The Brethren Read Free

made Warren and his Court famous and infamous—were their domain. Warren was not an abstract thinker, nor was he a gifted scholar. He was more
    interested in the basic fairness of decisions than the legal rationales.
    They headed west, downtown, turned into 16th Street and pulled into the circular driveway of the University Club, a private eating and athletic club next to the Soviet Embassy, four blocks north of the White House. The staff was expecting them. This was a Saturday ritual. Warren was comfortable here. His clerks were less so. They never asked him how he could belong to a club that had no black members.
    With his clerks in tow, Warren bounded up the thick-carpeted steps to the grill. It was early for lunch, not yet noon, and the room was empty. Warren liked to start promptly so they would have time for drinks and lunch before the football game. They sat in wooden captain's chairs at a table near the television and ordered drinks. The Chief had his usual gimlet. He was pensive. They ordered another round. Warren reminisced, told political stories, chatted about sports, and then turned to the recent past, to Richard Nixon's election. The Chief thought it was a catastrophe for the country. He could find no redeeming qualities in his fellow California Republican. Nixon was weak, indirect, awkward and double-dealing, and frequently mean-spirited. Throughout the 1968 presidential campaign, Nixon had run against Warren and his Court as much as he had run against his Democratic rival, Senator Hubert Humphrey. Playing on prejudice and rage, particularly in the South, Nixon had promised that his appointees to the Supreme Court would be different.
    It was unlikely that a Nixon Court would reverse all the Warren Court's decisions. Though Justices John Harlan, Potter Stewart and Byron White had dissented from some of the famous Warren decisions, each of them had strong reservations on the matter of the Court's reversing itself. They believed firmly in the doctrine of stare decisis —the principle that precedent governs, that the Court is a continuing body making law that does not change abruptly merely because Justices are replaced.
    But as Warren and his clerks moved to lunch, the Chief expressed his frustration and his foreboding about a Nixon presidency. Earlier that year, before the election, Warren had tried.to ensure a liberal successor by submitting his resignation to President Lyndon B. Johnson. The Senate had rejected Johnson's nominee, Associate Justice Abe Fortas, as a "crony" of the President. All that had been accomplished was that Nixon now had Warren's resignation on his desk, and he would name the next Chief Justice.
    Warren was haunted by the prospect. Supreme Court appointments were unpredictable, of course. There was, he told his clerks, no telling what a President might do. He had never imagined that Dwight Eisenhower would pick him in 1953. Ike said he had chosen Warren for his "middle of the road philosophy." Later Eisenhower remarked that the appointment was "the biggest damned-fool mistake I ever made."* Well, Warren said, Ike was no lawyer. The clerks smiled. But Richard Nixon was, and he had campaign promises to fulfill. He must have learned from Eisenhower's experience. He would choose a man with clearly defined views, an experienced judge who had been tested publicly on the issues. The President would look for a reliable, predictable man who was committed to Nixon's own philosophy.
    "Who?" asked the clerks.
    "Why don't we all write down on a piece of paper who we think the nominee will be?" Warren suggested with a grin.
    One clerk tore a sheet of paper into five strips and they sealed their choices in an envelope to be opened after Nixon had named his man.
    Warren bent slightly over the polished wooden table to conceal the name he wrote.
    Warren E. Burger.
    Three months later, on the morning of February 4, 1969, Warren Burger, sixty-one, was in his spacious chambers on the fifth floor of the Court