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Throughout, Earl Warren was both symbol and target. Bumper stickers reading IMPEACH EARL WARREN—or in California, FLUORIDATE EARL WARREN —festooned countless autos, and the Chief Justice was long No. 1 on the far right's hate list. In 1954, Mississippi's Senator James Eastland denounced Warren's court as "the greatest single threat to our Constitution"; last week George Wallace declared that "he's done more to destroy constitutional government in this country than any one man." Even Dwight Eisenhower, who thought of Warren as a mildly progressive Republican when he named him Chief Justice, reportedly described the appointment years afterward as the "biggest damfool mistake I ever made." "I wasn't close to him when I appointed him," Eisenhower later declared, "didn't really know him. But I liked his family, and I'd been told he'd been a good Governor."
Even within the unemotional confines of the legal profession, the Warren court has often been attacked. Usually the line is drawn between two factions. There are those who, like the late Justices Louis Brandeis and Felix Frankfurter, believe in strict judicial restraint, holding that the court exists not to make law but to interpret it rather strictly. And there are the judicial activists, who believe that many wrongs can be righted by following the broad mandate of the Constitution. The main thrust of the Warren court, particularly since Frankfurter's retirement in 1962, has been toward activism. This view, complains Justice John Harlan, a Frankfurter man, "is that every major social ill in this country can find its cure in some constitutional 'principle' and that this court should 'take the lead' in promoting reform when other branches of government fail to act."
Lonely Dissenter. Critics also charge sloppy legal draftsmanship in many decisions that have not so much outraged as confused. The Justices, notes Yale Scholar Alexander Bickel, have yet to come up with a workable definition of obscenity. The decisions curbing police abuses have been almost as murky, says Chicago Law Professor Philip Kurland. "After Escobedo," he quips, "you need Miranda, and after Miranda, we will need maybe twelve more decisions."
Actually, the critics have not been exactly on target in attacking Warren, for the Chief Justice is only one of nine men, with only one of nine votes. "Warren should get neither the blame nor the credit," says Harry Kalven Jr., a law professor at the University of Chicago. "Both the great achievements and the non-achievements of an institution are collective." A Columbia law professor sees Warren's chief significance in his having "brought a fifth vote to positions that were dissenting positions before he came." In fact, no Chief Justice has come close to dominating the court since John Marshall, and the holder of the title can be a lonely dissenter, as Warren often was before the liberals gained a clear-cut majority in 1962.