The Supreme Court
A Court Divided
“I think he came to realize very early, certainly long before I came here , that this group of nine rather prima donnaish people could not be led, could not be told, in the way the Governor of California can tell a subordinate, do this or do that.” —Justice Potter Stewart from A History of the Supreme Court
Not unlike today's Supreme Court, which is almost evenly split between liberals and conservatives with many controversial Supreme Court rulings decided on a five to four vote, the Court Warren first took over was also divided in half with two strong factions. Luckily when the final number of Supreme Court justices was decided by Congress in the 1800s the decision favored an odd number of justices, which means one side of any issue can put together a majority decision.
In Warren's day the two factions split on the issue of judicial restraint versus the activist approach. The judicial restraint wing, who believed the law must be stable, was resistant to changing past precedents. The activists, who believed the law cannot stand still, supported changes in precedent as society changed.
Before Earl Warren got to the court, Justice Felix Frankfurter was firmly in charge of the justices who believed in judicial restraint and Justices Hugo Black and William Douglas led the activist wing. Earl Warren quickly chose sides and joined the activists.
Just the Facts
Byron White sat on the fence for much of his time on the court from 1962 to 1993. He opposed many of the Warren Court decisions relating to criminal procedure and was in the majority of 807 five to four decisions during his 31 years on the Court. White, even though he was a Democratic appointee who was expected to join the liberal side of the Court, became a solid force for judicial restraint during the Warren Court and worked to overturn many of the decisions of that Court after Warren left.
The key swing vote for Warren during the first half of his term was Justice Tom Clark, who was appointed by Truman in 1949. Clark was Truman's Attorney General before being nominated for the Court. Warren could count on him for many of the cases related to personal rights, but occasionally, Clark would take the role of sole dissenter when Warren did not successfully convince him to join the activist view.
The court stayed evenly divided until 1962 when Frankfurter retired from the court at the age of 79 and one other justice from his faction also retired. As replacements, President John Kennedy appointed one justice who joined the judicial restraint group, Justice Byron White, and one who joined the activist group, Justice Arthur Goldberg. This helped to solidify Warren's activist wing and gave him the power base he needed at the Court.
Warren essentially led two courts—one evenly divided for about the first half of his term and one strongly activist for the second half. While the landmark desegregation case was decided early in his term on the court, most of the critical personal rights cases were decided after enough activists had joined the court in 1962.