Landmark Brown Decision Came As
No Surprise To Chief Justice's Son
By John Bachman
Photos courtesy of the California State Archives.

It was a sunny fall Saturday morning back in 1953, the kind of day that's lousy for duck hunting but great for talking to your dad, and Earl Warren Jr. was sitting with his father in a duck blind in a rice field north of Sacramento.

The Warren family enters the Governor's mansion in January 1943 after Earl Warren's election as Governor of California.

The younger Warren, age 23 at the time, sensed there was a reason he had been paired that morning with his father, who had just been recently appointed to the United States Supreme Court after serving as California's Governor and Attorney General and as Alameda County District Attorney.

The elder Warren said there was something the Supreme Court needed to do in an effort to correct the inequities that had infected and degraded the country's segregated public education system under the "separate but equal" doctrine of Plessy v. Ferguson. The court had several cases on its docket attacking the doctrine in public education, headlined by Brown v. Board of Education.

Warren told his son he did not know how the issue would be resolved. "'We have before the court some cases that involve segregated schools. I know that you know how I feel about these things. But I'm still not sure what the Constitution will allow me to do,'" the newly-appointed Chief Justice told his son.

"He said it very sincerely," Earl Warren, Jr., a retired Sacramento Superior Court judge, recalled in a recent interview at his home. "It weighed very heavy on his heart. Anytime he had something to say that was important, he said it very sincerely. My guess is my dad suggested we be paired together that morning."

Vice-Presidential candidate Richard Nixon, Presidential candidate Dwight Eisenhower and Governor Warren in a photo taken in October 1952, one month before the presidential election and one year before Warren took over as Chief Justice of the United States Supreme Court.

Some commentators, pointing to Warren's Republican background and years as a prosecutor before being appointed Chief Justice by President Eisenhower, expressed surprise that Warren's name and the Supreme Court he led became synonymous with decisions that championed the rights of minorities (Brown), criminal defendants (Miranda and Gideon) and voters (Baker v. Carr).

For Warren's son, Brown came as no surprise. While his father may have been somewhat conservative in his personal style and in some aspects of his politics, he was a strong and consistent proponent of civil rights.

"We were raised to know what a terrible thing it was that people were treated differently in various places in this country," he said.

The Chief Justice taught his children not to avoid problems. "'You cannot run away from anything,'" Warren Jr. recalled his father saying. "'If you run from something it will always be on your mind and you are going to have to deal with it.'"

When Warren headed to Washington in 1953 he knew the court was scheduled to grapple with the Plessy v. Ferguson "separate but equal" doctrine that in reality was separate and unequal.

His son said that the Brown decision paved the way for later cases because it was decided so early in his father's tenure as Chief Justice. It was a divisive case where a decisive and unanimous decision was needed. Later important constitutional pronouncements may have flowed more easily after the precedent of Brown.

"So many things that followed could not have followed had it not been for that decision," Warren Jr. said.

The Chief Justice recognized future courts would make modifications and even possible inroads on the Warren Court decisions. But he also believed the constitutional landscape had been altered forever.

"At the time he retired, he felt that an umbrella had been opened over the major constitutional issues," Warren Jr. said. "Future courts might move a little under the umbrella, but they would never close it back up."

Amazingly, Brown was a unanimous decision. Warren worked hard to make it so, knowing the country would benefit from clear moral and legal direction from the court. Getting that required enormous powers of persuasion on the part of the Chief Justice.

"He was a compelling personality with a great sense of how much and how little should be said," his son noted. "He was not a wild-eyed theorist oblivious to the law. He was a great student of the law and the Constitution."

And the Chief Justice also had a strong belief in the manner in which the law should be rendered. He believed that any decision or law should be written in plain English so it could be understood by ordinary people. This focus is perhaps not surprising since Warren himself had risen from humble roots.

Born in 1891 in Los Angeles, he was the son of a Norwegian immigrant railroad worker, and grew up in the Bakersfield area. He attended UC Berkeley, obtaining his law degree prior to serving in World War I. Upon return from the war, he took positions first in the Oakland City Attorney's Office and then in the Alameda County District Attorney's Office. In 1925, he was appointed to an interim position running the Alameda County District Attorney's Office. He later won re-election three times to the position of District Attorney.

Warren was a liberal Republican when he was elected California Attorney General in 1938. During his tenure as a law enforcement officer, he garnered a reputation as a strong foe of racketeers while being honest, efficient and fair-minded. During his years as a prosecutor, his office "never extracted an involuntary confession from a defendant. Anyone who wanted to see his lawyer before submitting to police interrogation was permitted to do so. No conviction ever won by Warren's office was thrown out on appeal by a higher court." wrote Richard Kluger in his book Simple Justice.

Warren was later elected governor of California in 1942, and re-elected in 1946 and 1950. He was governor when President Eisenhower nominated him as Chief Justice. Initially, some liberals were skeptical of Warren. Justice Felix Frankfurter was supposedly outraged the president would appoint a mere politician, with no judicial experience, to the court.

Warren Jr. said his father was a great student of the Constitution. The Warren Court's interpretations of that Constitution, however, led to calls for the Chief Justice's impeachment. Warren Jr. said his father knew that his decisions, including Brown, would be resisted by various segments of society, but that realization did not deter him. As the Chief Justice famously put it, "Everything I did in may life that was worthwhile, I caught hell for."

Chief Justice Warren also headed the commission that looked into the assassination of President John F. Kennedy and retired from the court in 1969. He died in Washington in 1974.

Warren had a reputation for not only straightforwardness and honesty, but also for having a warm sense of humor and a great memory for names, which he used to not only remember the names of the powerful and influential, but also the support staff everywhere he worked, from secretaries to janitors. Those traits, along with the "supernatural sense of when to move in on a situation and when to hold back" and the ability "to make and stick to a decision" resulted in staff members that were fiercely loyal to him, Kluger wrote in Simple Justice.

Warren Jr., now 74, followed in his father's footsteps as a jurist. He spent much of his youth in the Sacramento area, graduating from UC Davis in 1950 with a degree in agriculture. He went to work as a farm advisor in Alameda County, becoming recognized as a national expert in animal husbandry. In 1956, he decided to go to law school in part because he felt like he was running away from the law because of his father's prominence and because he became a nationally recognized expert in animal husbandry so quickly.

He operated a private practice from 1961-66, before being appointed to the bench by Gov. Edmund G. "Pat" Brown in 1966. He served on the Sacramento Superior Court until 1993.

Warren Jr. lives in Sacramento and remains active. An avid runner throughout his life, a bad knee limits his running, but he stills cycles for exercise.

The author, John Bachman, is a Deputy Attorney General in Sacramento.