members left the University and took positions elsewhere; it became difficult to recruit new faculty into this highly charged environment. Clark Kerr has written that the loyalty oath caused the greatest single confrontation between a university faculty and its board of trustees in American history. There is also a direct line of descent from the controversy over the oath to the free speech movement slightly over a decade later.

As Governor of California, Earl Warren was a member of the Board of Regents. He was, as you know, a graduate of the University, and he was a close friend of President Sproul. After his ill-advised proposal of the oath, and despite the fact that he later reversed himself when he saw the damage it caused, President Sproul basically lost control of the matter. As Sproul lost control of events, Warren stepped in to assist Sproul. He consistently fought against those who wanted to impose the special oath and he voted against it and against the dismissal of the faculty. He also demonstrated a sensitive understanding of the reasons the faculty objected to the imposition of the oath. And he defended the faculty against the attacks in the press. How easy it would have been to have ducked the issue or even to have exploited it, as Ronald Reagan did when he campaigned for governor with the promise to "clean up the mess in Berkeley."

In his Memoirs, Warren tells of his effort to persuade Norman Chandler, the publisher of The Los Angeles Times. Chandler wanted his paper to take a strong stand against the faculty. He sat with Chandler during the summer encampment at the Bohemian Grove and persuaded him that the faculty opposition to the oath was not because the faculty wanted to protect radicals and Communists, but that it was a matter of protecting their constitutional rights and the principle of academic freedom. Warren appealed to Chandler's own insistence on freedom of the press. He wrote in his Memoirs the following about the conversation:

"Everyone, I added, gave lip service to the Bill of Rights as a political philosophy but too many people were unwilling to apply it except where an infringement of it adversely affected them. For example, the slightest infringement on the freedom of religion would arouse all religionists, yet they might be totally insensitive to an abridgment of the rights of others in a different walk of life. The academic and scientific communities, to name two, had an equal concern about their right to pursue knowledge and teach the truth as they found it.
"Your own profession," I went on, "is perhaps the most vigilant in this regard, and the most militant in resisting any incursion on its right to report the news as it discovers it and to interpret it as it chooses. I would think that you would feel yourselves very much akin to the academic community, because you consider yourselves educators in the sense that you go into every home in America for the daily enlightenment of young and old alike. Because of this public service, the government gives you privileges that other citizens do not have. You have the right to send your bulky newspapers and magazines through the mail at low postage rates that are totally out of proportion to those required of other citizens. Now let us suppose that Congress proposed a statute that would deny such mailing privileges to all publishers who refused to subscribe to an oath denying they were Communists and swearing not to use their publications for Communistic purposes. What would your opinion be of such litigation?"
"You know what our opinion would be," he replied.
"I believe I do, but I want you to tell me."
He said, "Of course, we would be against it."
I asked why, and he responded that if publishers subscribed to such an oath, some bureaucrat in Washington would be scrutinizing everything written and would censor it according to his views on whether or not it was in the interests of Communism.
"Norman," I said, "you have just made the case for the university faculty. They contend that if they sign such an affidavit, some bureaucrat or legislator or lobbyist in Sacramento will be constantly looking over their shoulders and trying to find subversion in their teaching, and this would be in violation of academic freedom. And we both know that in the present atmosphere that is bound to occur.

My guess is that similar acts of persuasion also occurred in the chambers of the Supreme Court.

One final note on Warren's decency and political courage. In 1967, after the regents dismissed Clark Kerr as President of the University of California at the insistence of the newly elected Governor of California, Ronald Reagan, the Berkeley faculty organized a large convocation protesting Clark Kerr's dismissal. It was held in the Greek Theatre here on the campus with an overflow crowd. Speakers included John Kenneth Galbraith, the Harvard economist and Berkeley alumnus; Richard Hofstadter, a distinguished historian from Columbia; and Earl Warren, Chief Justice of the US Supreme Court. Warren came to Berkeley to honor Kerr, despite FBI admonitions, in the full knowledge that his appearance was an affront to his fellow Republican, Ronald Reagan. It may seem to be a small gesture, but I submit that it was a wonderfully decent thing to do, reflecting Warren's courage in his conviction that doing the right thing is more important than doing the politic thing. He was a rather remarkable man.