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The Last Progressive

CHIEF JUSTICE: A Biography of Earl Warren.\o7 By Ed Cray\f7 .\o7 Simon & Schuster: 604 pp., $30\f7

June 15, 1997|EDWARD LAZARUS | Edward Lazarus is completing a book on the modern Supreme Court to be published by Times Books

Once upon a time, there was a popular, newly elected politician who made reforming health care his administration's top priority. His proposal for guaranteeing more Americans health insurance was hardly revolutionary. It preserved the right to choose one's doctor. It even stopped short of compelling doctors to participate. Still, the doctors hired a firm of clever public relations experts, branded the plan "socialist medicine" and handily defeated the politician's newfangled experiment with big government.

The man in question was then California Gov. Earl Warren, the year 1945. According to his new biographer, Ed Cray, Warren's battle to pass a compulsory health insurance bill was every bit the political turning point that a similar battle would become for Bill Clinton 50 years later. The experience, however, sent these two leaders in opposite directions. While Clinton's health insurance defeat prompted a steady move to the right, Warren's defeat helped transform a previously conservative governor into the person chiefly responsible for bringing New Deal-style government to California.

"Chief Justice," the most comprehensive biography of Warren to date, is filled with such latent comparisons to the present day. Indeed, in tracing the arc of Warren's life--from indifferent student to Oakland district attorney, state attorney general, governor and chief justice of the United States--Cray implicitly invites us to measure the public servants of our time against those of the past.

This is altogether fitting. Warren's shadow is nearly inescapable on the field of our current political debates. Almost 30 years after his retirement, the battle over the meaning of our Constitution still takes place largely on the terms he set in his 16 years on the court. And one need not accept Cray's barrage of hagiographic and sometimes banal assessments--"Earl Warren stood as the very embodiment of the American promise"--to agree that reflecting on his career and comparing his accomplishments and personal character against those of our present leadership is to regret that such giant figures are so rare in American public life.

Moving forward through Cray's chronological portrayal, I was struck by how very often, and sometimes in the face of terrible pressure and vicious criticism, Warren was ahead of the curve on matters both great and small. In more than a decade as California's governor, from 1942 to 1953, he faced the considerable task of helping the state transform itself from an underdeveloped frontier into a post-war economic powerhouse. Anticipating an explosion in population, social dislocation and opportunity, Warren used his considerable political skills to forge new programs in housing, highways, water and law enforcement. His funding initiatives turned the University of California into the best state educational system in the country, tuition free. He also reformed California's decrepit prisons, challenged the legality of racially restrictive real estate covenants and, in several other ways, moved to loosen the stubborn hold of Jim Crow attitudes on the West Coast.

Warren's subsequent achievements on the Supreme Court--the so-called "Rights Revolution"--are both better known and more controversial. But with the benefit of hindsight, it is clear that Warren has gotten much the better of his contemporary critics. With respect to his first, greatest and most resisted achievement--the fashioning of the unanimous opinion in Brown vs. Board of Education to outlaw segregated schools--the world now concedes the correctness of both its result and its spirit.

Similarly, although fellow judges and legal academics became apoplectic when the Warren Court ordered the reapportionment of state legislatures according to the principle of one person, one vote, who but followers of a still-bitter Robert Bork does not now think this a valuable blow for democracy? Even Miranda vs. Arizona, once denounced as a get-out-of-jail-free card for criminals, is now accepted and even applauded by law enforcement.

Under Warren, the court's main enterprise was to resurrect two promises the country had made to itself after the Civil War: to provide legal equality for blacks and to force often recalcitrant states to observe most of the individual liberties provided in the original Bill of Rights. (Hard as it is to believe, when Warren became chief justice, states did not have to honor such basic rights as having counsel in a criminal trial or not being tried twice for the same crime). Here, Warren was not "inventing" new rights--as those who sought to impeach him charged--but rather enforcing rights the nation had let languish for the better part of a century. This was both good policy and good law.

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