The dubious invention of Judicial Activism is to blame for Charles Pickering’s defeat this month; partisan obstructionists, emerging victorious from their battle to keep “moderation” on the bench, have as much as said so.[1][2][3][4] Give the left credit for their brilliant sucker-punch! Once the nomination was buried, any discussion about judicial makeup, moving “courts to the right,” etc., vanished faster than a sidearm in a Spielberg movie. Now we’re back to thinking about Yassir Arafat, racial profiling at the airports, and Britney Spears’ chest.

 

The issue won’t be absent long. There are 99 vacancies on the federal bench – that’s nearly 12%.[5][6] And this is an election year. We should expect an invasion of invitations to support the goal of Judicial Activism, which in summary is this: to compress an awesome amount of political power onto a minimal number of officers, who in turn answer to no higher authority for their actions, and whose edicts are beyond appeal.

 

We now have had 48 years to get acquainted with Judicial Activism. Is the honeymoon still on? Not likely. To attract support, advocates must name it by euphemism: “Woman’s right to choose,” “I believe the constitution is a living, breathing document,” “law must change to fit the context of times,” etc. This is like a cancer upon our government. Like all diseases, it is hard to detect and has no effective cure, until it is understood. The electorate doesn’t understand it; education is key to fixing that. Plato once said, “those who are too smart to engage in politics are punished by being governed by those who are dumber.”

 

Like Adam and the apple, our flirtation with Judicial Activism is the story of a fall from grace. To understand how it came to be, it is necessary to explore the life of its patriarch, which is in itself the story of another fall from grace. This man was one of the most dedicated, capable and heroic district attorneys we ever had. Like many figures of history that come to do more harm than good, he passed a crucial turning point when his influence grew beyond the perimeter that defined his true calling.

 

Early Life

A century plus eleven years before Pickering’s defeat - almost to the day - Earl Warren was born in Los Angeles.[7] Warren doesn’t at all resemble the limousine liberals we see today, who seek to perpetuate what he started. For the first six decades, Warren’s biography reads like that of a model conservative. The son of a railroad worker of modest means, he pulled down modest grades and attended modest schools. A midwife delivered him on March 19, 1891.[8] After his family relocated to Bakersfield, he attended Washington elementary school. His left hand was tied behind his back so he would be forced to write with his right hand.[9] In 1908, he attended college at age seventeen.[10] Achieving his Bachelor of Letters degree in 1912 and his J.D. in 1914,[11][12][13] he practiced law privately in San Francisco and Oakland from 1914 to 1918.[14][15] He enlisted as an infantry private during World War I. By the close of the war the next year, he had achieved the grade of First Lieutenant.[16]

 

A Career in Law

In 1919 he became a Deputy City Attorney for the City of Oakland.[17] From 1920 to 1923 he served as a Deputy District Attorney for Alameda County, working in the office of Ezra Decoto.[18] When Decoto resigned as D.A. in 1925 to take a job with the State Railroad Commission,[19] Warren became the acting interim District Attorney.[20] He was re-elected, repeatedly, serving at this post until 1939.[21]

 

Earl Warren’s record as District Attorney of Alameda was remarkable. He never had a conviction reversed by a higher court.[22] He had a far higher conviction rate than any other DA in the state of California.[23] His secret? He was slow going into court, insisting on a high threshold of evidence. Satisfying himself of that, he showed pertinacity that knew no bounds. But that would come later. Until that point, he continued to do his homework while most other DA’s would have been recklessly charging into court.

 

To anyone recognizing the folly of Judicial Activism, this was Warren’s downfall in his later years. As our fourteenth Chief Justice, Warren appears to have been applying the same high standard of proof to other cases as he did years earlier to his own. Trouble was, since Warren was serving as a final arbiter instead of as a prosecutor, this had the effect of throwing out convictions, discouraging law enforcement at all levels, releasing a profusion of violent criminals upon our streets, and sending national crime rates to stratospheric levels. Also, as we saw with the Pickering nomination, it injected confusion into our national reflections about the role of the judiciary.

 

It should not be inferred that DA Warren always met the standards he would demand later as the head of our Court. Actually, the notion of a 1930’s DA Warren presenting some of his cases to a 1960’s Chief Justice Warren, is bemusing. The earlier Warren’s actions could sometimes be somewhat eager and hot-headed, and many of these time-warped cases must have met with no small amount of trouble. This is the Warren Dichotomy, and finding a logical explanation for it is key to resolving what motivated the Warren Revolution.

 

Shipboard Murder Case

Warren’s career as District Attorney gained prominence with the Shipboard Murder Case. On March 22, 1936, the body of Chief Engineer George W. Alberts was found in his cabin on the Point Lobos.[24] A murder mystery tangled with union politics during the Roosevelt era, as one would expect, quickly approached a political boiling point. Warren worked quickly to name the defendants: King, Ramsay, Conner, Wallace and Sakovitz.[25] Our two political parties having assumed much the same shape they hold today, they took sides. Republicans were convinced the defendants were threats to public safety, and were about to be sprung by their political connections. Democrats contended the DA was a “reactionary Republican red-baiter” and the trial was a vicious frame-up.[26]

 

How Warren found these defendants is noteworthy, to anyone researching the Warren paradox. George Wallace, the union goon, was arrested first, in early August. Taken to a room in the Hotel Whitecotton, Berkeley, he was roughly questioned. In thick, broken English, he slowly churned out a statement implicating Frank Conner, a member of both the union and the Point Lobos crew.[27]

 

Conner was arrested on August 31 and taken to Whitecotton.[28] Unable to contact his lawyer or anyone else, he was questioned around the clock and denied sleep. Handcuffed to his chair, he suffered from ulcers, a cold, injuries from a recent auto accident, and alcoholism. After a grueling 21 hours, he sang like a bird.[29]

 

Warren took the case to trial, securing a conviction by jury on January 5, 1937. This was a turning point in his career. Soon after this, he got a call from Ulysses Webb, the State Attorney General. Webb had chosen to retire and, wanting to pass the baton, gave Warren an early heads-up so the younger man could mount a campaign.[30] Warren announced his candidacy on February 17, 1938.[31]

 

Three months after this, Warren was struck by a terrible personal tragedy that provides further insight into the Warren riddle. His father, living alone after Warren’s mother had left him, had apparently fallen asleep on the front porch while reading the paper. Matt Warren’s body was found later, dragged into his bedroom, bludgeoned to death with one of the metal pipes he kept stacked in his yard.[32] The media indulged in speculation that perhaps this was a mob hit, a message at the victim’s son. The episode memorializes Warren as a champion of the rights of the accused. He was given at least two chances to abuse his authority to identify the killer: first to issue an illegal wiretap, and then to plant a snitch in the same cell with a suspect at San Quentin. He refused. Ultimately, the murder went unsolved.[33]

 

“Admiral” Warren

Warren was elected Attorney General that year.[34] This was an achievement in itself, as with FDR’s coattails, Republican victories of any kind were a rarity.[35] That summer, Warren collared the notorious gambler and racketeer Antonio Stralla, a.k.a. "Tony Cornero.". This episode shows the perseverance of which Warren was capable once he was convinced of the strength of the evidence. Cornero operated four gambling vessels anchored off the coast of California: Rex, Texas, Tango and Showboat.[36] His operations were illegal in California, but Cornero claimed these ships were out of California jurisdiction, they being anchored more than three miles off the California coast.[37] This complied with the letter of California law, and posed a significant problem for the Attorney General, who reserved a special hatred for gambling activity of any kind.[38]

 

Energetic legal research solved this problem, Warren being able to assert that the Rex’s use of state telephone lines made it a public nuisance to the state.[39] Like the Shipboard Murder Case before, this shows that Attorney General Warren was not bound by the limits later handed down by the Warren Court, and sometimes not even within the limits of contemporary law. For example, he had his deputies place an illegal wiretap in Cornero’s home.[40] Securing the cooperation of some other agencies, he launched in invasion at sea that provided both dramatic tension and amusement. Because “Admiral” Warren was unable to immediately secure a surrender, the siege stretched out for several days. His efforts to board the ships having failed, he succeeded in blockading the passengers in. "Some husbands are on board whose wives don’t know they’re with girl friends,” he said, “and some wives must be there gambling while their husbands are working."[41] The 650 patrons were eventually freed through negotiation.[42] At the end of eight days, Cornero agreed to be towed in, vowing to settle the matter in court.[43] By December, the matter was concluded in Warren’s favor.[44]

 

The Left’s Worst Nightmare

The following year, Warren again made himself an enemy of the far left after the Chief Justice of California, William Waste, died[45] in office. Governor Olson had nominated Associate Justice Phil Gibson for the head of the court, and UC professor Max Radin to fill the new vacancy in Gibson’s seat. Warren accused Radin of being a communist sympathizer, and fought this on the grounds that Radin was “too liberal.”[46] Warren’s rejection of Radin was widely viewed to be personal,[47] and Radin himself bitterly castigated him as “a compound of Ku Klux, anti-Semitism, witch hunting, Republican partisanship, and...general cussedness.”[48]

 

The Attorney General was one of the most enthusiastic supporters of Japanese Relocation in the days before and after Executive Order 9066, in 1942. “My God!” he said soon after Pearl Harbor. “We have thousands and thousands of Japanese here. We could have an invasion here.”[49] After the order was signed, Warren seems to have thought it insufficient, waxing ominous about the “many, many Japanese who are now roaming around the State” and that their presence outside the camps “will unquestionably bring about race riots and prejudice and hysteria and excesses of all kinds.”[50] At the time, this was perceived as strong leadership contrasted with the vacillating Olson. Warren rode this issue into office that year. After he was elected Governor, his opinion became only more shrill and decisive. “If the Japs are released no one will be able to tell a saboteur from any other Jap.”[51] In June of 1943, he signed the Engle Bill, SB 140, which added stronger enforcement to the Alien Land Law.[52]

 

That we can easily recall none of this, while we are compelled to remember Earl Warren as a great Chief Justice, shows how easily the left-wing machinery can be bought. Here was a Governor whose legacy was ripe for a good liberal trashing. He waged war against communists, and those he thought were communists. He was tough on crime, as much in symbolism as in substance, so he could win election after election. He formed vendettas against people and derailed their nominations because he didn’t like their ideology. He did everything he could to put law-abiding Japanese-Americans in jail and keep them there, exacerbating an existing climate of paranoia and racism to legitimize this.

 

The left-wingers holding our history books hostage today might easily have relegated him alongside the other objects of their hissing, spitting petulance: Reagan, Nixon, Pete Wilson, Joe McCarthy. All it took to make him everlastingly a media darling, was a decade-and-a-half of liberal opinions with the force of law behind them. Because of that package, all is forgiven and most is forgotten.

 

This is Our Number-One Judge?

Governor Warren maintained his popularity during and after the War, and was re-elected to a second & third term. During his entire career, in fact, the only election he ever lost was in 1948 when he was nominated to be Tom Dewey’s running mate.[53] In late 1951, exploring his own presidential aspirations, he was sidelined with health problems. Malignancy was detected, and much of his intestine was removed. By January, he had recuperated, and announced his candidacy.[54] He lost to Eisenhower, of course, but was offered the job of Solicitor General by the president-elect after the election, in December. “I want you to know that I intend to offer you the first vacancy on the Supreme Court,” Ike said in a phone call. “That is my personal commitment to you.”[55] This must have been sacred to the obligator and the obligee, because on September 3, 1953, Warren announced that he would not run for a fourth term as Governor. The next day, a “White House source” was quoted that the first Supreme Court vacancy was his if he wanted it.[56]

 

What happened next was astonishing – breathtaking, in fact. Days later, Chief Justice Frederick Moore Vinson keeled over from a heart attack, age 63, in the middle of deciding Brown v. Board of Education.[57] The case arguments had been heard since the last December.[58] Eisenhower evidently didn’t believe the commitment he made extended to the Supreme Court’s central seat.[59] Warren clearly disagreed. Threatening to campaign all over the country denouncing Eisenhower as a liar,[60] Warren got his way. Thus, having never held a judicial office before and not being directly involved in criminal law for a decade or more, he was commissioned without Senate approval[61] as the highest judge in the land.[62][63] He was sworn in on October 5,[64] tripping over the long robe he had to borrow. “Yes, I literally stumbled into the court,” he later recalled.[65]

 

Perhaps one thing that can explain the Warren Dichotomy is that about this time, Warren began a friendship with the Meyer family. [66] This relationship appears to have influenced him heavily, perhaps even straining the Canons of Judicial Ethics. Eugene Isaac Meyer was the scion of a well-to-do family of European bankers that immigrated from France. He was born with a silver spoon in his mouth; in his much-younger years, he was paid $600 from his father simply for giving up smoking. He gained national stature by being to the World War I Liberty Bonds essentially what Michael Milken was to junk bonds, or Enron was to 401(k)’s. Through this episode, he allegedly embezzled tens of millions of dollars, but was never convicted. He went on to lead the Reconstruction Finance Corp.[67] Meyer left this post in 1933 because he didn’t like FDR’s policies.[68] That year, he purchased the Washington Post at auction and for all practical purposes became the founder of the radical-liberal paper. His wife, Agnes, was a renowned political activist, and the Meyer family was involved in an abundance of leftist causes. At this crucial point, Earl Warren’s ideology took a profound left-turn from which it never recovered.

 

Brown v. Board of Education

Ever notice how America’s left-wing “revolutions,” supposedly made out of passionate interest for the “little guy,” “common man,” “most of us,” etc., are the ones touched by the fewest pairs of hands, made most suddenly and with the least possible exposure to inspection, referendum or meaningful dissent? That was true of the New Deal in 1933.[69][70] It was also true of the celebrated “Warren Court.” Only two months after the Senate made the Chief Justice’s commission belatedly official,[71] the Court handed down Oliver Brown, et al, v. Board of Education of Topeka, KS.[72][73][74] On May 17, 1954, the Supreme Court overruled itself, holding that segregation under the “separate but equal” doctrine of Plessy v. Ferguson was a violation of the Fourteenth Amendment. Defenders of the Warren Court argue that this was the correct decision, Plessy having left no avenue whatsoever for America’s racial divisions to be healed – and Congress being powerless to overturn Plessy. Critics of the Court charge not that the decision was incorrect, but that the opinion, and the logic that generated it, showed infidelity to the purpose of a court.

 

Drawing, later, criticism for having been in collusion with the NAACP,[75] the court relied on dubious studies showing, among other things, the preference for white dolls by black children.[76] Here, the Warren Court ran into the three crises that pertain to all moral crusades: the Crisis of Loyal Dissent, the Crisis of Scope, and the Crisis of Purity of Consequence.

 

The Crisis of Loyal Dissent is that, given the assumption that the crusade is good and right and true, it logically follows that anyone opposing the crusade is bad, wrong and untrue; they must be opposed. In the spring of 2002 we see John Ashcroft accused, against the evidence, of this kind of militant thinking on a regular basis. Such accusations would more accurately have been leveled at Warren, who openly speculated racist motives on the part of anyone & everyone who opposed desegregation.

 

The Crisis of Scope is that if a little bit of your crusade is a good thing, simple logic demands an overwhelming abundance of it must be a better thing. This is injurious to the principle of restraint, which should be the hallmark of any judicial institution. In the Warren Revolution of ’54, this restraint was not merely neglected; it was forcefully jettisoned.

 

And the Crisis of Purity of Consequence is that because your motivations are civil, true and just, it becomes difficult to recognize the consequences of your actions could possibly be checkered with incivility, untruth and injustice. In the real world, nothing being completely pure, that must often be the case. Here lies the real tragedy of the Brown decision. Intended to create racial harmony, it was no less instrumental in generating racial discord.[77][78]

 

The formula adopted by the Court - requiring a "good faith" start in the transformation from a duel to a unitary school system, with compliance being accomplished with "all deliberate speed" - was a grave mistake. It has kept the Court mired in the vexing problems of progress in school desegregation for the past thirteen years.[79]

These crises invariably are outgrowths of too much moral conviction, too much zeal, and not enough thought & restraint. Associate Justice Felix Frankfurter could scarcely contain his glee. He called the recent events, back to the death of Vinson, proof that there was a God. "This is a day that will live in glory...It is also a great day in the history of the Court."[80]

 

This Court could have taken other actions that would have better fit their purpose. But under a Chief Justice thoroughly unacquainted with the role of neutral arbiter, they established the premise that the law must evolve out of necessity. “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority [emphasis mine]. Any language [347 U.S. 483, 495] in Plessy v. Ferguson contrary to this finding is rejected.”[81]

 

Show me a law written half a century ago, today’s Brown enthusiasts say, and I’ll show you a law that is wrong. Old dead guys are stupid, a bunch of dolts. No longer do we need to even argue the merits of legislating from the bench; as of 1954, it’s axiomatic. It’s a chore of maintenance, like cleaning leaves out of a gutter.

 

The nation was now on notice that Meyer philosophies, and leftist professors of sociology and political science, now ran the judiciary. In some aspects, life in America would never again be the same.

 

"...the [Vinson] Supreme Court was unable to relate the findings of the social scientists to the claims of racial and religious minority groups under the Constitution; but two years later the Court set forth as authorities in the Brown opinion the subjective views of a group of leftist social scientists, citing as a constitutional basis for the opinion the Fourteenth Amendment..."[82]

 

Mapp v. Ohio and Baker v. Carr

Having laid that cornerstone of activism in deciding issues of education, the Warren Court turned its attention toward the issue of crime. On May 23, 1957, police entered the home of Dollie Mapp without a warrant.[83] They were acting in an emergency capacity, acting on a tip that a suspect was hiding out there. They failed to find the suspect, but did find pornographic materials outlawed according to local statute. Mapp v. Ohio therefore was the case of illegal contraband discovered during an illegal search. The Warren Court here created the “exclusionary rule,” finding in a vote of 6-3 that illegal gathering of evidence has a “tainting” effect on the evidence. In the eyes of the law, therefore, the evidence proves nothing – even though logically, the evidence may have proven everything.

 

One wonders what Tony Cornero could have made of that, had his case simply materialized a quarter-century later than it did. The search of Dollie Mapp’s home was as egregious as it was illegal. It could have been struck down in a decision that pertained only to that case, or only to cases rising to that high level of impropriety. But no, Warren created a new rule that covered practically all criminal cases. No longer were district attorneys simply compelled to follow the law; now they were faced with the threat that, their failing to do so, their accused would become innocent in the eyes of the law even after their guilt was logically proven.

 

In 1962, in deciding Baker vs. Carr 6-2, the Warren Court addressed the issue of apportionment of votes. This was critical because the apportionment question was usually framed as a legislative question, well outside of the judiciary. The Court ruled here that it had power to oversee any and all legal matters in the country – there was nothing outside its discretion.[84]

 

Where Brown established that there was no logical leap too profound for the court to transcend, Baker, pouncing on the situation of a 22:1 apportionment discrepancy,[85] confirmed there was no matter too legislative in nature for the Court to oversee. Simultaneously, Warren gave further ammunition to his defenders, who could now argue the hopeless situations of downtrodden classes had the judiciary had not stepped in to help them.

 

Gideon v. Wainwright

That January, Clarence Gideon presented his case to the Supreme Court.[86] Gideon had broken into a Florida pool hall to steal beer. Gideon’s judge had claimed the right to counsel pertained in that jurisdiction only to capital offenses.[87] Gideon’s case arising outside of that realm, he was convicted while acting as his own attorney.

 

Yet the Sixth Amendment states “In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence.”[88] What to do? Simply finding in Gideon’s favor was insufficient; the Court, again, enlarged the scope of impact as broadly as possible. The decision afforded Gideon a new trial[89] and freed hundreds of violent criminals in Florida, and in other states as well.[90] This is where Warren’s career as District Attorney did injury to his effectiveness as Chief Justice. He was a smashing success in those old days, because he was so slow to bring cases to court. Once he was entrusted to oversee the judicial process in the entire land, he apparently held other DA’s to the same high standard – one can just hear him muttering “I never would have brought this…” So he threw them out – but – it wasn’t enough to throw out just that case. His court threw out entire classes of cases.

 

From 1960 to 1964, the Supreme Court heard 33 important cases where crime overlapped with race relations. Eager to establish itself as a friend of the accused, no doubt as a result of the influence of Eugene Meyer, the Court found for the defendant 31 times.[91]

 

On November 22, 1963, President Kennedy was assassinated in Dallas, TX. With Executive Order 11130, the new President Johnson created the 7-man commission to glean the facts of the case. Warren was approached to head this commission, so the office of Chief Justice could be used to attach a veneer of legitimacy to the findings. Warren demurred, but within a short time was convinced to go along. The Warren Commission has been heavily criticized for reaching the right conclusion first, and finding substantiation later. Interestingly, that’s the criticism leveled at a lot of Warren Court rulings.

 

Miranda v. Arizona

In 1966, the Court heard Miranda v. Arizona. Ernesto Miranda had been arrested on March 13, 1963, for raping an 18-year-old mildly retarded woman; her stolen Packard was found in front of Miranda’s house later.[92][93] On February 28, 1966, arguments began[94][95] in the Supreme Court. The appeal was based on the argument that police had coerced Miranda to confess, while the prisoner was unaware of his rights.

 

The argument was delusive since there was no real coercion involved. In summary, the defense didn’t think Miranda was coerced – the attorney simply thought Miranda did something dumb, and wasn’t happy with it. Why not take a shot at Warren Court Roulette? On March 4 Warren himself – by this time growing into the job of creating permanent law beyond repeal, with the merest spark between his ears – proposed that law enforcement must issue a four-part warning from the moment they arrested a suspect.[96]

 

From this feeble argument blossomed forth, thanks to the eleventh-hour seating of President Johnson’s faithful stooge Abe Fortas, the famous 5-4 decision on June 13. Justice Brennan, joining the Chief Justice but sensitive to the criticism that would come later, proposed relaxing the “rules” and leaving the lawmaking up to the state legislatures. Warren would have none of it.[97] Before it was over, the Court had the gall to hand down a 61-page “interrogation manual.” This was a baseline. Legislatures could go beyond, but they could do nothing less.[98]

 

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination...Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.[99]

 

Like Gideon, this decision threw vicious criminals out of custody all across the country, in anticipation of burdensome new standards now expected at trial.[100][101] Oscar Jahnsen, Warren’s old deputy who obtained Conner’s confession during the Shipboard Case, said the Court was “now making unreasonable demands” on police.[102] No doubt Jahnsen was cogitating over the application of this rule in 1936. Fred Graham, Supreme Court reporter, criticized the opinion as well as the new trend under the Warren Court:

 

Gideon v. Wainwright, a constitutional right to counsel in felony cases at a time when all but five states already provided it; Mapp v. Ohio had extended the exclusionary rule to illegal searches after roughly one-half of the states had adopted the same rule; Miranda was to impose limits on police interrogation that no state had even approached prior to the Escobedo decision.[103]

 

An Ignominious End

In addition to the hundreds of accused set free as a direct result of the Warren rulings, tens of thousands more escaped a legal system that was becoming fettered and discouraged. Between 1960 and 1970, the number of murders and rapes each year almost doubled.[104] The number of property crimes nearly tripled.[105] In 1968, it became clear that America had had enough of the liberal policies being issued from all three branches of government; savvy politicians began to take note. President Johnson, in a major surprise to his closest advisors, announced in March that he would neither seek nor accept nomination for the Presidency. Seeing the writing on the wall, Warren announced he would retire that year to ensure that a liberal Democratic president could name his successor. Never mind that America had voted, 301 electoral votes to 191,[106] not to have this happen. Warren and his defenders were deeply entrenched in the Crisis of Loyal Dissent, and the opposition had to be crushed, not simply scotched – public opinion be damned.

 

To protect the liberal crusade and it’s three crises from the will of the American electorate, Johnson named Abe Fortas – quickly – to Chief Justice. Fortas was no more burdened by scandal than could be expected of any Johnson lackey, which is to say he was up to his eyeballs in it.[107] After surviving committee 11-6,[108] his nomination was stopped by a filibuster led by Senator Nixon. On October 1, 1968, the Senate failed to invoke cloture, and the Fortas nomination was doomed.[109] Johnson withdrew the nomination at Fortas’ request.[110] Warren therefore resumed his seat on First Monday, at age 77, in lieu of allowing it to remain vacant.[111]

 

The enmity between Warren and Nixon had to have been festered by the referendum that was Nixon’s mandate – his election was proof that America wanted no more of what Warren had to offer. On January 20, 1969, Warren was compelled to face his nemesis eyeball-to-eyeball, and swear him in to the highest office in the land. Five months later, Warren retired on June 23. A month before that, the humiliated Abe Fortas had thrown it in,[112] becoming the first Supreme Court Justice to resign under pressure.[113] Nixon was allowed to name successors for both.[114] Perhaps failing to fulfill his mandate, Nixon nominated Warren Burger as Chief, and Harry Blackmun to Fortas’ seat.

 

In declining health, Warren enjoyed what he could out of his retirement, suffering a fatal cardiac arrest five years later. It was the early evening of July 9, 1974, and he was watching his old enemy’s presidency self-destruct.[115] The print media, living through a “revolution” of it’s own, waxed lyrically about the Warren legacy. It had been very good for them. I’ve often said the ideas that generate the most news, are the ones least likely to solve a problem. Vendors of news have no problem with the creation of an abundance of news, whether the problem remains or not. Earl Warren, they said, was one of the greatest Chief Justices, if not the greatest, in the history of our republic.

 

What must you believe, to maintain this? A lot of things, as it turns out.

 

The Warren Court Credo

First, you must subscribe to the doctrine of judicial activism. Your fidelity to this must be unwavering, since for those of us who don’t think it’s all-that-and-a-bag-of-chips, there is very little in the Warren years to warrant promotion to greatness or even to adequacy. As a judicial activist you must accept Al Gore’s statement that the Constitution is so much mush, to be changed with the context of times.[116]

 

Second, as a judicial activist you must believe that the Supreme Court has a purpose completely redundant with that of the legislature; yet it’s autonomous existence, outside of the legislature, is somehow compulsory. The favorite way to rationalize this is by contending that there are certain minorities who are not properly represented in the legislature, and somehow never can be. Your perspective of the judiciary, therefore, has to be of some special congress for the indigent, oppressed, and downtrodden. You must recognize this in spite of the fact that, every two years, our real legislature bends over backwards to get votes from these same indigent, oppressed, and downtrodden.

 

Third, lacking any political mechanism to ensure the Court’s fidelity to the will & consent of those it represents, you have to accept without question that the actions of the Court are somehow bound to that will & consent. You must accept this even while acknowledging, consciously, that justices are appointed for life and by design beholden to no one. You must reinforce the argument that, while the President and Congress are validated by elections that may involve counting & recounting Palm Beach ballots, ad nauseum, the justices must possess some invisible machinery to receive direction & approval from these "constituents" they represent. Perhaps it’s something magical. Perhaps it’s something in the food they eat or in the water they drink.

 

And finally, to a certain extent you must accept George Washington’s conservative/libertarian warning that "Government is like fire - it is a dangerous servant and a fearful master."

 

The only caveat is, you must apply this danger with horse-blinders, only to people accused of committing a violent crime. In other words, you must believe that taxpayers do not need to worry about a tyrannical government, especially if their income is in the highest two tax brackets. The same must go for people doomed from birth never to qualify for affirmative action favoritism; people who own dot-com stock that has done fabulously well, and in so doing has stuck them with a capital gains tax liability they can’t pay; people who home-school their kids, or send them to parochial school, and are looked upon with prejudice and scorn by the teachers’ unions; people who have some pressing reason to pay out of their own pocket for superior medical care; people who live in high-crime areas and choose to own a gun to protect themselves. You must ignore the fact that these people – and more – have indeed, in recent years, been subject to deleterious treatment by their own government.

 

You must uphold that the people I have named above are exempt from Washington’s caution; you must believe they enjoy the purely benevolent protection from a government that is everlastingly friendly to them, yet at the same time poses an unceasingly dangerous threat to those accused of a violent crime. That is what you must believe.

 

Liberals Get to Tell the Story

The Supreme Court sits in a blind spot of national deliberation. We’ve had 43 Presidents and sixteen Chief Justices. Most Americans, from the laity to the seasoned, can recall by name a greater portion of the 43 than the 16. From that murky tabula rasa, there emerges a handful of Chief Justices widely acknowledged to have been great. Some, like Charles Evans Hughes, are honored out of ideologically neutral reverence for our judicial process. Others, like Earl Warren, are valued because liberals want them to be valued; the rest of us allow the liberals to get away with it.

 

How did a hell-bent-for-leather Attorney General become a bleeding heart Chief Justice, legislating one new entitlement after another in favor of criminals? Liberals have taken the lead in explaining this. Across this stretch of time, they say, the two Warrens did in fact maintain a consistency that explains all: a passionate dedication to the rights of the accused. That would be a satisfying and convenient reconciliation, but the facts don’t support this.

 

There are too many events in the earlier days that contrast with this gritty determination to hold the defendant’s rights sacrosanct. Warren knew it was illegal to wiretap Cornero’s home; he was told so. He elected to do it anyway upon being satisfied he wouldn’t get caught, not that the method was satisfying Cornero’s lawful protections. Frank Conner, of course, was tortured for a full day, without the consultation he needed, both legal and medical. And today it is obvious that the Japanese citizens were entitled to a bounty of constitutional protections which, with the advice of aspiring Governor Warren, were ignored.

 

No, the evidence says that like any flawed mortal, Warren was undergoing a process of change. It was not altruistic change, but pragmatic change befalling a pragmatic man. There were powerful political currents in the 1960’s, and the most politically astute succumbed most quickly to these realities. Better known for his political acumen than his intellectual fortitude,[117][118] Warren was no doubt strongly accelerated in this direction by the shrill Meyer family when he was first seated on the Court.

 

Warren was also getting older, and old people think differently. Like many young parents, I have a four-year-old who receives treatment from his grandfather that is nothing like the parenting I got in my childhood – this is a widespread phenomenon called "old people trying to get into heaven." This, far more than any trifling concerns with constitutional protection, is what motivated Warren. We pretend this is all about rights, because liberals want us to paint this era with some luster of legitimacy. But when you dig below the surface and do your own research, it turns out to be just about emotionalism, arrogance and politics.

 

Judicial Options

Given the political climate at the time, did the Warren Court really have a choice but to launch this “revolution”? The answer is, yes – the Supreme Court has a plethora of available avenues, from which it can choose the best one. Suppose we wake up tomorrow morning, and a Chief Justice Freeberg sits on the Supreme Court – just go with me on this, okay? – which in turn is considering a conviction obtained at a lower court. The conviction is immediately seen as improper; on this, some majority of the Court agrees with me. They then look to my leadership for a course of action to write into the opinion. I can do several things with this.

 

First, we may have seen the violation before granting the Writ of Certiorari. In that event, perhaps we deny the petition for the Writ, but issue commentary with the denial. It is quite common for supreme courts to "let stand with comment" or "let stand without comment" when they evaluate a lower court’s decision. The commentary would include a chastisement directed at whoever did what we thought was out of line. Naughty, naughty, we’d be saying. Don’t do that again.

 

This would be poorly advised, and possibly be dereliction of judicial duty, since it would produce documentation that the Court recognized something as unconstitutional and did nothing about it. This would also be inconsistent with the process of certiorari. Translated from the Latin, the phrase roughly means, "we wish to be informed." To deny certiorari in a case, and criticize what we’re allowing to stand, would be strange.

 

It would attract less criticism to grant the Writ, hear the case, find for the appellant and grant a retrial. Retrials are granted routinely by appellate and superior courts. They may be granted as a consequence to any irregularity at trial that the superior court finds to be unacceptable.

 

I could order a justification from the lower court, demanding reasons why my court should not take action. My court would then supply a deadline, along with an abstract statement of what we do if that deadline is missed. We saw a spectacular example of this the first time Bush v. Gore reached the U.S. Supreme Court in 2000, when the Florida Supreme Court was ordered to explain their decree. As we saw back then, this is a burning reprimand, but also can extend the discourse about an important case that may justify extra attention.

 

Yet another course open to me is to simply free the plaintiff. The nine of us are sitting on the highest court, after all. An opinion is an order; any five of us can order pretty much what we want.

 

And finally we can define a class of cases that coincide with our objections to this case. And we can apply this order to that entire class. Retroactively.

 

Now, I’ve just listed five options there – I’m not a lawyer – perhaps there are many more. I’ve stated these five options in order of their impact, starting with the most restrained and ending with the most radical. For the fifteen years we had a Warren Court, that Court consistently picked the fifth option, often when one of the other four would have worked just fine for what they were supposed to be doing. They did this with Griswold v. Connecticut, Gideon v. Wainwright, Miranda v. Arizona, Mapp v. Ohio, Engel v. Vitale, and many other decisions. So the Warren “Revolution” was simply a surfeit of excessive impact.

 

Excessive impact in judicial work, as with surgical work, is not good. Part of the legitimate criticism to be put on the Warren Court, is they tended to use chainsaws where a scalpel would have done a better job.

 

You wouldn’t want your brain to be operated on with a chainsaw, would you?

 

What is Broken and How to Fix It

Warren did not start our slide down the slippery slope of judicial activism.[119] Nor did he finish it. The “right to privacy” he found in Griswold v. Connecticut – mentioned nowhere in the Constitution – planted the seed that blossomed into Roe v. Wade under the Burger Court in January 1973.[120] It’s a terrible irony to behold. Nixon was elected because we grew weary of our highest court making our laws instead of interpreting our laws. Nixon nominated Blackmun. Blackmun created one big-ass in-your-face new law, used today in one campaign commercial after another to justify further erosion to our judicial protections. Vote Left, we’re told, or women will lose “their right to choose.”

 

Liberals wax haughty and indignant that the votes are no longer on the Supreme Court to create more activism. They say this like it’s a bad thing, ignoring the freedoms we all lose when our referees make the rules. It doesn’t matter. If we enjoy eternal protection from so much as one more scintilla of Warren-style, bench-based lawmaking, the damage has been done; leftist politicians have their issue. They bandy about their euphemisms with sanctimonious phrases like “Founding Fathers could never have foreseen...” This is a red herring. What they mean, is they are threatened by the idea of a rock-solid set of statutes being interpreted strictly, with all of us entitled equally to our day in court.

 

This scares the hell out of them. It gives far too much power to normal people like you & me. These zealots want what we should never again give them: A constitution that pays lip service to our supposed freedom from a tyrannical government, with black-robed umpires changing said constitution at will, making it all up as they go along, rendering the protections worthless. That is what Charles Pickering’s defeat was all about.

 

Chief Justice Warren was tainted by a quiet “illegitimacy,” the likes of which George W. Bush could never have dreamed. He was appointed during recess, reluctantly, out of blackmail, with no experience and no demonstrated reverence for the Constitution he was sworn to protect. He left a Court that was as divided as it was divisive.[121] Eisenhower, according to more than one source, called Warren “the biggest damn fool mistake I ever made.” He learned from his mistake. The brain behind Operation Overlord was especially bright, contemplative, humble when he needed to be – but there is no reason we all can’t learn what Eisenhower learned.

 

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If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the constitution designates. But let there be no change by usurpation, for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.

-- George Washington, Farewell Address, Sept. 17, 1796[122]