American History Tellers - Supreme Court Landmarks | The Warren Court | 5

Episode Date: November 18, 2020

Before the 1950s, the Supreme Court was best known as an institution that adhered to the status quo. It often sought to protect the rights of property owners and businessmen, shying away from cases that took direct aim at controversial social or political issues.But when a popular former California governor became Chief Justice in 1953, all that changed. Earl Warren’s court would take on some of the hottest issues of the times, ruling on cases where individual rights would take precedent, such as Brown v. Board of Education and Baker v. Carr, and where First Amendment and Fifth Amendment rights would be strengthened, such as Engle v. Vitale and Miranda v. Arizona. For sixteen years, the Warren Court would radically reshape the legal and social landscape of America.Listen ad free with Wondery+. Join Wondery+ for exclusives, binges, early access, and ad free listening. Available in the Wondery App. https://wondery.app.link/historytellersSupport us by supporting our sponsors!See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge new seasons of American History Tellers early and ad-free right now. Join Wondery Plus in the Wondery app or on Apple Podcasts. Imagine it's 1953, the first Friday of October. You're sitting in a place you never thought you'd be, the lush backyard of the Governor's Mansion in Sacramento, California. You're a young reporter from the Associated Press who's gotten the scoop of a lifetime. A chance to interview Earl Warren as he transitions from Governor to Chief Justice of the Supreme Court. In the shadow of the towering three-story Victoria Mansion,

you lean in, pencil hovering above your notepad. Governor, can't tell you how much I appreciate your time and attention, thank you. I'll think nothing of it. How old are you, son? 25, sir. My God, an era long gone from me. At 62 years old, Governor Warren is a big, blonde man with a large, open face. Seated across from you, he adjusts his glasses,, blonde man with a large, open face. Seated across from you, he adjusts his glasses, squinting into a sudden ray of sunshine. Can you tell me about that phone call when President Eisenhower offered you the position of Chief Justice? All I can remember for sure is that I accepted it. Truthfully, I was in the shower when the President called.

My wife nearly made his secretary call me back. There's something offhand and easygoing about the Governor. You like his attitude, but he is a politician. And sure, you're green, but you've got this assignment because your editor knows you've also got sharp reporting instincts. So you shift gears. The court has paused deliberations on a case called Brown v. Board of Education. You're aware that this case could have direct implications for the state of race relations in this country. Yes, I'm more than aware of those implications. I'm afraid I can't say anything more on that subject. But I did follow the court closely during the arguments. Did the former Chief Justice have an opinion? Warren smiles at you cagely. I can't presume to know. Well, what would you say to those who criticize the high bench as

a place of entrenchment, of political and civil rights inertia? I'd say that those people know a lot of ten-cent words. I'm not going to comment on the court as an institution. You'd blush, but you're too busy scribbling notes. In the future, you ought to steer clear of those kind of questions. No one's going to go on the record and bite the hand that feeds them. Looking up, you're surprised to find the governor smiling, as if he likes you despite himself.

Off the record, I will tell you that the Supreme Court is not as sluggish as people think. The court is as active or inactive as the justices who sit on it, and the cases they choose to review. Just then, the governor's press secretary signals the time is up. You thank Governor Warren, grab your notepad. Those are big, bold statements he just made. But it's hard to tell who was speaking. The former politician or the soon-to-be high judge? Either way, it sounds like Warren could be a drastic change from the previous chief justice.

He seems a man who is intent in charting a new course. From Wondery, I'm Lindsey Graham, and this is American History Tellers. Our history, your story. When Earl Warren assumed the post of Chief Justice, the Supreme Court of the United States had already begun to take on a series of cases that would come to define the tumultuous era of the 1950s and 60s. For much of the 20th century, the court had followed a policy known as judicial restraint, preserving the status quo and ruling in favor of big business and property owners. But under Warren's leadership, the court took a new position, making decisions that improved the lives of working people, the poor, and the disadvantaged. Chief Justice Warren and the liberal majority that joined him on the high bench waded into uncharted waters on issues affecting race, politics, and sexuality. These cases would

include Brown v. Board of Education, Reynolds v. Sims, and Griswold v. Connecticut. Critics claimed that the Supreme Court had gone too far, that it was seeking to rewrite the Constitution. But the heady politics swirling outside the court would help to shape the bench as much as the justices would shape the nation. This is Episode 5. Five votes can do anything. Hey, this is Nick.

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Take out a witness? Paul can do it. I'm your host, Brandon Jinks Jenkins. Follow Criminal Attorney on the Wondery app or wherever you get your podcasts. When Earl Warren took his position as the 14th Chief Justice of the Supreme Court, one of the most explosive civil rights cases of the era

had already made its way before the justices. It was October 1953. Because the court was in recess when the previous chief died, Warren was nominated and sworn in during the fall term and confirmed by the Senate the following spring. The reaction from Washington politicians and the general public was overwhelmingly favorable. Warren appeared a safe, moderate, and respectable choice. But he would soon show an independent streak that would upend the court. A native Californian, Earl Warren was born in 1891 and grew up in Bakersfield. After attending law school, he rose quickly through the ranks of state politics. He became district attorney of Alameda County and then Attorney General of California. During World War II, he strongly supported the military's internment of

Japanese Americans. He was elected Governor of California in 1942. And with a booming state economy following the war, Governor Warren was widely popular. Ten years later, he would stump for Eisenhower on the 1952 campaign trail. Like Eisenhower, Earl Warren was a popular politician widely seen as a centrist Republican. But he would also turn out to be fundamentally progressive in a way the president was not. These differences would come immediately to light in one of the first Supreme Court cases of the new chief justice's career,

a case called Brown v. Board of Education of Topeka. The Brown case was a combination of five separate lawsuits against school districts in four states and the District of Columbia. At issue was school segregation, and whether it could be proven that separate facilities for white and black students violated standards of equality, a standard that had been established decades earlier by the Supreme Court's decision in Plessy v. Ferguson. Thurgood Marshall, the lead attorney for the NAACP, had argued the case before the Supreme Court in December of 1952, the year before Warren took his spot as Chief Justice. School integration was personal for Marshall. He'd grown up in segregated schools in Baltimore and could not study law at his own state university because of the color of his skin.

As evidenced before the court, Marshall used a psychological study done by researcher Kenneth Clark. In it, black children from segregated schools were shown two pink-skinned dolls and two black dolls. The children were then asked which dolls were nice and which dolls were bad and which dolls were most like themselves. The children chose the black dolls as bad and the fair-skinned dolls were nice, and many of the children picked the white doll as the one most like themselves. The study suggested that because of the harmful psychological toll of discrimination, black students in segregated schools were at a disadvantage.

They were also not getting an equal education. Marshall had found this to be true by traveling around the South himself, inspecting black schools. In 1949, the average state investment per student in Atlanta public schools was $345 less for black children than for white. From the standpoint of the court, the case of Brown hinged less on ethics and more on precedent. The doctrine of separate but equal had been upheld in the courts over and over since Plessy v. Ferguson. And school segregation had been the will of voters and school district boards in 21 states and in the District of Columbia. Warren's predecessor,

Chief Justice Fred Vinson, had believed the Plessy decision should be allowed to stand. He saw it as the job of Congress, not the court, to rule on ending segregation. He reasoned that if the American people had wanted to take such a step, they would have voted for it. But Vinson was unable to reach an agreement among his fellow justices, and the decision had been postponed. During this postponement, Vinson died from a heart attack at age 63. Now, new Chief Justice Warren arrived to find

a case on his hands with enormous implications. He also faced a court that was still divided when a second round of arguments took place over three days in December 1953. Afterwards, rather than having the other eight justices cast votes, Warren requested an open discussion about the case. Felix Frankfurter, a 72-year-old justice nominated by Franklin Roosevelt, personally opposed segregation. But legally, he saw no reason to end it. Stressing judicial restraint, Frankfurter declared that, on the basis of history and precedent, Plessy was right.

Separate could be equal. Fellow Justice Robert Jackson agreed. He also personally opposed segregation, but he asked, How is it that the Constitution this morning forbids what three-quarters of a century it has tolerated or approved? He worried about the kind of precedent that would be set for all the other laws the Supreme Court had upheld. And even if the court did ban segregation, both Frankfurter and Jackson feared that the power of the court would take a hit if states refused to enforce their decree.

Still, after days of intense debates, both men finally agreed to place their personal ethics above legal precedent. That left one last justice to be convinced. Stanley Reed was the final holdout. A native Kentuckian who'd also been appointed to the bench during the Roosevelt administration, Reed felt that segregation laws were for the benefit of both races and that the state should be left to work out the problem for themselves. Chief Justice Warren drafted an opinion for Brown that was short and direct and immediately set about trying to convince the reluctant Stanley Reed to agree with it. Warren had a majority of the court on his side, but he didn't want just a majority in

a case of this magnitude. What he wanted was unanimity. Imagine it's 1954. You're a law clerk taking lunch in the cafeteria of the Supreme Court building. Every day, you and a handful of other clerks convene down here to chat and exchange careful gossip. Because everyone in the Supreme Court building also gets their lunch here, your group usually finds a table far off to the side where you can speak quietly. It wouldn't do to ruffle feathers. Each one of your bosses is a Supreme Court justice. Yeah, they're up there right now. Warren came in looking all bashful like he does and then closed the door.

That's Stanley Reed's clerk. Your boss just happens to be Chief Justice Warren. You both share the attitudes of the men you work for, and you tend to bring them downstairs for lunch. If nothing else, it makes for good debate. For a week, every day at lunch, it's been the same thing. If Justice Reed goes out to eat, Warren follows him. Always smiling, always looking kind of bashful.

Why shouldn't he? The chief wants a unanimous vote. He needs Justice Reed to agree. Well, it's bordering on harassment. You shrug off this comment. Tensions are high in the court these days. Everyone knows that the Brown decision is going to make a lot of political waves. Besides, so what if there's a unanimous decision?

How are we supposed to enforce it? The Supreme Court has no army. It's just words on paper. Just reason and judicial mystique. And that's exactly why this has to be unanimous. There won't be anything mysterious about nine justices saying that segregation is morally, ethically, and legally wrong. States can still ignore the ruling. It certainly happened before. Just like Stanley Reed, his clerk

here is also in favor of maintaining states' rights. Also, like Reed, he's from the South. Listen, citizens have rights against federal interference, okay? Yeah, that's absolutely right. Well, those include rights against state interference as well. Who suddenly decided the federal government was so bad and terrible? Just because D.C. is further away from your local statehouse? State governments are just as full of bloat and ineptitude. Spoken like a true federalist. Black people are American citizens too, right? Oh, come on. Well, that's what this is about, isn't it? That they're fundamentally inferior? Look, this isn't a regional thing. Northern states and politicians have put up

plenty of roadblocks to equal rights over the years. And anyway, I'm not going to debate this with you. You hold up your salad fork in victory, right? Because you have no rebuttal that holds any legal water. That's when an aide approaches your table with a message and nods at you. Eat up. The chief just left Reed's office. He wants to see you up there right now. You shovel a last bit of food into your mouth. Across the table, the eyes of Stanley Reed's clerks are as big as saucers.

If you know your boss, then he's probably just one Justice Reed over. The only thing left to do is get up there and find out. Over several lunches, the Chief Justice eventually wore down the intractable Stanley Reed. According to Reed's law clerk, George Mitchum, Warren finally left Reed with a simple patriotic appeal. Stan, you're all by yourself in this now. You've got to decide whether it's really the best thing for the country. The decision in Brown v. Board of Education was announced on May 17, 1954. Warren wrote for a unanimous majority. To separate black children

from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. As evidence, Warren referenced Kenneth Clark's study of dolls and the traumatic effect of segregation on black children. He also grounded the ruling in a new interpretation of the Constitution, that the principles behind the text should guide the court to respond to a changing society. After five decades, the Supreme Court had done what neither the voters, the legislature, nor the president had chosen to do. It ended the legality of segregation.

But President Eisenhower initially refused to endorse the decision. He offered this neutral response to a reporter's question. The Supreme Court has spoken. I am sworn to uphold the constitutional process in this country, and I will obey. This terse comment offered no expression of support for racial equality and no sign of agreement with the court's decision. Indeed, E. Frederick Morrow, a black member of Eisenhower's staff,

worried aloud that the administration has completely abandoned the Negro in the South. His observation was prescient. In the fall of 1957, Arkansas Governor Oral Faubus ordered National Guardsmen to surround a Little Rock school in order to prevent Black children from entering. He went on television to warn that blood will run in the streets if Black students were allowed to attend class alongside white students. Finally, President Eisenhower ordered federal troops to protect the students and enforce the court's desegregation ruling in Little Rock. In the name of protecting states' rights, Governor Faubus responded by attempting to close down all Little Rock public schools. The following year, the court reinforced its

decision in Brown with a unanimous ruling in Cooper v. Aaron. The decision said that states were constitutionally required to implement the court's integration orders. It read, The principles announced in the Brown decision and the obedience of the states is indispensable for the protection of our freedoms. Our constitutional ideal of equal justice under law is thus made a living truth. This ruling ultimately helped to uphold desegregation. But now the court found itself drawing strong condemnation from conservative groups across the country. They saw the court shift toward protecting individual civil liberties

as an unwanted federal intrusion into social matters. For them, the Brown decision and other rulings protecting political dissent and free expression were taking the court in the wrong direction. Far-right groups like the newly formed John Birch Society took up the call to impeach Earl Warren. Clergy from Catholic, Jewish, and Protestant factions decried the degeneracy of the high court. But the Warren court was just getting started. Over the next decade, it would continue to make more bitter enemies. Ruling on matters of criminal justice and sexual privacy, it would not just overturn legal precedents, but shake up the entire American status quo.

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The national mood was conflicted, unsettled, and divisive. And the court's rulings captured the climate, drawing passionate support from some and condemnation from others. Even outgoing President Eisenhower would tell CBS News that he'd only made two mistakes during his term, adding, and they are both sitting on the Supreme Court. He was referring to his Chief Justice. The first mistake he referred to was Chief Justice Earl Warren, a fellow Republican.

Eisenhower nominated him to the court, assuming that the gregarious former California governor would continue the trend of judicial restraint. But the court's decision and Brown v. Board of Education had quickly signaled that he would break that trend. Eisenhower considered his second mistake to be the appointment of William Brennan, a 50-year-old Roman Catholic from the Northeast. Eisenhower had nominated Brennan in 1956, during an election year. The move was aimed at getting another

conservative voice on the court and boosting his campaign by swaying undecided Catholic voters. But like Warren, Brennan's opinions would turn out to be anything but conservative. By the time Brennan joined the court, he had been a state judge for seven years, but he was still a little intimidated by his new position. His timidness was dispelled somewhat when he was first introduced to the other justices. Brennan later recalled, Chief Justice Warren invited me up to the third floor of the Supreme Court building. In a small room, my seven new colleagues were sitting around a table, having sandwiches. The room was dark, and he put on the light. And there they all were, watching the opening game of the 1956 World Series.

I was introduced by the chief to each of them, and someone said, Put out the light. They put out the light, and they went on watching the game. Like the chief justice, William Brennan excelled at building consensus, at constructing liberal majorities out of an often fragmented group of justices. Brennan proved so good at this that even his former Harvard professor and fellow justice, Felix Frankfurter, could only throw up his hands complaining, I always wanted my students to think for themselves, but Brennan goes too far. In 1962, the court ruled in Case Engel v. Vitale that public schools in Long Island could not force students to say a daily prayer in the classroom.

The prayer itself was non-denominational and only 20 words long, but it was Justice Brennan, the court's lone Catholic, who helped strike it down. The court's ruling cited the First Amendment's Establishment Clause, which forbids Congress from establishing an organized religion of any kind. The Catholic Church was aghast. Young televangelist Billy Graham shook his head in disappointment, while an Alabama congressman fretted that the court had put Negroes in the schools, and now they've driven God out. Traditionally, the Supreme Court had declined to rule on any case hinging on what it considered political questions. This two-word phrase was often invoked by the justices to avoid hearing

cases that might force the court to make a decision questioning the actions of Congress or the president. When the court strayed from this principle, it often drew strong rebukes. But in past decades, it was the court's liberal critics who warned against the dangers of judicial activism. During the 1930s, conservative justices on the court had acted aggressively to block aspects of Roosevelt's New Deal, such as anti-child labor and minimum wage laws. Back then, liberals cried foul. But starting with Warren's term, a new form of judicial activism took hold. For the first time in the history of the court, the rights of individual citizens began to take prominence over the rights of businesses, property owners, and even states themselves.

The court ruled for the right of access to equal education, to express political dissent, and to exercise religious freedom. And now, the court would weigh in on one of those fundamental rights in a democracy, the right to cast a vote. To do so, it would channel the energy of judicial activism to rule on cases that had a direct bearing on the political process. In the 1950s and 60s, more Americans had moved from rural areas into cities, only to find themselves vastly underrepresented in their state legislatures. In Tennessee, a rural town of 2,000 people had one seat in the statehouse, while Memphis and its 300,000 people had only seven seats.

The lopsidedness was referred to as malapportionment. Since the 1930s, over a dozen lawsuits against malapportionment had struggled in the federal courts. But in 1962, the court ordered state legislatures to redraw their district lines on a fair basis. In Baker v. Carr, William Brennan ruled that a citizen's right to vote should be free of arbitrary impairment by the state. A year later, in Gray v. Sanders, the court laid down a simple principle for political equality and equal representation. One person, one vote. The year after that, in Reynolds v. Sims, the court redrew

the political map for the entire nation, ruling that electoral districts within individual states had to be equal in population. Earl Warren wrote that legislators represent people, not trees or acres. Furthermore, he added, legislators are elected by voters, not farms or cities or economic interests. In all three cases, the issues at hand were deemed to be not mere political questions, but powerful constitutional ones. All this judicial activism proved to be too much for an aging Justice Frankfurter. In his final dissent, he appealed for judicial restraint and warned that giving the court too much power would be destructive. Activist rulings would only

plunge the court into political entanglements and weaken its authority. After suffering a stroke at the age of 79, Frankfurter retired from the bench, allowing the liberal wing of the court to grow larger with the nomination of Frankfurter's replacement, former labor lawyer Arthur Goldberg. Goldberg supported civil liberties and civil rights claimants and became the decisive fifth vote behind Chief Justice Warren and Justices Black, Douglas, and Brennan. As Brennan himself would cheerfully say of the court's activist coalition,

with five votes, you can do anything around here. But the court would soon find itself facing a very particular kind of civil liberties case, one that wound around the thorny concepts of personal privacy, contraceptives, and a new form of oral birth control called the pill. Imagine it's November 1961. You're the director of a small women's clinic in New Haven, Connecticut, just around the corner from the Planned Parenthood League office. The goal of your clinic is simple. You want to help women of your state learn about and purchase birth control. But there's a problem. Contraceptives are illegal in the state. The detectives are here. You lead a pair of New Haven plainclothes policemen

into the office you share with your partner, Dr. Buxton. One of the detectives shakes his hand in a perfunctory way. Is it like this every day? You mean outside, the protesters? No, well, not every day, but... But, well, yeah, almost every day? You mean outside, the protesters? No, well, not every day, but, but, well, yeah, almost every day. We've been open less than a week. Doesn't make it easy for us to do our job. Well, ma'am, we are just trying to do ours. As you should. You lead the detectives through the building, calmly detailing all the services that Planned Parenthood League of

Connecticut provides. For a quick second, you feel like a bizarre tour guide. Dr. Buxton trails behind, quietly motioning at other employees not to panic. They didn't know the police were coming today, but you and Dr. Buxton did. Finally, your small group stops at a door. And I'm sure you officers are interested in this room. It's where we keep the oral contraceptives. Ma'am, are you telling me that you provide contraceptives in this facility? I am telling you that, yes. Now, we don't have a sign outside that says, we sell contraceptives, but yes, we sell contraceptives.

We sell the pill. And this is the room where we keep them. Would you like a few? Ma'am, I'm sorry, but Connecticut state law prohibits the selling of contraceptives. We're going to have to arrest you. Oh, what took you so long? The other policeman turns to Dr. Buxton. Doctor, you are also under arrest as the medical director of this facility. Dr. Buxton shoots a quick glance at you, but he's not worried, and neither are you. He's over the moon, but trying to hide it. He holds his hands

out, and you do the same. Oh yes, definitely put the cuffs on us. The two policemen look doubtfully at each other. Of course, no one thinks this is a laughing matter, but you and Dr. Buxton have guessed an arrest like this would be coming, and both of you were ready for it. Just days after opening a women's clinic in Connecticut, Estelle Griswold and her partner Dr. C. Lee Buxton were arrested by New Haven police on charges of selling oral contraceptives. opening a women's clinic in Connecticut, Estelle Griswold and her partner Dr. C. Lee Buxton were arrested by New Haven police on charges of selling oral contraceptives. Since 1879, a state law had

forbidden the sale or use of any drug, medicine, article, or instrument for the purpose of preventing conception. State officials had never prosecuted doctors under this law, but after incensed complaints from one of the clinic's Catholic neighbors, the local district attorney had no choice but to follow up. Griswold and Dr. Buxton were fined $100 each. They appealed their case to Connecticut State Supreme Court, and then to the federal Supreme Court. Four years later, in 1965, the justices heard arguments in Griswold v. Connecticut. The lawyer for the doctors argued that the Connecticut contraceptive law violated personal liberty under the 14th Amendment's Due Process Clause. Their lawyer also cited an earlier case from 1942 named Skinner v. Oklahoma.

In that ruling, Justice William Douglas had written that procreation was a fundamental right. But did that mean that the Constitution also included the right not to have children? Justice Douglas still sat on the bench 23 years later, and he listened as the lawyer for Connecticut struggled to defend the state's law. Their case hinged on a concept of fidelity. The lawyer suggested that easy access to contraceptives might make a spouse more likely to cheat. Riding for a 7-2 majority, Justice Douglas struck down Connecticut's contraceptive law. Casting a wide rhetorical net over the narrow words of the framers, Douglas compared the Bill of Rights to an umbrella that shields the public from the

prying eyes of the government. Citing a dozen different cases, stretching from 1886 to 1961, including his own opinion in Skinner, Douglas cited several different constitutional guarantees to a married couple's privacy. Writing in Dissent, Justice Hugo Black pointed out that the Constitution didn't explicitly say that states couldn't ban contraception. He wrote, I like my privacy as well as the next, but I am nevertheless compelled to admit that the government has a right to invade it unless prohibited by some specific constitutional protection. Black worried that it was unwise to try and modernize the Constitution. In his view, the justices had no place deciding laws for voters. The divide over Griswold v. Connecticut echoed in a larger difference of opinion between the

justices and America over just what the role of courts should play in society. But under Warren's leadership, modernization was precisely what was happening. The constraints of the Constitution were being pushed to provide more protections than ever before. Chief Justice Warren and his majority of five votes, and often more, would sail through the 1960s buffeted by winds of social change. Together, they would go from landmark ruling to landmark ruling. But at the height of his court's tenure, a mistake in Warren's political calculations would prove disastrous and put his control of the court in jeopardy. Richard Bandler revolutionized the world of self-help all thanks to an approach he developed called neurolinguistic programming. Even though NLP worked for some, its methods have been

criticized for being dangerous in the wrong hands. Throw in Richard's dark past as a cocaine addict and murder suspect, and you can't help but wonder what his true intentions were. I'm Sachi Cole. And I'm Sarah Hagee. And we're the hosts of Scamfluencers, a weekly podcast from Wondery that takes you along the twists and turns of the most infamous scams of all time, the impact on victims, and what's left once the facade falls away. We recently dove into the story of the godfather of modern mental manipulation, Richard Bandler, whose methods inspired some of the most toxic and criminal self-help movements of the last two decades. Follow Scamfluencers on the Wondery app or wherever you get your podcasts. You can listen to Scamfluencers and more Exhibit C true crime shows like Morbid and Kill List early and ad-free right now by joining Wondery Plus. Check out Exhibit C in the Wondery app for all your true

crime listening. In November 1991, media tycoon Robert Maxwell mysteriously vanished from his luxury yacht in the Canary Islands. But it wasn't just his body that would come to the surface in the days that followed. It soon emerged that Robert's business was on the brink of collapse, and behind his facade of wealth and success was a litany of bad investments, mounting debt, and multi-million dollar fraud. Hi, I'm Lindsey Graham, the host of Wondery Show Business Movers. We tell the true stories of business leaders who risked it all, the critical moments that define their journey, and the ideas that transform the way we live our lives.

In our latest series, a young refugee fleeing the Nazis arrives in Britain determined to make something of his life. Taking the name Robert Maxwell, he builds a publishing and newspaper empire that spans the globe. But ambition eventually curdles into desperation. And Robert's determination to succeed turns into a willingness to do anything to get ahead. Follow Business Movers wherever you get your podcasts. You can listen ad-free on the Amazon Music or Wondery app. The Warren Court of the 1960s vigorously used judicial review to reshape the

Constitution's place in society. Judicial review was a doctrine that dated back to the 19th century. During the presidency of Thomas Jefferson, the court's chief justice, John Marshall, established judicial review by saying that the Supreme Court had the power to decide what laws were constitutional and which were not. It was a powerful and bold assertion at the time. But there was one key difference between Marshall's court and Warren's. In 35 years, the Marshall Court only struck down one act of Congress. But under Warren, the Supreme Court vastly expanded its reach. Between 1963 and 1969, the Warren Court struck down 16 federal statutes and nullified 113 state

and local laws. Conservatives, once happy with a court that quietly backed their rights to property in a free and unregulated market, now fumed out loud that judicial activism had no place anywhere near the Constitution. Even Supreme Court Justice Byron White, a Kennedy appointee, complained that his fellow justices were exploiting the court to invent new law and new public policy. This kind of judicial review shook the status quo, driving the forces of reform both in government and at the grassroots level. Rulings against public and private discrimination allowed minority groups new access to political power and representation.

The court's dedication to free speech widened the possibilities of political argument and emboldened protests against the nation's role in the Vietnam War. However, the court did not always rule as expected. In 1968's Tinker v. Des Moines, the court ruled that a school in Iowa could not ban students wearing a protest armband. But it drew a line on how far a protest could go. And in United States v. Bryan, when a student named David O'Brien, over 18 and eligible for the draft, was arrested for burning his draft card on the steps of a Boston courthouse, the court upheld his prison sentence.

Even Earl Warren would not meddle with the smooth and efficient functioning of a draft courthouse, the court upheld his prison sentence. Even Earl Warren would not meddle with the smooth and efficient functioning of a draft system during wartime. Still, the rights of those accused with a crime were expanded. In a 1966 case, the court found itself considering whether police had the right to extract confessions from criminal suspects without first advising them of their rights. The case was titled Miranda v. Arizona. The defendant was Ernesto Miranda, who'd been accused of raping a teenager. Miranda had not been visually identified by the victim, but his license plate had been seen by witnesses.

After two hours of questioning by police without a lawyer present, Miranda confessed to the crime. Later, his lawyer claimed a violation of Miranda's Fifth Amendment right to remain silent. Miranda's argument rested on a history of coerced confessions by police. In 1936, the court had thrown out confessions obtained by whipping, and in 1958, the court ruled that police couldn't threaten a suspect with mob retaliation. The 1963 decision in Gideon v. Wainwright ruled the states must provide attorneys to

criminal defendants who couldn't afford them. Now, in a bare-majority ruling, Chief Justice Warren dictated word for word the warning the police would, from then on, have to recite to all suspects. This collection of guarantees—the right to remain silent, the right to an attorney, the reminder that anything suspects said while in custody could be used against them in a court of law, would become known as the Miranda Warning. The case would set a precedent for the protection of anyone who might be unfairly coerced by the police. Justice Byron White wrote critical dissent of the ruling, warning that the court's opinion would return a killer, a rapist, or other criminal to the streets. But Miranda wouldn't return to the

streets. A jury in his second trial, who did not hear his confession, convicted him again. In 1967, President Lyndon Johnson nominated Thurgood Marshall to replace outgoing Justice Tom Clark. Marshall was poised to become the first African-American justice on the high court. By this point, Marshall was already something of a legal legend, having won all but three of the 32 cases he'd argued before the Supreme Court. But his confirmation hearing did not reflect that evidence. Southern senators grandstanded and used their time to ask belittling questions. Mississippi's James Eastland asked if Marshall was prejudiced against the white people of the South. South Carolina's Strom Thurmond demanded Marshall answer 60 complicated questions about 19th century law. When Marshall couldn't name all

the congressional committee members who drafted the 14th Amendment, Thurmond called him a stupid guy on the floor of the Senate chamber. But the rest of the Senate went on to confirm Thurgood Marshall by a vote of 69 to 11. All but one of the no's came from Southern senators. Now, a decade and a half after arguing Brown v. Board of Education, and more than 100 years after the abolition of slavery, Marshall became the first Black person to don the robes of a Supreme Court justice. The Warren Court's five votes were still secure, and the court had broken down racial barriers as well as judicial ones. The good feeling was pervasive among the justices, so pervasive that Chief Justice Warren decided it

was time to retire. In June 1968, Warren sent a letter to President Johnson declaring his intention to step down. The only reason Warren gave was his age, but backroom murmuring speculated it had more to do with the upcoming November election. Lyndon Johnson, a Democrat, had announced he would not run again for the presidency. This had cleared a path for former Vice President Richard Nixon, who had run previously against John F. Kennedy in 1960. This time, his chances were better, campaigning on a domestic law and order platform and a pledge to de-escalate the war in Vietnam. Nixon also had broad Republican support behind him. His party wanted nothing more than to roll back the judicial activism of the past two

decades. Seeing this, Chief Justice Warren wanted President Johnson to fill his position with someone who could carry on the court's activist legacy. Justice Abe Fortas was who both men had in mind. For the last two years, Fortas had served as an associate justice following his nomination in 1965. He was a well-connected and successful former Washington lawyer and a close confidant to President Johnson. The plan was for Fortas to be quickly confirmed as chief justice. Then Johnson would nominate a Texas judge named Homer Thornberry to take Fortas' old seat on the bench. Both nominations would be completed in less than five months. But the plan fell apart when Fortas' confirmation process began mired in an ethics scandal. Fortas had received a $15,000 lecture fee while serving as a Supreme Court justice.

The revelation prompted Republicans in the Senate to filibuster his nomination for six days. Then other questionable financial dealings began to come to light, and by the time Fortas withdrew his nomination in October, it was too late for anyone else to be nominated. Earl Warren's political calculations had misfired. He could have withdrawn his resignation and kept the chief justice's seat, but in the twilight of his public life, the last thing he wanted to be remembered for was breaking his word. Richard Nixon was elected to the presidency that November.

By June of the following year, Earl Warren Sunday evening in Washington. It's been 16 years since you first nervously interviewed Earl Warren on the back lawn of the California Governor's Mansion. It's not a coincidence that you now find yourself near the steps of the Lincoln Memorial. You're here for a national tribute to the man who, just one month ago, was the Chief Justice of the Supreme Court. You followed his entire career. For some reason, no one publicized the event, but nearly a thousand people have come to watch tribute speeches and listen to the U.S. Army chorus. It takes the Chief just a second to remember how you both first met, but when he does, his face breaks into a wide smile. You know, I think most of these folks are just tourists. I wonder what states they're from. I wonder if they know what they've gotten themselves into this evening.

The two of you exchange quick pleasantries, and you catch him up on your newspaper career here in the capital. But I do have a question, if you don't mind. I'll do my best to answer it. Why did you not just rescind your retirement offer? You didn't have to step down. No, but I said I would. I gave my word. Not much else a man has beside the ethics he carries around with him. Everyone complains about politics in the court, as if it were something a human being could avoid.

But sir, President Nixon has... No, no, President Nixon might serve two full terms. That's eight years. I'm 78 years old. I don't have to do the math for you. Regardless of who's in the White House, it was time for me to step down. I feel good about what I've accomplished. Don't you think it's just fine to go out on top? You consider his point. You almost bring up Abe Fortas, but it's probably a sore subject. Warren continues. Besides, I think Dick is going to learn something the hard way. You've covered the court.

You know how these things go. Just because you nominate someone doesn't mean they'll stay beholden to your politics. That's true, sir. There's no telling what side of justice this decision will land on. Ban's about to finish, I think. And I must excuse myself. It's been a pleasure. The two of you shake hands,

and he moves easily back into the swirl of people in summer clothes. And as for you, you'll take in the last of the music and enjoy the long, lingering sunset of a summer evening in Washington, D.C. Earl Warren was honored at the Sunday afternoon Lincoln Memorial Tribute by former Justice Arthur Goldberg. He praised the former Chief Justice for enduring what he termed unparalleled abuse and hoped that Warren would be remembered not for any singular decision, but for his steadfast views that the modern world deserves judges who avoid escapism

and frankly confront even the most controversial and troublesome judicial problems. For the new Chief Justice, Nixon chose an Eisenhower-era appeals court judge named Warren Burger. A vocal critic of many of the Warren Court's decisions, Chief Justice Burger would be joined by three more Nixon nominees in the next four years. The Burger Court would bring an end

to the judicial activism of the past two decades. But neither did the Burger Court start a conservative counter-revolution. Instead, it settled back into familiar rhythms and routines, and the judicial restraint of earlier decades. The Burger Court would also make decisions that surprised even the president who had filled nearly half the bench. One of the biggest would involve an issue new to the court, and a ruling that would

go on to transform judicial politics for decades to come. It would be a case called Roe v. Wade. Next on American History Tellers, in two weeks, we review how the Supreme Court confronted questions over the origin of life itself. Religion and individual rights as a Texas case about abortion, makes its way to Washington. But first, next week, two presidential hopefuls square off as one of the closest elections in American history

comes down to a recount in Florida, leaving the Supreme Court to intervene and determine the winner. From Wondery, this is episode five of Supreme Court Landmarks for American History Tellers. I also have two other podcasts you might like, American Scandal and American Elections Wicked Game. For more information on the Warren Court, we recommend A People's History of the Supreme Court by Peter Irons. American History Tellers is hosted, edited, and produced by me, Lindsey Graham for Airship. Sound design by

Derek Behrens. Audio editing by Molly Bach. This episode is written by George Ducker, edited by Dorian Marina. Our executive producers are Jenny Lauer Beckman and Marshall Louis, created by Hernán López for Wondery. If you like American History Tellers, you can binge all episodes early and ad-free right now by joining Wondery Plus in the Wondery app or on Apple Podcasts. Prime members can listen ad-free right now by joining Wondery Plus in the Wondery app or on Apple Podcasts. Prime members can listen ad-free on Amazon Music. And before you go, tell us about yourself by filling out a short survey at wondery.com slash survey.