Ike Balances the Court

Editor's Note: Susan Eisenhower, a consultant and expert on international policy and security, has recently published How Ike Led: The Principles Behind Eisenhower's Biggest Decisions, based on years of research into how her grandfather made his biggest decisions by relying on a core set of principles and gave our country eight years of peace and prosperity. She is also Chairman Emeritus of the Eisenhower Institute. 

Dwight Eisenhower felt that a key role for a head of state was to unify the country, and after he became president in 1953, he made national unity arguably his highest priority for the next eight years. Ike was utterly dedicated to the oath he had taken to defend the Constitution, the pledge he first made as a young cadet at West Point.

There is no greater evidence for President Eisenhower’s approach to constitutionalism than his court appointments. Ike did not believe that the political process should taint the courts, as an independent branch of government. With an idealism that seems almost quaint in today’s partisan climate, he felt there should be a balance on the Supreme Court between Democrats and Republicans. When Ike assumed the presidency, eight of the nine Associate Justices were Democrats. During his two-term presidency, he appointed five judges to the Supreme Court with widely different viewpoints.

As Ike’s Attorney General Herbert Brownell later observed, “The president believed and acted upon the belief that the Supreme Court’s membership should represent diverse ideological points of view.” He believed this would foster public confidence in the court, which is an “unelected body.” 

“If the Senate should confirm only nominees with an ideology that conforms to the Senate’s prevailing ideology,” Brownell asserted, “it would be a signal that the Senate wanted the Court to decide constitutional issues not on an independent judicial basis but on a political ideological basis.”‘

There was precedent for this. Only 110 days after Harry Truman became president in 1945, Justice Owen Roberts retired leaving a vacancy on the Supreme Court. The Democrat Truman appointed Harold Hitz Burton, the Republican Senator from Ohio, to balance a Court whose justices had all been appointed by Franklin Roosevelt. The Senate unanimously confirmed Burton on the same day Truman appointed him in recognition of this gesture of bipartisanship.

Even before Eisenhower was elected president in 1952, challenges had been brewing to the Supreme Court’s ruling in Plessy v. Ferguson which had established the principle of “separate but equal” public facilities for Whites and African-Americans. Decades after the 1896 decision, more people were raising the question of whether separate education could in fact be deemed “equal.” 

School segregation cases were first argued in the Supreme Court toward the end of the Truman presidency in December 1952, when five separate cases were consolidated into Brown v. Board of Education, which originated in Topeka. But the justices were divided. Some opposed what they saw as judicial activism, others expressed concerns about the proposed decision’s enforceability, and Chief Justice Vinson noted that Congress had not issued desegregation legislation. 

After the new Eisenhower administration came in, Chief Justice Vinson asked for its views on this pending case, hinting at dissention among the justices, but the White House was at first reluctant to cross constitutional lines with a reply. 

On September 8, 1953, Chief Justice Vinson died unexpectedly, leaving a vacancy at the very top of the court. A month later Eisenhower named Earl Warren, the governor of California, as Chief Justice using a recess appointment. Warren was a moderate Republican whom Ike admired and whose views were well known to him. 

Soon after the appointment of Warren, the matter of Brown v. Board of Education again came before the nation’s highest court.  The Chief Justice successfully brought about a unanimous ruling on May 17, 1954 that segregation in the nation’s public schools was unconstitutional because it violated the Fourteenth Amendment. But the Court also ordered that the case be reargued on the question of relief. The Administration was invited again to submit an amicus curiae brief, a “friend of the court” document in which a non-litigant may offer new information or perspective on the case at hand.

A spirited discussion developed within the Eisenhower administration over what position it should take on the brief and memos circulated among Attorney General Brownell, Solicitor General Simon Sobeloff, and others. On November 20 various attorneys met with the president, who was “anxious to test his thoughts with us,” later recalled Maxwell Rabb, one of the participants.

In Sobeloff’s papers in the Library of Congress there is a fascinating draft of the administration’s brief for Brown which contains edits and notations in Eisenhower’s handwriting in which the President stressed strong support for court-ordered desegregation.

“The Court’s decision in these cases has outlawed a social institution which has existed a long time in many areas throughout the country,” Ike wrote on the page proof. “The Court’s finding that segregation is a denial of constitutional rights is recognition of the importance of emotional [factors]; it is recognition that the impact upon the emotions of children can so affect their entire lives as to preclude their full enjoyment of constitutional rights.”

The president added that the Supreme Court decisions relating to Brown “have been fervently supported by great numbers of people as both legal and moral.” 

While presidents have frequently paid close attention to positions their administrations take on actions before the Supreme Court, the arguments are usually made by solicitors general or White House counsel. “So far as I can discover,” wrote attorney Victor H. Kramer in the journal Constitutional Commentary, “Eisenhower is the only president who personally changed words and added paragraphs in a draft of a Supreme Court brief.” 

Lucius Clay, one of Ike’s intimates and a close professional associate on the subject, noted that Eisenhower and Earl Warren “functioned as partners.” Warren established the court’s priorities, and Eisenhower, “by stressing compliance with Brown.” Eisenhower agreed with the ruling in Brown and lent the stature of the presidency to a ruling that was, in essence, “unsettled law”— there had not been laws beforehand that had established a widely recognized precedent. The president’s determination to enforce Brown effectively countered segregationists who opposed civil rights measures on the grounds of states’ rights. 

In due course, however, Eisenhower came to fear that Warren, who harbored presidential ambitions, had found an outlet for his political frustrations on the court by “expanding” its authority “well beyond its traditional and appropriate limits.” Others claimed that the Warren Court “proceeded to discover new ‘inherent rights’ not enumerated in the Constitution.”

When the next vacancy opened up on the Supreme Court, Eisenhower nominated reliable conservative John Marshall Harlan II on November 9, 1954, perhaps because the Brown decision had generated such fierce opposition among Southern lawmakers. Harlan, however, had a more nuanced legacy.  He was the namesake and grandson of John Marshall Harlan, the “great dissenter”—the justice who voted against Plessy v. Ferguson, the law that was overturned by Brown v Board of Education. Eleven southern senators voted against his confirmation. 

But, two years later, when the next vacancy occurred in 1956, Eisenhower told Brownell to search for a Democrat, preferably a Catholic, to be nominated for the position. “The president said the Supreme Court belonged to all the people and that [they] ought to know that [they] have a friend on [the Court].” 

Justice William J. Brennan Jr., a New Jersey Democrat, was selected. He later went on to become one of the longest-serving — and most progressive — justices on the bench. It is noteworthy that his selection took place during the 1956 campaign year.

It is perhaps fitting that Ike’s fifth and last nominee to the Supreme Court was the pragmatic moderate Potter Stewart, who often voted with the conservatives during the Warren Court but later emerged as a centrist swing vote on the Court under Chief Justice Warren Burger. He would vote against death penalty laws and was a key vote on the majority in Roe v. Wade. 

“The high caliber of Eisenhower’s judicial appointments is almost unanimously acknowledged,” said Ike’s Attorney General, Herbert Brownell, years later. “By the end of his second term he had, among other accomplishments, restored an approximate fifty-fifty balance between Democrats and Republicans on the federal bench, thus furthering his goal of subordinating partisan consideration in the selection of judges.”