The Nation Earl Warren Made

DATE December 7, 2006 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Journalist Jim Newton, author of "Justice For All:
Earl Warren and the Nation He Made," talks about the life,
including controversies surrounding former Supreme Court Justice
Earl Warren
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

I remember when I was growing up occasionally seeing "Impeach Earl Warren"
signs on highways. Back then I had no idea who wanted to impeach him or why.
Well, that story, other controversies surrounding the former Supreme Court
justice, as well as the legacy he left behind are described in the new
biography, "Justice for All: Earl Warren and the Nation He Made."

By guest is the author, Jim Newton. Warren oversaw so many important
decisions that Newton says today's America is in many ways the America that
Earl Warren made. Warren's story is particularly interesting in light of
today's closely divided court and charges from many conservatives that the
courts have become too activist. Earl Warren was appointed chief justice by
President Eisenhower and served from 1953 to 1969. Biographer Jim Newton
joined the LA Times in 1989 and has worked as a reporter and editor. He is
now the city-county bureau chief.

Jim Newton, welcome to FRESH AIR. So what were some of the accomplishments of
the Warren court?

Mr. JIM NEWTON: Well, I think you'd have to start with--the landmark
decisions of the Warren court would include the right of privacy in Griswold,
which is now, of course, the foundational right debated in the context of
abortion. The right to counsel in state trials. Before the Warren court,
poor defendants were in some states required to defend themselves. Probably
the biggest case of all, Brown vs. Board of Education, which curiously was
really Warren's first big decision as a Supreme Court justice, which
established the principle of school desegregation and then later the follow-up
cases after Brown which desegregated a whole host of public institutions.
Also a variety of cases in the area of police procedure, Miranda, probably the
best known, requires police to read suspects their rights. In case after
case, I think what's really interesting about them too is they were almost to
a case extremely controversial in that period and yet the rights that they
establish are really very much accepted rights of American life today for the
most part. So I think the Warren court's legacy has actually worn quite on
the country.

GROSS: Now you see Warren as a centrist figure that conservatives and
liberals have reasons to dislike.

Mr. NEWTON: Mm-hmm. That's right. Or maybe not reasons to dislike but have
come to dislike for the wrong reasons.

GROSS: OK. Would you explain?

Mr. NEWTON: Yeah. Of course. Warren, first of all, was a Republican and
very much an establishment figure in his period. He was the only three-term
governor in the history of California, a very popular governor across parties.
You know, a member of the Bohemian Club, a grand master of the masons. I
think, in every sense, a very sort of traditional establishment figure. At
the same time, he pursued a legacy on the Warren court obviously that was
controversial in its day, and I think that caused some Republicans, most
notably Dwight Eisenhower, to be very disappointed in him, and, at the same
time, I think he sort was too establishment and too 19th century for Democrats
ever fully to have embraced. So he ends up a little bit betwixt and between I
think our modern definitions of liberal and conservative and Republican and
Democrat.

GROSS: And one thing that a lot of liberals don't like about him is that he
supported the internment of Japanese Americans during World War II.

Mr. NEWTON: Absolutely, and in fact, there I think it's a really important
episode in Warren's life obviously for its implications for Japanese and
Japanese Americans, but also because I think that in internment you see--and
in other episodes in his life--a real core principle of Warren, which was his
patriotism and his sense of defending the national security. In the case of
the internment, it caused him to make the worst mistake of his life, which was
his enthusiastic advocacy of it. Later, it caused him to accept the
chairmanship of the Warren Commission when he was very reluctant to take the
job as the head of the commission, but President Johnson urged him to do so
and appealed to his patriotism to do it. He was deeply and all his life a
patriot.

GROSS: Earl Warren started in California as a prosecutor and attorney general
and then governor. His reputation when he worked in California was as an
anti-communist and he developed a pretty close relationship then with J.
Edgar Hoover.

Mr. NEWTON: He did, part of a lifelong and very complicated relationship
with Hoover. One is tempted to say that everyone's relationship with Hoover
was somewhat complicated. He got to know Hoover back in the '30s and, as you
say, they sort of bonded around their anti-communism as Warren was a very
stern and effective prosecutor whom Hoover appreciated. Their relationship
wore pretty well through the gubernatorial years. Warren called on Hoover for
help in vetting appointees and whatnot. It entered what I described in the
book as a sort of cooling phase not long after Warren becomes chief justice
and begins to issue opinions that are in defense of communists and in defense
of their civil liberties, and then it broke down forever in the wake of the
Warren Commission and its findings, which included some mild rebukes of the
FBI's handling of that case which Hoover never accepted.

GROSS: Earl Warren had hoped to be Eisenhower's choice for his
vice-presidential running mate. But that went to Richard Nixon which I guess
was the beginning of a very long rivalry between them. How did Eisenhower end
up giving Earl Warren a seat on the Supreme Court?

Mr. NEWTON: Yeah, well, two things. First, although it is an important
moment in Warren's rivalry with Nixon, the real seeds of their rivalry go back
to 1946 when Warren refused to endorse Nixon in his first campaign for
Congress, and--so really from the very beginning of the Warren-Nixon
relationship, there's tension, and it never goes away, although it really
blossoms in 1952 at that Republican convention when Warren was a candidate for
the Republican nomination and believe that Nixon had undermined his chances.
It's that convention which nominates Eisenhower. After Eisenhower is
nominated and ultimately elected, he considered Warren for a Cabinet post for
interior or justice. Warren had some reservations about that, frankly,
because of the money. Warren was never a rich man and had some reservations
about taking a job that would have effectively reduced his salary. But then
Eisenhower does promise him, after passing him over for the Cabinet, that he
will give him what he described as the first vacancy on the court. Eisenhower
when he made that comment did not anticipate that the first vacancy would be
the chief justiceship. He assumed that one of the associate justices would
leave, and when the first...(unintelligible)...Fred Vinson, Warren's
predecessor, died, it opened up the chief justiceship first, and Eisenhower
tried to withdraw from that promise to Warren at that point and equivocated.
Warren held him to the promise, actually went into hiding for a few days on an
island off the California coast to go hunting where he was out of telephone
range so he would cause Eisenhower to squirm over the implications of getting
out of this promise. Ultimately holds him to it, and, as we all know, secured
the chief justiceship.

GROSS: What was the Supreme Court like when Earl Warren became the chief
justice?

Mr. NEWTON: That's an excellent question and one which I think people would
do well to think about today. The most interesting thing to me about the
court that Warren inherits is that so few of his justices had been judges.
The five great justices of the early Warren court are Earl Warren, Felix
Frankfurter, Robert Jackson, William Douglas and Hugo Black. Not one of them
had had any significant service as a judge. Hugo Black had served briefly as
a night police court judge early in his career but he came from the Senate.
Robert Jackson had been attorney general. William Douglas came from the SEC,
and Felix Frankfurter was a Harvard law professor, and, of course, Warren had
been governor of California. And I think that one result of that was a sort
of intellectual diversity on that court that really brought a range of
experience and a breadth of vision to it that, ultimately, I think, was very
good for that court, and while today's court, by contrast, is all professional
judges, and while that's probably had the positive effect of making it
somewhat more professional in its legal analysis of cases, I do think it's a
narrower court today than the one that Warren inherited and ran for the 16
years that he was chief justice.

GROSS: What do you think Eisenhower was expecting Warren's politics on the
court to be?

Mr. NEWTON: I think Eisenhower made a fundamental misjudgment about Warren,
but an understandable one. I think he saw Warren as very much like himself,
and in some ways they were similar. They were both centrist, internationalist
Republicans. Both of them ran against Taft in '52 who represented a much more
conservative and isolationist wing of the Republican Party. So, in a sense,
they were vying for the same constituents and I think tended to see each other
in similar terms. What Eisenhower did not understand about Warren was that
Warren grew up in California which had its own very sort of unique politics
for the period and the really defining feature of Warren's politics growing up
in California is that he was a member of the progressive wing of the
California party. I think partly because that was not a terribly robust
political tradition outside of California, Eisenhower did not fully grasp the
extent to which he was buying into a tradition unlike his own, and I think
that goes a long way toward explaining his later disappointment with Warren as
chief justice.

GROSS: Well, Warren was a recess appointment and then when the Senate did get
to confirmation hearings, there was an attempt to smear his reputation. Would
you tell us who was behind that and what they had to say?

Mr. NEWTON: Right. In some ways, that was one of the most fun parts of the
research of the book for me because I discovered early in research on the book
that Supreme Court records--that the committee's private records of Supreme
Court nominations are sealed by statute for 50 years. So I was able to go and
unseal those--request the unsealing of these documents when the 50 years ran
and get really the first look at the Senate Judiciary Committee's records.
William Langer was the senator who was chairman of the judiciary committee at
the time, a very erratic character who used the committee hearings to wage an
unsubstantiated and in fact knowingly false campaign to smear Warren. He
accused him of public drunkenness, of having mismanaged California.

There were a whole variety of sort of personal and salacious charges against
Warren, none of which was substantiated and none of which were true, but for
Langer, it served the purpose of sort of rebuking Eisenhower. Langer at the
time was critical of the Eisenhower administration for not appointing more
nominees from his state, and at the same time, it had the effect of raising
Langer's profile nationally by associating with this campaign against Warren.
The great irony, of course, once they bring it to the vote on Senate floor,
there were no votes against Warren. He was approved by voice vote. And
Warren himself--and this is sort of curious to think about in retrospect,
Warren refused to testify at the hearings, because as he said, he had been a
recess appointee, he was already serving as the acting chief justice and felt
it would be a violation of the principle of the separation of powers for a
Senate committee to question a sitting justice. So he just avoided the
hearings altogether.

GROSS: My guest is Jim Newton, author of a new biography of former Supreme
Court Justice Earl Warren. It's called "Justice for All."

More after a break. This is FRESH AIR.

(Announcements)

GROSS: (Audio difficulties)..."Justice for All: Earl Warren and the Nation
He Made."

When Earl Warren became the chief justice of the Supreme Court, there was only
one other Republican on the court, and the Democrats on the court were very
divided. What were they divided over?

Mr. NEWTON: I think the defining division of the court that Warren inherited
was the debate over activism in the judiciary. And I think, you know, today
we tend to think of activism as sort of liberal judicial activism is the sort
of buzz phrase. It's important to remember that the debate over activism in
the early Warren court is really not ideological. It's really about the
proper place of the judiciary in American life, regardless of whether its
decision tilted left or right.

And the great examples of that, Felix Frankfurter was the principal advocate
of the early Warren court period, a restrained judiciary, restrained Supreme
Court. He was not, however, a conservative. He was a New Deal supporter,
Harvard law professor, quite liberal in his personal politics. He did feel
very strongly that the court risked undermining its place in society by
overstating and overstepping its jurisdiction and its responsibility for
American life. On the other side were Hugo Black and William Douglas, who
believed very much in an activist court that would reach out and address
problems and had an expansive view of itself.

And when Warren arrived, there was a bit of a sort of fight for his soul in
that earlier period. Frankfurter and Black each do their best to sort of woo
him to their camp. It's no surprise to me that Warren ended up a believer in
an activist judiciary and found Black's vision of the judiciary much more
appealing to him. Warren, after all, had come as a governor who was used to
reaching out and addressing problems, and I think he found that the arguments
for restraint is something close to shirking one's duty. I mean, he really
felt when cases came to him it was his responsibility to decide them and not
to avoid them. As he gravitates closer and closer to the Black wing of the
court, Frankfurter became increasingly disenchanted with Warren. In fact,
soon began to refer to him by the nickname the "dumb Swede," and Hugo Black,
meanwhile, very much enjoyed Warren and Warren settled quite comfortably into
the Black wing of the court.

GROSS: How do the meaning of activist court compare in the '50s when Earl
Warren became chief justice to what the meaning of it is now?

Mr. NEWTON: Well, I think there was a clear understanding that activism and
ideological position were two separate debates, so I think that there's
something of a misnomer at work in the current debates over activism and that
activism is associated almost exclusively on the national level with liberal
activism. And I just think that's frankly inaccurate. One can be an activist
conservative or an activist liberal, although it is true that the Warren
court's activism was generally more liberal than conservative. But the two
ideas, activism and ideological principle, are two, you know, entirely
separate questions.

GROSS: As chief justice, Earl Warren often wanted unanimity in major
decisions, and a good example of that is Brown vs. Board of Education which
outlawed school segregation. Why did he want unanimity?

Mr. NEWTON: I think, particularly in Brown, Warren understood, and he
understood this with the seasoned background of an experienced politician, he
understood that a divided court would send a message to those who would resist
the opinion that they had sanction to do so. The court that he inherited--had
the Vinson court decided Brown, I think it's clear that there would have had
at least three votes against the NAACP position and Brown. Warren understood
better than most that such a divided court would have given quarter to those
who would resist. As it was, those who resisted, resisted long and hard
enough, but I think a unanimous court, which he very worked hard to achieve
and which I think is a singular accomplishment that can be attributed to him,
he understood that a unanimous court would couple a legal result with a sense
of moral imperative, and while that did not have the effect of desegregating
schools as quickly as Warren would have liked, it did have other effects. It
did, for instance, give great protection to the early civil rights movement.
It heartened early civil rights leaders and throughout most of the civil right
movement, for the leadership of that movement to know that the Supreme Court
was united in its defense of those efforts.

GROSS: What did he do to unite the justices on this decision?

Mr. NEWTON: He really worked them. As I say, when he got to the court,
there were at least two votes against the NAACP position, the third having
been Vinson, who had died. But both Clark and Stanley Reed were highly
reluctant to endorse school desegregation. Stanley Reed only a few years
earlier had refused to even attend a Supreme Court Christmas party if black
pages were to be invited. So this is someone very steeped in a tradition of
segregation. Warren, from the very beginning, as I said, he inherited the
Brown case. Their first conference on the case was in December of '53. He
exercised a prerogative that the chief justice has which is to speak first in
the conference. When he spoke first, he made it clear that he felt the time
had come for the court to decide the issue and that he would be voting, that
he would support desegregation. That ordained the outcome because at that
point then it was clear that there were at least five votes to end school
segregation. So then the question becomes how to move forward, and Warren
indicated that he believed that the only way the court could uphold continued
segregation was by concluding that blacks were inferior to whites. That has
another effect on the court which is then if the issue was going to be framed
in such stark racial terms, then I think it became very difficult for
Frankfurter and Jackson, who were such advocates of a restrained judiciary and
had some reservations about the court taking an activist position in Brown,
but were also quite liberal in their personal politics. Frankfurter in
particular would have found it deeply uncomfortable to be on the wrong side of
a decision that was so nakedly framed in terms of race. Frankfurter had
appointed the first black clerk to the Supreme Court. He had a very
progressive record on racial issues before coming to the court.

So with those early comments and conference, I think Warren framed the debate
in a way that pushed it toward a united court and then he proceeded very
gently to sort of nudge the other justices along throughout the winter of 1953
and spring of '54. The very final person to come on board was Reed, and
Warren goes to him at the near of his deliberations and just says to him, you
know, `It's up to you. Is it going to be you or the country?' in effect, and
Reed at that point agrees to sign on. Jackson, who had also had reservations
about the case, not in ideological terms but in terms of what it said about
the court's activism, was in the hospital when Warren took him the case
personally. He read it, to great relief believed that he could sign it, and
actually dragged himself out of the hospital to be there on the day that it
was announced so that he could telegraph the court's unanimity on it.

GROSS: In your book, you describe how Chief Justice Earl Warren limited Brown
vs. Board of Education to desegregating the schools. Could he have expanded
the decision to other places and why did he limit it?

Mr. NEWTON: His interest in limiting it, I think, was largely to limit the
target that Brown offered to its critics. The court's great fear in that
period was that they would issue an order that would simply be disobeyed and
that that would undermine the court's authority. By limiting Brown, it had
the effect of limiting the opposition to Brown. I think Warren was to some
extent naive in thinking that that would make school desegregation go
smoothly, that--if anything, is just exaggerated by what's referred to as
Brown II, the case the following year which allows desegregation to proceed,
as the court infamously put it, all deliberate speed. All of that though was
an attempt to cajole and persuade Southern moderates, in particular, to go
along with the ruling. It did not have the effect of moving school
segregation nearly as quickly as Warren or his colleagues would have liked.
It did have the other consequence of encouraging the civil rights movement and
encouraging desegregation in other fields, and then the court after Brown
desegregates a number of other institutions one at a time, in each case simply
referring back to Brown, which is not a terribly satisfying approach for legal
theorists but had the effect of over and over signaling that a united,
unanimous court was not going to tolerate segregation in public facilities.

GROSS: Jim Newton is the author of the new book "Justice for All: Earl
Warren and the Nation He Made." Newton will be back in the second half of the
show. He's a Los Angeles Times city-county bureau chief.

I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

(Announcements)

GROSS: This is FRESH AIR. I'm Terry Gross, back with Jim Newton, author of
the new biography of Earl Warren, "Justice for All." Warren was appointed the
Supreme Court's chief justice by President Eisenhower and served from 1953 to
'69. The Warren court handed down many important decisions related to civil
rights, voting rights, freedom of the press and the rights of protest and
dissent.

The Miranda decision was handed down under Chief Justice Earl Warren and, as
you point out in your book, it's a kind of a surprising decision in a court
that's headed by a former prosecutor. What was Warren's thoughts about the
Miranda decision which requires police to read the rights to suspects when
they are arrested?

Mr. NEWTON: Mm-hmm. Warren was deeply offended by crime and, yes, he was a
prosecutor, but I think his experience as a prosecutor was--part of his
experience--part of the takeaway of his experience as a prosecutor was a
really stern belief that police and prosecutors should behave professionally.
And thus, I think Miranda is an expression of that very stern professionalism
that Warren practiced as a prosecutor, as a governor, and then finally as
chief justice. I do think it's safe to say that over time Warren became more
insistent on a higher degree of professionalism than he practiced himself as a
prosecutor. Some of Warren's cases as a prosecutor would not have withstood
the Warren court's scrutiny. Some people see that as a contradiction. I
intent to see it more as this sort of natural evolution of a person who did
grow as he got older and who grew into this job. I think through the time he
was chief justice, he became increasingly offended by what he saw as sloppy or
unprofessional police practices. And Miranda's in a sense the apotheosis of
that development.

GROSS: When I was growing up, there were "Impeach Earl Warren" signs on
highways in a lot of places. And you devote some of the book to the "Impeach
Earl Warren" movement which got started in 1961.

Mr. NEWTON: Mm-hmm.

GROSS: Who was behind it?

Mr. NEWTON: The John Birch Society was behind it. The John Birch Society,
which was the creation of a guy named Robert Welch. The Birch Society--Warren
always viewed the Birch Society's efforts as more an effort at self-promotion
than a genuine attempt to impeach him. And it's true that no impeachment
articles were ever brought against him. No serious attempt was ever made to
impeach him in Congress. That said, it became--it did tap a deep vein of
resentment toward Warren and the Warren court. And as much as Warren himself
tried to shrug it off, there is evidence that it did get under his skin at
times. There are clerks who remember him wincing to references to the signs
and even he admitted that it bothered his wife. It was a long, and as I say,
even an ultimately unsuccessful in the sense of a political impeachment. It
was a huge national highly visible attempt to really call into question the
legitimacy of the Warren court.

GROSS: What did the John Birch Society have against Earl Warren?

Mr. NEWTON: Well, there are a few areas in which the Birch Society adamantly
disagreed with the Warren court's rulings. It was--it believed that the court
had overstepped its authority with--in respect to desegregating public
institutions, and it believed, quite fiercely, that the Warren court in its
defense of the civil liberties of communists had exposed the country to danger
from subversion. It is worth remembering, though, too, that the Birch Society
had a tendency to see support for communism and communists in a lot of
different quarters. They at one point accused Eisenhower himself of being
suspect. So they drew a pretty low threshold for what constituted support of
subversion and communism. They also were highly critical of other justices of
the Warren court as well. But, you know, as one of the great scholars of the
Warren court, Scott Poe has written there's a reason why there weren't
"Impeach Bill Brennan" signs. I mean, Warren became--Warren was the clear
leader of that court and the clear target of the Birch Society and the clear
symbol of what they saw as a sort of reckless excess of the court.

GROSS: Did Warren intentionally leave the court so that President Johnson
could appoint his successor and that it wouldn't fall to President Nixon?

Mr. NEWTON: Yes. I think so. Warren denied that. Warren's stated reason
for announcing his retirement in 1968 was that he had just gotten old. He had
been in public life for over 50 years and the time had come to retire. I
think it was notable, however, that he did not express concern about his age
or an interest in retiring until after Bobby Kennedy was shot and killed and
the presidential campaign of 1968. When Bobby Kennedy dies, it becomes quite
clear to Warren who was, after all, a very astute observer of national
politics that Nixon was the likely next president. And Warren was not
inclined to let Nixon replace him. He, therefore, retires. He announces his
retirement but says he will leave the court once his successor is confirmed.

Johnson then appointed or nominated Abe Fortis to succeed Warren, and Johnson,
I think, at that point, really overestimated his own authority and his own
power. Johnson was in the last year of his administration and an
administration badly weakened by Vietnam. He had announced his intention not
to seek re-election. And at the confirmation hearings that summer, first
opponents of the Fortis nomination stall and then various disclosures come out
about Fortis which undermine the confirmation--his confirmation, so
ultimately, Fortis is forced to withdraw his nomination for chief justice.
Then there's the very awkward moment where Warren has announced he will--that
he's too old to continue serving, and he's ready to leave, but once Fortis
withdraws, then his retirement has been predicated on the nomination of his
successor. And there is no successor, so both he and Fortis then returned for
the 1968 term on the court. And, of course, that meant that once the
vacancies arose, first--well, both Fortis and Warren, that it was, in fact,
Nixon who replaced them.

GROSS: So who did Nixon replace Earl Warren with?

Mr. NEWTON: He replaced him with Warren Burger and oddly, Warren Earl
Burger. Their--beyond their sort of curious names--the transposition of their
names, very different figures. Warren--Earl Warren was deeply suspicious of
Warren Burger. As he would've been, probably, of any nominee that Nixon put
forward, but Earl Warren considered Burger an unworthy successor and someone
who he very much was concerned about what Burger would do to the court.

GROSS: Considering that Nixon and Warren had not only a rivalry, but they
really disliked each other, it must've really hurt Warren to know that his
successor was going to be appointed by Nixon.

Mr. NEWTON: Yeah. I think there's no question about it. It--he did
everything he could to keep that nomination out of the hands of Richard Nixon
and then ultimately was forced to give it to him. And I think it had to give
him a pain as well to swear in Nixon as president.

GROSS: How did Nixon change the court?

Mr. NEWTON: Well, Nixon and Ford replaced five of the justices--of the
Warren court justices. It was, therefore, just in simple terms of its
membership, a very vastly changed court from the court that Warren left. I
believe in some ways, though, the court changed less ideologically than Nixon
thought it would. And there's a whole--now that's sort of beyond the scope of
this book, but there's a whole set of explanations for that. Not the least of
which is the Harry Blackman, one of the Nixon appointees turned out to be far
more moderate, I think, than people thought he was going to be. It is, after
all, a Republican appointee, Harry Blackman, under Chief Justice Warren Burger
that issued Roe vs. Wade. Many people today, I think, think that Roe vs.
Wade was a Warren court decision because it seems in line with the Warren
court's ideology and activism. The fact is it's a Burger court decision. And
so, in that field and in many others, I think where people thought there would
be a real radical retooling of the Warren court legacy, I think it ended up
being less traumatic than Warren feared and less traumatic than some of the
critics of the Warren court had hoped.

GROSS: What do you see as being Earl Warren's legacy?

Mr. NEWTON: On a national scale, I think that the architecture of civil
liberties that we enjoy today in this society are largely there. Not
exclusively, but largely there because the Warren court and Earl Warren put
them there. Whether it's a right to privacy or a right to counsel or a right
to vote in elections that--where votes are counted equally. Whether it is in
the principle of integration as a value of American society. These are the
real hallmarks of a mature society, and it's important to remember that they
were not there pre-Warren. And so I think Warren personally and certainly the
Warren court deserves a huge amount of credit for leaving a legacy of a fairer
and more mature country. There is a separate legacy and that is in California
that is not, obviously, national in scope, but Warren left a legacy in
California of genuine political centrism. He--in 1946, he was nominated not
only by the Republican Party in California but also by the Democratic Party
for governor. That is an altogether unimaginable achievement in modern
California life. But he really does leave for California a sense of what it
is to genuinely govern from the center. And I think that, too, while that is
not national in scope, that is a profound contribution to the history of the
nation's largest state.

GROSS: Are there things that you're looking for in the Supreme Court of today
or ways that you're looking at it that you wouldn't have thought of before
doing the research on your Earl Warren book?

Mr. NEWTON: Two of the stark differences, I think, between the court today
and the court in Warren's period, I am much more mindful of today than I was
at the beginning of the book. And that is one that is clearly more of a
diverse court today in terms of the fact that there are, obviously, women on
the court. There was not when Warren was there. It is racially more diverse
than in Warren's period. And yet, it is not intellectually and by experience,
the diverse place that it was in the Warren years. And I think that the--it
is a by-product of our confirmation process that administrations in recent
years have been reluctant to put up nonjudges for the court. And I think
that's unfortunate. And I am much more mindful today than I was at the outset
of the research of the book of how much of a price the court and country had
paid for an unwillingness to think more broadly about who should be considered
qualified candidates for the court.

GROSS: What is the price you think we've paid?

Mr. NEWTON: I think we've accepted a court that is much narrower in its
world view. That the--one of the great strengths of the Warren court is that
it drew its great minds--its leading justices out of different walks of life
and allowed them to argue out these much broader--these issues of the law in a
context of a much broader style of debate about where the court fit into the
larger structure of government--American government, American law and American
life. And I think today's court by confining itself to more narrow legal
questions, it is a much less robust institution than the one that Warren
headed. And I think that that's diminished as a result.

GROSS: Well, Jim Newton, thank you very much for talking with us.

Mr. NEWTON: It's my great pleasure. Thank you.

GROSS: Jim Newton is the author of "Justice for All: Earl Warren and the
Nation He Made." Newton is the LA Times city-county bureau chief.

Coming up, our book critic Maureen Corrigan has made her list of the year's
best fiction.

This is FRESH AIR.

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Review: Book critic Maureen Corrigan talks about her list of best
fiction books for 2006
TERRY GROSS, host:

Get out your pencils, paper and charge cards. Book critic Maureen Corrigan
has drawn up her list for the best books of the year. Here's part one of her
list, best fiction of 2006.

Ms. MAUREEN CORRIGAN: Nothing makes you appreciate good books more than not
being able to read them. That's the fix I found myself in for a few weeks
this past summer. I was recovering from eye surgery and mostly had to stay
still with one eye closed. Of course, I listened to public radio round the
clock, but loved ones also brought me books on tape. `Nothing complicated,' I
pleaded in my weakened state. `I just want good stories.' So in came the
recordings of overly cozy mysteries and Maeve Binchy novels read by actors
with too much blarney in their voices. What saved me was a droll recording of
Allegra Goodman's first novel, "Kaaterskill Falls." My husband brought it home
from the library because a few months before misfortune struck, I'd been
raving about Goodman's second novel called "Intuition," one of my candidates
for one of the best novels of 2006.

"Intuition" takes place in a cancer research laboratory in Cambridge,
Massachusetts. Goodman likes to delve into the intricate relationships among
people in close communities. "Kaaterskill Falls" was set in a summer vacation
bungalow colony of Orthodox Jews. The big idea "Intuition" explores is how do
we discern the truth? To mull over that question, Goodman, like her scientist
characters, takes up a microscope. She's a miniaturist, who like Barbara Pym
and Jane Austen finds wit as well as wisdom in small details. Here, for
example, is how she nails the character of a star oncologist who heads the
lab.

(Reading) "He radiated hope to every patient. Instead of death, he dwelt on
baseball games and the Boston Marathon. He set himself squarely against every
cancerous cell and so inspired his patients into battle that magically even
the most sophisticated believed that he could never fail them. Their worry
was that in dying, they might fail him."

Another superb novel that also kept its focus trained on a few complex
characters was Claire Messud's, "The Emperor's Children." The children of the
title are three friends nearing 30 who live in New York and have the kind of
jobs--documentary filmmaker, editor, book critic--that look great on paper,
but don't always cover the rent on their Manhattan apartments. Messud
deliciously exposes and slowly unwinds the illusions that wrap her characters
in a sense of their own superiority. The climatic scene of "The Emperor's
Children" takes place on September 11th.

Two other works of fiction that came out this year also successfully tackled
that tough subject. The title story of Deborah Eisenberg's fine short story
collection, "Twilight of the Superheroes," describes the attack on the World
Trade Center, while most of the five stories that follow take place in what
we've now come to call the post-9/11 world. Politically charged, these short
stories aren't just mausoleums for finely wrote feelings.

Ditto for Ken Kalfus' extraordinary novel, "A Disorder Peculiar to the
Country." A political satire, it links the private nightmare of a marriage
gone sour to the public nightmare of 9/11.

Finally, Katherine Weber's terrific novel, "Triangle," deserves mention in
this Gotham lineup. The tragedy at its center is not 9/11, but rather the
infamous triangle shirtwaist fire of 1911. I lazily thought the subject had
been all but exhausted, especially after Washington Post reporter David Von
Drehle's excellent nonfiction book on the subject, also called "Triangle" that
came out in 2003. Nope. At the center of Weber's clever and moving tale is
the last survivor of the fire, a woman now over 100 who remembers far more
than she lets on to those eager to capture her recollections for their oral
history projects.

Two Alices also makes the best fiction list this year. Alice Munro, whose
autobiographical stories, "The View from Castle Rock," begin with imaginative
reconstructions of her ancestors' immigration from their bleak farms in
Scotland. And Alice McDermott, whose novel "After This" is a haunting account
of how the sweeping social changes of the 1960s affected one lower
middle-class Irish Catholic family on Long Island.

Speaking of families, Ernestine Gilbreth Carey died in November at the age of
98. Who you might ask? Well, Mrs. Carey was the author, with her brother
Frank Gilbreth Jr., of the beloved 1948 best seller, "Cheaper by the Dozen."
The story of the Gilbreth brood and their parents still fascinates as
evidenced by the recent Steve Martin movie remakes of the book.

And last, but certainly not least this year, Richard Ford's novel "The Lay of
the Land" also explores the complexities of family, especially after divorce
and remarriage. "The Lay of the Land" is the final volume in Ford's Frank
Boscombe trilogy that began with "The Sportswriter" in 1986 and continued
through "Independence Day" in 1995. Some of my most recent blissful moments
were spent listening to Frank's musings on everything from the Bush presidency
to the chummy atmosphere of a lesbian bar to the teeth gnashing familial
conviviality of Thanksgiving. If there were ever a reason this year to be
especially grateful for the gift of clear sight, Ford's as the author and mine
as the lucky reader, it's embodied in "The Lay of the Land."

GROSS: Maureen Corrigan teaches literature at Georgetown University. Her
list of the year's best novels and short story collections will be on our Web
site, freshair.npr.org.

Coming up, rock critic Ken Tucker reviews the new CD by My Chemical Romance.

This is FRESH AIR.

(Soundbite of music)

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Review: Critic Ken Tucker reviews new CD by My Chemical Romance
TERRY GROSS, host:

My Chemical Romance is a New Jersey quintet whose dark musical approach has
gotten them labeled as an emo band, a term referring to their general
down-beat world view. The band's new third studio album is called "The Black
Parade," and rock critic Ken Tucker says it's a more pleasurable experience
than their reputation might suggest.

(Soundbite from "The Sharpest Lives")

Mr. GERARD WAY: (Singing) "Well, it rains and it pours when you're out on
your own. If I crash on the couch, can I sleep in my clothes? Because I
spent the night dancing and I'm drunk, I suppose. If it looks like I'm
laughing, I'm really just asking to leave this alone. You're in time for the
show. You're the one that I need. I'm the one that you loathe. You can
watch me corrode like a beast in repose. Because I love all the poison. Away
with the boys in the band. I've really been on a bender, and it shows. So
why don't you blow me a kiss before she goes? Give me a shot to remember..."

(End of soundbite)

Mr. KEN TUCKER: My Chemical Romance has made a big, messy, pretentious album
that turns out to be what the band probably did not intend, a lot of fun.
Which is to say, when you fill your album with bombastic hymns to death and
loneliness, when you give interview citing Queen and System of a Down as your
inspirations, you're out to impress, not merely amuse. But there is nothing
merely amusing about "The Black Parade." It's loaded with ringing guitar
chords and the kind of squawking crescendos that make for a hard rock
collection you want to shout along with as you run down the street with the
band bellowing from your iPod.

(Soundbite from "House of Wolves")

Mr. WAY: (Singing) "Well, I know a thing about contrition, because I've got
enough to spare. And I'll be granting your permission, because you haven't
got a prayer. Well, I said hey, hey, hallelujah, I'm going to come on sing
the praise. And let the spirit come on through you, we got innocence for
days! Well, I think I'm going to burn in hell, everybody burn the house right
down. And say, ha, what I want to say. Tell me I'm an angel, take this to my
grave. Tell me I'm a bad man, kick me like a stray. Tell me I'm an angel,
take this to my grave."

(End of soundbite)

Mr. TUCKER: Lead singer Gerard Way has white blond hair and the upturned
chin hauteur of a man who wears rock stardom like a uniform. Like, in fact,
the tight, black dandyish suits that My Chemical Romance currently wears on
stage as symbols of their bleak integrity. Clearly, these are men on a
mission to remind you how much heartbreak really aches. Nowhere is this more
obvious than on "Welcome to the Black Parade," clearly conceived as a grand
statement. "Black Parade" comes complete with shifts in tempo into the sort
of grandiose baroque that puts a smile on your face while their faces grimace
and pout.

(Soundbite from "Welcome to the Black Parade")

Mr. WAY: (Singing) "When I was a young boy, my father took me into the city
to see a marching band. He said, `Son, when you grow up, would you be the
savior of the broken, the beaten and the damned?' He said, `Will you defeat
them, your demons, and all the nonbelievers, the plans that they have made?'
`Because one day I'll leave you, a phantom to lead you in the summer, to join
the black parade.'"

(End of soundbite)

Mr. TUCKER: The tone and timbre of Gerard Way's voice on that cut, as well
as the rock operatic swell of the music comprise My Chemical Romance's
clearest homage to Queen, the '70s rock band led by the similarly
over-reaching Freddie Mercury. We used to have a name for this sort of stuff
back then, pomp rock, as in pompous. To counteract this, the band employs
producer Rob Cavallo, who keeps Green Day sounding punktastic. He helps to
prevent Chemical Romance music from becoming mired in dolorousness. Together,
they turn out good power ballads such as this one, "I Don't Love You."

(Soundbite from "I Don't Love You")

Mr. WAY: (Singing) "Well, when you go, don't ever think I'll make you try to
stay. And maybe when you get back, I'll be off to find another way. And
after all this time that you still owe, you're still the good-for-nothing I
don't know. So take your gloves and get out. Better get out while you can.
When you go, would you even turn to say, `I don't love you like I did
yesterday.'"

(End of soundbite)

Mr. TUCKER: The chief flaw in My Chemical Romance's method are their verbal
cliches. So much talk of death, isolation, pain, blood, betrayal, lies,
infection, even cancer. Such overstatement is tiresome. As I said at the
start, the comforting effect may not be what they originally intended in
getting so hot and bothered and ambitious, but it sure feels good.

GROSS: Ken Tucker is editor at large at Entertainment Weekly. He reviewed
"The Black Parade" by the band My Chemical Romance.

(Credits)

GROSS: I'm Terry Gross.

(Soundbite from "Famous Last Words")

Mr. WAY: (Singing) "Now I know that I can't make you stay, but where's your
heart? But where's your heart? But where's your...and I know there's nothing
I could say to change that heart, to change that part, to change...so many
bright lights been cast a shadow...(unintelligible)."

(End of soundbite)
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