JULY 25, 2018
EISENHOWER VS. WARREN, the latest dual biography by James F. Simon, dean emeritus at New York Law School, is a well-paced, balanced account of two remarkable men and their conflict over public school integration and treatment of “subversives” during the 1950s and 1960s. Simon, however, leaves a major historical question unaddressed.
Eisenhower vs. Warren stresses that the poisoning of President Dwight D. Eisenhower and Chief Justice Earl Warren’s relationship came from the Brown v. Board of Education decision. In 1977, Eisenhower biographer Stephen Ambrose published Eisenhower’s private view that appointing Warren to be Chief Justice “was the biggest damn fool thing that I ever did.” Eisenhower supposedly referred to Warren as a “dumb son of a bitch.” Warren never forgave Eisenhower for inviting him to a stag dinner in February 1954 after oral arguments had been heard in Brown, but before the decision was rendered. Eisenhower sat Warren next to legendary attorney John W. Davis, the defender of the segregation in that case, praised Davis as “a great man,” and terribly compounded the inappropriateness of the evening by explaining to Warren that white Southerners were not “bad people,” but only concerned “their sweet little girls are not required to sit in school alongside some big overgrown Negroes.” In another version of this anecdote, recounted by Warren biographer Bernard Schwartz, Eisenhower’s racism was more blatant. He referred to “some big black bucks.”
This is the headline stuff of Simon’s book. But it is most valuable for capturing the nuance of two politicians navigating through the McCarthy era, the Soviet nuclear threat, and the fear of communism.
Eisenhower and Warren were rivals for the Republican nomination for president in 1952. The party was ideologically divided, but the more potent division was between the conventional conservative Eisenhower, who won the nomination, and ultra-conservative Robert Taft.
Warren, the popular, three-time-elected moderate Republican governor of California, had achieved an enviable record on social issues, increasing spending on public health, including mental health, improving the state prison system, and increasing funding for the public university system without raising taxes. Warren’s record, however, would be marred by his strong support of Japanese internment during World War II that incarcerated over 100,000 Japanese Americans solely on the basis of their race. He was to the left both of Eisenhower and Taft at a time in the Republican Party when it was not impossible (but still difficult) for a more moderate Republican to receive the nomination.
Eisenhower, the greatest war hero of World War II, is currently the subject of a positive historical reevaluation. He was derided as president for the fuzziness of his public statements. Now these are seen as part of a hidden-hand presidency. He was always more complex than the “I like Ike” brouhaha suggested. He took a tough stand on his foreign policy leadership, both standing up to the Soviet Union and to the more militaristic in Washington, including Vice President Nixon, who, among other things, supported United States use of troops in Vietnam in 1954 when the French occupation fell at Dien Bien Phu. He showed conviction in his 1952 campaign for president when he told Southern audiences they had to protect the rights of their neighbors, “whatever the color of their skin.” He went further with a black congressional candidate that year: “If I do not protect and support your rights, I will lose my own.” These were not just words. He worked to end segregation in Washington, DC. He supported, but many thought too cautiously, desegregating the military in the period before the Brown decision.
What is described in Simon’s book is some convergence between the approach of Warren and Eisenhower toward the racial desegregation that the Brown decision portended. Warren is hallowed in progressive interpretations of our social history for moving a bitterly divided United States Supreme Court to a unanimous decision in Brown v. Board of Education I, the 1954 decision that held: “In the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
Warren also is recognized for his achievement in securing unanimous support for the second Brown decision in 1955, which remanded implementation of the Brown decision to federal district courts to “enter such orders and decrees consistent with this opinion as are necessary and proper to admit the parties to these cases to public schools on a racially nondiscriminatory basis with all deliberate speed.”
Warren’s determination to secure unanimous decisions and not to order immediate desegregation or desegregation by specific dates was a compromise. He believed that it was necessary. As he stated in a Supreme Court conference: “It would be unfortunate if we had to take precipitous action that would inflame more than necessary.” He recognized the likely resistance of the Deep South to the social transformation that would probably occur when segregation ended. He sought to abolish the practice of segregation, “but in a tolerant way.”
Eisenhower has been widely scorned for his failure to publicly champion Brown. His public statements about the case were muted, seemingly minimalist. The same leader who as Supreme Commander of Allied Expeditionary Forces led the crusade in Europe that won the war, responded to what instantly was recognized as the most important Supreme Court decision since Dred Scott with the tepid words: “The Supreme Court has spoken, and I am sworn to uphold the constitutional process in the country. And I will obey.”
When confronted with a sustained effort in Little Rock not to integrate Central High School, Eisenhower took nearly 10 months to order the National Guard to ensure the successful entrance of nine black students into the school.
There was another side to Eisenhower’s role in implementing Brown. Eisenhower appointed Herbert Brownell to be his attorney general and gave him carte blanche to supervise the writing of the Justice Department’s amicus (or friend of the court) briefs in Brown. Brownell strongly believed that school segregation was unconstitutional and the Plessy case that created the separate but equal doctrine had been wrongly decided. Eisenhower never showed great enthusiasm for Brownell’s opinions, but he never blocked Brownell from filing briefs that made the case for the unconstitutionality of public school segregation. Eisenhower changed only one word in the Justice Department’s second brief on implementation. The Department initially wrote: “Racial segregation in public schools is unconstitutional and will have to be terminated as quickly as possible.” Eisenhower substituted the word “feasible” for the final word “possible.”
Similarly, while Eisenhower was painfully slow to act in Little Rock, the larger point was that he acted. Simon observes that this was the first time “the American president had used federal troops to compel equal treatment of black Americans in the South since Reconstruction.”
Eisenhower believed that support for desegregation would be achieved not just by judicial decisions. As he sourly put it before a press conference during the Little Rock crisis, he was frustrated with people “who believe you are going to reform the human heart by law.”
The combination of the Supreme Court reluctance to insist upon rapid implementation of the Brown decision and Eisenhower’s refusal to lead a crusade for the decision was coincident with massive Southern resistance to the decision.
It would take until 1971 and the Supreme Court case, Swann v. Charlotte-Mecklenburg, where school busing and other aggressive means of implementation were ordered, that de jure desegregation in the South and throughout the nation would be more fully ended. Even then, however, it was largely limited to instances where there had been violations of the Equal Protection Clause and did not reach de facto segregation through such means as housing practices.
The unaddressed historical question in Simon’s book is the counterfactual: would our nation have been better off if both the Court and President Eisenhower had been more willing to confront racism when Brown was decided? We will never know. The complexities of applying Brown in the South were real and it would require a generation of Civil Rights activists led by Dr. Martin Luther King Jr., the Civil Rights legislation of the 1960s, sit-ins, marches, and protests for the Civil Rights movement (dramatically accelerated by Brown) to partially succeed. For those who argued the Brown cases, this was its greatest disappointment. For practical politicians who focused on the political limits of social change, these were the reasons to move slowly.
Simon provides useful insights both into the competing views of the two most consequential leaders during the 1950s who were responsible for our nation’s initial desegregation practices and into the complexity of the process of beginning to unravel the “American Dilemma,” as Gunnar Myrdal, the Swedish Nobel Laureate economist, called our race relations. But he doesn’t directly address the ultimate question of whether there would have been a better way to proceed.
Joel Seligman is the author or co-author of 20 books and more than 40 articles on legal issues related to securities and corporations and served as the 10th president of the University of Rochester from July 2005 through February 2018.