Eisenhower Vs. Warren:  The Battle for Civil Rights and Liberties

By James F. Simon

Liveright Publishing Corp., New York, 448 pages, $35

In the 1950s, two pervasive civil rights struggles divided America:  the segregation of blacks and the persecution of alleged Communists.  At the national level, President Dwight Eisenhower and Chief Justice Earl Warren disagreed over the direction of the country.  In his new dual biography of these two towering figures, James F. Simon of New York Law School displays a firm grasp of both the legal and historical landscape in analyzing their personal stories, careers, evolving relationship, civil rights battles and how their actions served as the foundation for the transformational civil rights changes that took place in the 1960s.  Written for a mass readership, the book contains the type of nuanced legal analysis that lawyers will find appealing.

Born in 1890, Eisenhower was raised in Kansas and graduated from West Point.  While serving on the staffs of Generals Fox Conner, John J. Pershing, Douglas MacArthur and George Marshall, he became a top administrator and war planner.  During World War II, he served as Supreme Allied Commander in Europe and led the Allies to victory over the Axis.  Following the war, he served in a series of high profile posts, including Army Chief of Staff, Supreme Commander of NATO and President of Columbia University.  Running as a moderate Republican and an internationalist, he won the 1952 presidential election and was re-elected in 1956.

Born in 1891, Warren was raised in California and earned his law degree from Boalt Hall.  Following brief stints in private practice and the Army, he prominently served as Deputy City Attorney of Oakland, Alameda District Attorney, California Attorney General, California Governor and a 1948 vice-presidential candidate.  Like Eisenhower, Warren had a reputation as a GOP moderate and an internationalist.

As adroitly described by the author, both Eisenhower and Warren sought the presidency in 1952.  After Warren's effort fizzled, he backed Eisenhower.  At the GOP convention, Warren convinced the California delegation to support a contested delegates measure that enabled Eisenhower to defeat his chief rival, Senator Robert Taft.  Following Eisenhower's win in the general election, he advised Warren that he would not be included in the Cabinet, but pledged that Warren would be appointed to the next Supreme Court vacancy.

By the summer of 1953, however, no Supreme Court vacancy had materialized. Meanwhile, Warren had decided against running for another term as governor.  Looking for a new job, Warren inquired about the post of Solicitor General, which Eisenhower had been unable to fill.  In early September 1953, Eisenhower offered Warren the post.  Several days later, however, Chief Justice Fred Vinson suddenly died.  Warren immediately became a leading candidate to replace him.

In considering Warren for the chief justiceship, Eisenhower consulted his lawyer-brother, Edgar.  According to the author, Edgar not only took a dim view of politicians serving as judges, but he also opined that a Warren appointment to the chief justiceship “would be a tragedy.”

Eisenhower rejected his brother's advice, however, pointing out that Warren possessed a good legal background, demonstrated “a successful record of [government] administration,” exhibited a “moderate philosophy,” and was “nationally known as a man of integrity and fairness.”  On Oct. 5, 1953, Eisenhower swore in Warren as the 14th chief justice, as a recess appointment.

As noted by the author, both Eisenhower and Warren were given low marks on civil rights by the NAACP in 1952.  Both were considered “gradualists.”  For his part, Eisenhower preferred to leave civil rights issues to the states, had testified before Congress in 1948 that the Army should remain segregated, and was a staunch anti-Communist.  Warren's record was even more suspect, given his support as California Attorney General for the disgraceful internment of Japanese-Americans during World War II,  his tendency to speak in mere generalities about civil rights and his refusal to take a stand against the Senate filibuster, which had been used so effectively by segregationists to defeat civil rights legislation.

The author also notes, however, that Eisenhower's evolving record on civil rights took a turn for the better during his first State of the Union address in February 1953, in which he vowed “to eliminate racial discrimination in the nation's capital and in the armed forces.”

The most compelling part of the book deals with Warren's first term as chief justice, wherein the Supreme Court heard re-argument of the school desegregation cases and Warren steered his divided brethren to reject the separate but equal doctrine. In addition to recounting the arguments of the opposing counsel, Thurgood Marshall and John W. Davis, the author also weaves into his masterful narrative Warren's assiduous efforts to convince the other justices to issue a unanimous decision in Brown v. Board of Education, which received heavy media coverage when it was issued in May 1954.

Eisenhower's response to Brown was tepid.  In analyzing Eisenhower's misgivings about the case, the author provides a balanced criticism of the president's: (a) terse public support of Brown; and (b) doubts that mere court decisions could change the hearts and minds of segregationists.

The author also chronicles well how the persecution of alleged Communists caused strife between Eisenhower and Warren.  During the 1956-57 term, the Supreme Court decided twelve cases involving alleged subversives.  The government lost all twelve, with Warren voting in the majority against the government in each one.  This caused a huge uproar in Congress, which lambasted the Warren Court's increased liberal bent.  The cases also caused a rift with Eisenhower, who privately voiced his anger with the decisions, no doubt lamenting that he had ignored the advice of his brother, Edgar.  In public, however, Eisenhower refused to criticize the Court, noting that it was “one of the great stabilizing influences of this country.”

The book also points out that, in two significant ways, Eisenhower took forceful action on two civil rights fronts during his second term.

First, he supported two federal voting rights bills, the Civil Rights Acts of 1957 and 1960.  Eisenhower had sought broader legislation to root out obstructions to school desegregation, but Senate segregationists eliminated such measures.  As pointed out by the author, however, the 1957 and 1960 Acts served as important stepping stones to the sweeping civil rights bills that were later signed into law by President Lyndon Johnson in 1964 and 1965.

Second, in September 1957 Eisenhower cautiously but dramatically ordered federal troops to Little Rock, Arkansas, to ensure compliance with a federal court order desegregating Central High School.  In so doing, Eisenhower supported the rule of law, enforced Brown in response to obstructionist tactics that had been employed by the Arkansas governor, and struck fear into segregationist politicians everywhere.

In sum, this book makes an important contribution to the public discourse, particularly in an age where the president openly and inappropriately criticizes the federal judiciary and law enforcement.  In the words of John Nagl, the author reminds us that effective statecraft requires wisdom, a sense of history and a sensitivity that respects time, space and scale.

 Jeffrey Winn is a management liability attorney with the Chubb Group, a global insurer and a member of the executive committee of the New York City Bar Association.