Original subtitles

Earl Warren, Chief Justice of the United States,

I am pleased to confer upon you the degree of Doctor of Law.

soft pensive music

I like to think of the law as a shining,

concentrated light.

If we, who are privileged to be servants of the law,

can successfully concentrate upon upholding the rule of law,

we can be assured

that there can be no finer commitment

of our talents and our energies.

- Goodbye! - Gun ban!

- Goodbye! - Gun ban!

My body! My choice!

My body! My choice!

The Court's strength comes from its

perception of legitimacy.

And legitimacy, I think, comes from the idea that the Court is

perceived as being involved in doing something different than

ordinary, everyday politics.

I, Neil M. Gorsuch do solemnly swear...

I, Neil M. Gorsuch, do solemnly swear...

I, Brett M. Kavanaugh, do solemnly swear...

I, Brett M. Kavanaugh, do solemnly swear...

I, Amy Coney Barrett, do solemnly swear...

We're living under the rule of six at the Supreme

Court... six conservative justices.

In the last term, we saw Roe v. Wade overruled.

In roughly half the country,

abortion is... as of now or soon will be... illegal.

We saw an absolute revolution in

the scope of gun rights.

Today, the Supreme Court struck down a New York State law

restricting the carrying of concealed guns.

We saw a revolution in

dismantling the separation of Church and State.

The Court here saying that the First Amendment

guaranteed that this coach could, in fact,

pray on the 50-yard line after games.

And we saw a revolution in

administrative law.

A major ruling severely limiting the EPA's

ability to fight climate change.

This was a revolution in a single term

across a broad swathe of law.

But instead of stepping back,

the Court has decided to take a whole bunch of cases

that open up new fronts.

The Court typically relies upon the public's support to ensure

that its judgements will be heeded.

This Court appears so convinced of its own power

that it doesn't seem to worry that it might lose public

support in a way that might actually erode its power.

And I think the real question is:

is the Court right in that prediction?

curious theme music

Part of the role of the Court is that it

is gonna protect people who may be vulnerable

in the political process.

I assure you, I have no agenda.

My only agenda is to be a good judge.

There's no difference between a white snake and a Black snake;

they'll both bite.

My approach, I believe, is neither liberal,

nor conservative.

My colleagues and I want to be the most trusted people

in America.

I think we all feel strongly in this

country about our privacy; I do.

I believe the Constitution protects the right to privacy.

Are you a gang rapist?

No.

Life's challenges place hurdles every day,

and one of the wonderful parts of the courage of America

is that we overcome them.

Do you affirm that the testimony you're about to give

before the committee will be the truth,

the whole truth, and nothing but the truth,

so help you God?

I do.

Ominous music

energetic percussion

For the first century of American history,

there were virtually no Supreme Court cases dealing with

individual rights.

The cases primarily about individual rights were

protecting the rights of slaveowners to have custody of

their slaves.

Soft piano music

Dred Scott is the case that gets decided just before the

Civil War, and the Court basically says,

"African Americans, slave or free,

have no rights that white people are bound to respect."

And it was clear to the Court and Justice Taney that

Dred Scott didn't have the right to be able even to sue.

And why is that?

Because he's not an American citizen;

he's below all of that.

Dred Scott was overturned by the 14th Amendment.

That was passed after the Civil War to protect the rights of

newly-freed slaves,

and it says, "No state shall deprive a person

of their liberty without due process of law."

And as we go into the late 1930s,

the Court begins to think about

how it might be possible to

protect minorities.

Maybe the reason why there are state statutes that prohibit

Blacks and whites from being educated in the same schools is

because Blacks couldn't protect themselves

in the political process.

And so this is a view of the Court's role in a democracy...

that our job is to protect Democracy,

to protect individuals who can't fight for themselves.

And it's that idea that really takes root during

the Warren Court era.

Triumphant orchestral newsreel music

President Eisenhower appoints Governor Earl Warren of

California as Chief Justice of the Supreme Court.

The 62-year-old Californian, shown here with his family,

becomes the 14th man in our history to occupy the nation's

highest judicial post.

He will preside over a tribunal which is faced with

history-making decisions.

Earl Warren had been promised the first seat on the Supreme

Court by Dwight Eisenhower.

Jaunty music

He had been a huge player in Republican Party politics,

and it was simply a kind of political favor to give Warren

this job.

He didn't know it was gonna be the Chief Justice,

but he was locked into that promise.

I never spoke to a single senator.

A few of them, in passing, would say to me,

"Well, I'm... I'm for ya."

And so I just sat tight, never spoke to anybody,

and eventually, it went through.

It was a tremendous event when

Justice Warren came.

There was tremendous fear and hope about him.

Was he going to be on the Liberal side of the Court?

Or was he gonna be more or less a Conservative?

It's always difficult to tell what's going to happen to

someone who's been appointed to the Supreme Court.

There were certainly clues that Warren would

become the Chief Justice he became.

He was a Republican Progressive

who was beloved in California

by Democrats and Republicans alike.

He had signed legislation repealing

the segregation of Mexican-American children

in California public schools.

The darkest moment in Chief Justice Warren's history was

when he allowed the Japanese internment.

He was bowing to the war hysteria.

It was a shameful mistake, but Warren knew it.

At the very end of his career,

he expressed contrition for this terrible mistake.

Prior to the Warren Court, the Court had begun to move

in the direction of protecting minority rights

and individual freedoms.

But what the Warren Court did was to accelerate the process.

This happened at a time in which the South hadn't seen

democracy in almost 100 years.

It was pretty much 80 years of Jim Crow,

it was 80 years of African Americans being disenfranchised

in the South.

He made a decision that the Court would take this role,

and not only just take a role, but take a starring role in

trying to force the political branches to pay more attention

to these issues.

I think it's fair to say that the Warren Court sought to use

the Constitution as an engine of social change,

of social progress.

Jaunty curious music

Our strength is in our diversity.

Our power is in freedom of thought,

and of research.

Earl Warren believed that all of life was guided by

certain ethical imperatives, one of his biographers said.

And the law was no different than that;

he thought the law had to have a certain sense of morality to it.

It had to be guided by a sense of fairness,

of justice, of equity.

And so he thought that the cases before them were a chance to

show that the law was fair, show that the law was just...

and to craft their decisions accordingly.

We believe that the proper place for the issue of

segregation is in a court, and not in the political arena,

where you have the probable jurisdiction

of differences of opinion not connected with the law.

By any measure, I think Thurgood Marshall is the most

consequential and impactful civil rights lawyer

in the 20th century.

He is responsible for a large majority of all of the

significant civil rights decisions the Court hands down

from 1940 to 1960.

What's remarkable about Thurgood Marshall and Earl Warren is

how similar their philosophies end up,

viewing the law as not an end unto itself,

but as a means... a means of achieving social change,

a means of vindicating moral views

of how society should be constructed.

But those views... those understandings... are formed

from such different backgrounds.

Exciting music

Marshall's early life was in the city of

Baltimore, Maryland.

It was an era of segregation

and of repression of the rights of African Americans.

I think his father was very much bothered by the injustices that

existed in the society in which they lived.

And Marshall said he probably learned his first lessons about

being a lawyer at the dinner table.

My grandfather taught him how to argue,

how to get his points together to make a good case.

All through school,

Marshall was smart but not always one to apply himself,

and this often got him in trouble.

One way they tried to get his attention was by having him go

to the basement and memorize parts of the US Constitution,

not knowing that they were preparing a future

Supreme Court Justice.

What Marshall's always said is that he thinks

that his learning the Constitution was one of the

things that drove him to work for the rights of all citizens

to have access to what the Constitution promised.

My grandfather would quite often take my father and

my uncle to court to hear cases.

I'm sure that's something that always played in my dad and my

uncle's mind was

"Why aren't there people that look like us sitting there

as a judge?"

Marshall wanted to go to law school at the

University of Maryland, and they were not accepting

African-American students.

The only possible way I could get an education was

at Howard.

So I went over to Howard in 1930.

At Howard Law School, Charles Hamilton Houston was really

creating and incubating an army

of Black lawyers who saw themselves, as he said,

as "social engineers."

When Marshall gets out of law school,

he's invited by Houston to travel through the South to look

at Black schools... segregated schools... to really do some

studying and recording of those issues for the NAACP.

Charles Hamilton Houston made films traveling

through the rural South, seeing what the conditions were.

There are stories of my dad typing briefs in the car

as Mr. Houston drove.

Thurgood Marshall has this sense,

informed by his experience, of where there's room to build

consensus about the worst parts of Jim Crow,

and which battles are gonna be the hardest.

They really are writing the book,

as they're going along, about how to build a series of small

but increasingly-significant victories

into what ends up being a tidal wave toward the judicial

establishment and judicial protection of modern

civil rights.

Soft tense music

We started the attack on segregated education at the

graduate- and professional-school level,

because that was an easier thing to do,

legally speaking.

Most of the southern states had not provided so-called "separate

but equal" graduate and professional schools for Blacks.

Marshall's first successful case,

which he tried with Charles Hamilton Houston,

was in 1935,

challenging segregation at the University of Maryland

Law School.

My first idea was to get even with Maryland for

not letting me go to its law school.

They had given a scholarship; funded Negroes could go outside

the state and get tuition paid.

And I took the position that wasn't good enough.

And that little win was the first little

opening.

They went next to the University of Missouri Law School,

and they continued on to the University of Oklahoma

Law School.

And they finally challenged segregation at the University of

Texas Law School.

The Court goes all in and says, "In Oklahoma,

you can't have a graduate student who's part of the

program confined to a different part of the cafeteria,

a different part of the library, a different part

of the classroom."

And in Sweatt, you can't have a hastily-erected law school

compete with what is the flagship law school in not just

the state, but even the entire part of the country,

suggesting that there are intangible respects in which

separate educational facilities can't actually be equal.

That's when, I think, the bulb goes off that it's time to go

after segregation in primary schools.

We decided the time had come to attack the public

school segregation.

There wasn't any question in my mind... I don't think in

Thurgood's mind... that we had to win.

Couldn't possibly lose that case.

Tense curious music

typical Midwestern city,

neither small nor large, population around 120,000,

less than 10 percent of them Negro.

The Reverend Oliver Brown lived three blocks from Sumner School,

but his daughter Linda couldn't go there because Sumner was for

white children only.

So she became a test case for the NAACP Legal Defense Fund...

Brown versus the Board of Education.

In the 1952-'53 term of court,

the Court heard arguments in Brown v. Board of Education from

the NAACP and Thurgood Marshall,

and the justices were divided.

Chief Justice Vinson had been leaning towards overturning

Plessy v. Ferguson,

but he couldn't find the constitutional grounds for it.

The Supreme Court,

in Plessy v. Ferguson in 1896,

had held that "separate but equal" was constitutional.

So the question was whether it was appropriate for the Court to

overturn that decision and say,

"No, 'separate but equal' is wrong, it's incompatible with

the Equal Protection Clause,

and it should be unconstitutional."

Instead of deciding the case during the

1952 term, the Court asks the parties to brief a whole bunch

of additional questions.

And then in September of 1953, Chief Justice Vinson has a

massive heart attack, and dies at the age of 63.

That's how Earl Warren becomes Chief Justice by the fall

of 1953.

Fate brings Thurgood Marshall and Earl Warren together at a

time when their philosophies were perfectly aligned

to sort of push the Court to think of the Constitution

and its promise of equal protection as something that

actually could be operationalized on the ground

to change, really, the structure of society.

This is a part of the group of lawyers from all sections of the

country who are here in the Supreme Court for the purpose of

arguing the school segregation cases.

Some said it was gonna be seven to two... all kind of bets.

I was the only one that didn't bet,

and I said, "I'll take five to four.

It don't matter, just as long as I win it."

That's all I wanted to do.

That's a darned important case!

Warren made very clear from the start two things.

First of all, he's told them very clearly that the Court was

gonna overturn Plessy.

And secondly, he pointed directly to Thurgood Marshall...

not just the arguments he had made,

but the way in which he'd make them;

the eloquence, the intelligence that he had made them...

and he said, "Look, we have before us an obvious proof

that this idea that Negroes are inferior is nonsense."

Chief Justice Warren dedicated himself to making sure that

there was a unanimous result invalidating racial segregation.

The last person on the Supreme Court who was a hold-out was

Justice Stanley Reed of Kentucky,

and Chief Justice Warren went to Justice Reed and said,

"Stan, you're all on your own now.

You have to decide whether it's in the best interest of the

nation for you to write a dissenting opinion."

On May 17th, 1954,

the Supreme Court hands down a unanimous decision.

Chief Justice Warren said that when he read the opinion in the

marble palace that is the Supreme Court,

when he said it was unanimous, that there was a wave of emotion

that went through the room.

No one said anything, but you could feel that it was palpable

that this was a great decision, and that the fact that it was

unanimous made it all the greater still.

From then on, we could see a Chief Justice who was going to

go down in history because of his courage

in protecting the rights of Black Americans,

which was not the most popular subject in the country.

You are not going to permit the NAACP to take over your schools!

You are not going to permit the NAACP to control your state!

And I'll tell you something about all southern people:

we are not going to permit our little children

to be used as pawns in a game of power politics

to get the racial vote in northern cities!

I guess there was a time of naiveté where perhaps I felt

that, once the decision was made,

that that would end the battle, but that really only began the

battle.

Our view was that if we won that decision about

segregation, that we had licked the race problem.

What we didn't realize then that the real race problem is not in

segregation itself, that segregation was a symptom of it.

Now, what the real problem was white supremacy.

The first major resistance,

of course, came in the Little Rock case,

when Governor Faubus decided to defy the Supreme Court.

Tense curious music

In Little Rock, we are interested in preventing a mob

from overriding the Constitution of the United States.

That's all we're interested in.

Every American must understand that if an individual,

a community, or a state is going successfully and continuously to

defy the courts, then there is anarchy.

Eisenhower sends troops into Little Rock to

compel compliance with these court orders.

And in the middle of the battle over desegregation

in Little Rock, the Court issues this remarkable decision,

where they all say in one voice,

"In Brown, we said separate is inherently unequal,

in Brown we said, you know, segregated public schools are

unconstitutional.

When we said that, that was the law of the land,

and it is now the obligation, not just of Arkansas courts,

but of Arkansas public officials of Little Rock School Board

members... to abide by our decisions."

Any action on the part of any official in Arkansas

or any private individual

to oppose desegregation of the schools of Little Rock

is deliberately-calculated

violation of the law that is now clear.

Tender music

It's a mistake to view Supreme Court decisions as having their

meaning become immediately clear.

Their meaning sometimes emerges only over the passage of time.

I think the Brown decision's greatest impact

was on the Black community,

which took courage

and decided that they did have an ally,

and that was the Supreme Court.

And that all the things which had demeaned them for years

and the things which they thought would never be done

away with,

they had become convinced that they could be done away with.

Blacks began to demand their rights,

and that's why you found, with this whole transformation,

the image from sort of a docile, accepting group to a

fiercely-demanding group insisting on their rights.

Thurgood Marshall is, in many ways,

the face of the NAACP in the South,

and it's not a welcomed face for most white southerners.

They see him as someone who is out stirring up trouble,

who is not responding to the needs of African Americans of

the South but instead instilling in them this new idea that they

should be unhappy.

Really, do you feel any sympathy for...

any understanding of the southerner?

The white southerner who was forced,

suddenly, to change not only his attitude,

but his whole way of life?

I... I have as much sympathy as I could have for anybody.

I recognize it is a tough problem.

It's a problem that, at times, would seem to the average

southern white man as being insoluble.

I recognize it, and I, for one, would do everything in my power

and so would the NAACP... to work it out in a way that would

be satisfactory to both sides concerned.

A record number of Americans... upwards of 67

million... go to the polls to elect the 35th President of the

United States.

The unexpectedly-delayed climax saw Senator Kennedy the victor,

with a clear margin of electoral votes.

President Kennedy did appoint Thurgood Marshall to the lower

court bench, signaling his cautious embrace

of civil rights.

There is very strong opposition to his

nomination in the South.

What the Kennedys do is to actually appoint him when the

Senate is on vacation, and this way,

he's able to start in the job, getting experience.

The difficult thing is when the Senate comes back,

they make all kind of efforts to delay any hearings for him.

Mr. President, it's been almost a year since you

nominated Thurgood Marshall for the federal bench.

I think it's been much too much delayed.

I'm sure that the Senate with not adjourn without action being

taken by the United States Senate on the Thurgood Marshall

appointment.

When the hearings take place,

they try to denigrate his abilities as a lawyer,

and to say that he's not fit to be a federal judge,

and that process stretches out for several weeks before it

finally comes to a conclusion.

Tender strings

Friday morning, 11:37.

The President's jet lands at the Dallas airport.

Fanfare

Several thousand enthusiastic Texans are on-hand to give the

President and Mrs. Kennedy a warm welcome.

The President's car is now turning onto Elm Street,

and it will be only a matter of minutes before he arrives at the

Trade Mart.

It app... it appears as though something has happened in the

motorcade route!

Something, I repeat, has happened in the motorcade route!

Emotional music

Ladies and gentlemen,

the President of the United States is dead of an assassin's

bullet in Dallas, Texas.

Chief Justice Earl Warren says he is stunned and shocked at

the President's assassination.

It was Chief Justice Earl Warren who swore in Mr. Kennedy as

Chief Executive.

Do solemnly swear...

Do solemnly swear...

That I will faithfully execute...

That I will faithfully execute...

Lyndon Johnson has been sworn in as President

of the United States.

Let this session of Congress be known

as the session which did more for civil rights

than the last 100 sessions combined.

Johnson comes to the recognition that he wants to

make important in-roads in the area of civil rights

for African Americans.

My fellow Americans,

I am about to sign into law

the Civil Rights Act of 1964.

President Johnson was all about legislation.

These towering achievements... the Civil Rights Act of '64,

the Voting Rights Act of '65 depended on his mastery of

Congress, but it also depended on his confidence that the Court

would uphold these acts, would be his partner rather than his

adversary, and would extend the promise of these acts through

other cases.

And that's why Chief Justice Warren was an invaluable partner

to President Johnson.

Smooth jazzy music

You, Lyndon Baines Johnson, do solemnly swear...

I, Lyndon Baines Johnson, do solemnly swear...

LBJ believed he needs to get Fortas on the

Supreme Court.

Fortas had been an extremely close advisor,

in addition to being a Washington super-lawyer of

Johnson's for years.

So what to do?

He has to create a vacancy,

so he persuades Goldberg to become UN ambassador.

I will very shortly this afternoon send to the United

States Senate my nomination of the Honorable Abe Fortas to be

an associate justice of the Supreme Court.

Lyndon Johnson is a very wily figure,

and control is always a matter

that preoccupies him.

He saw the strategic value

of aligning himself with

Thurgood Marshall.

Is there anything you can think of

in your mind or in your disposition to prevent you from

acting fairly, effectively, and efficiently for the

United States government in this position?

Not at all, sir.

I believe that... well, I'm certain that there's no possible

reason that I could have to not adequately represent this

government, which is, after all, my government,

just as it is all of our government.

Well, thank you, Judge Marshall.

Thank you, sir.

Any other questions from the committee?

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You're not a man who's particularly noted for

- formality, as I understand it. - That's right.

Do you think you'll be able to manage in this

claw-hammer coat?

Oh, I've been doing pretty well today.

Pretty well, pretty well.

That was, I think, the first time in my life that I started

to understand my dad's role in history.

Curious tense music

There was a long, hard fight to get Negroes the

right to vote.

You know why?

The "separate but equal" doctrine and the denial of the

vote to the Negro in the South both grew up together,

and went hand-in-glove together.

And that is the reason that they could maintain "separate but

never equal."

Because the Negro was denied the necessary political patronage

to have the necessary leverage

to pry open "separate but equal."

I think President Johnson rendered such

a distinct service because he put on the books

the legislation that should have been there

almost 100 years before.

And if we had, the Supreme Court would never have been obliged to

make so many civil rights decisions from the bare bones of

the Constitution.

There is very little truth in the old refrain that one cannot

legislate equality.

Laws not only provide concrete benefits,

they can even change the hearts of men...

some men, anyhow...

for good or evil.

Certainly, I think that the history I have traced makes it

clear that the hearts of men can be changed.

One of the central challenges that a Supreme Court has to face

is when should it be more aggressive,

and when should it be more restrained in interpreting

the Constitution?

Eventually, this US Supreme Court may rule on the guilt of

Richard and Mildred Loving, and of others who violate state laws

prohibiting the intermarriage of races.

The legal term is "miscegenation."

The law that was at issue in Loving was Virginia's

Racial Integrity Act.

The state passed this law prohibiting the intermarriage of

whites with anyone of colored blood.

There's no legal challenge to the Racial Integrity Act until

the 1950s.

In 1955, when the Court is poised to hear this case

Name versus Name, they realize immediately that this is going

to be a bombshell.

And Tom Clark, who is one of the justices on the Court at the

time, writes in a memo that the Name case

is going to be a ticking time bomb.

And so, the Court dismisses it for procedural reasons,

says they should not have granted certiorari in this case.

And so, the Racial Integrity Act continues to be enforced in

Virginia, and that leads us to the Lovings.

Mr. Loving, the Court of Virginia found you guilty of

violating their laws, and what did they tell you you had to do?

Were you supposed to divorce or...

what?

They said I had to leave the state.

And what happened after that?

What happened? I left.-

And took your wife with you?

That's right.

And that's the way I feel about it again;

if it's necessary, I'll leave again and take her.

I'm not gonna divorce her.

We were married on the second day of June,

and the police came after us the 14th of July.

Mrs. Loving, what has been the worst part about all this

for you?

Well...

I guess the worst thing was...

spending a little time in jail;

that's the worst thing.

But I didn't want to, you know, leave away from around my family

and friends.

Number 395:

Richard Perry Loving versus Virginia.

You have before you today what we consider the most

odious of the segregation laws and the slavery laws.

May a state proscribe a marriage between two

adult consenting individuals because of their race?

The Court unanimously strikes down the

Racial Integrity Act on the ground that there is no purpose

for this law other than white supremacy.

It was a controversial decision,

although not nearly as controversial as Brown was.

'cause by the time they got to Loving in '67,

progress had been made in public attitudes about these issues.

When your children grow up,

how would you want them to marry?

Hell, well, I think I'll leave it up to them to decide it

themselves.

Heartwarming music

Many people have said that the Warren Court was the first time

that the Supreme Court of the United States really did

identify with the underdogs and the outcasts in

American society.

Soft tense music

In the issue of representation in state

legislatures, the High Tribunal declared seats should be

apportioned to reflect the idea of "one man,

one vote."

I think the reinforcement not only of state legislatures but

of representative government in this country

is perhaps the most important issue we have had before

the Supreme Court.

Almighty God,

we acknowledge our dependence upon Thee.

That is the way the prayer was recited until June

25th, 1962, when a six-to-one decision of the United States

Supreme Court declared the practice unconstitutional,

and a new storm broke over the Supreme Court.

This was a wildly-unpopular decision.

Many people regarded the Court as "anti-God."

The Supreme Court's decision holding that schoolchildren may

not voluntarily pray to Almighty God

has shocked the conscience of America.

They put the Negroes in the schools.

Now, they've put God out of the schools.

For the Warren Court to make meaningful its pronouncement

that there was going to be racial equality in the systems

and structures in this country,

it had to make sure that the policing and the court

system were doing the same.

Mr. Kearns?

Mister Chief Justice, the place was searched from

cellar to roof.

Now, the evidence discloses that no search warrant existed!

What the Warren Court held was that evidence obtained in an

unconstitutional search or seizure cannot be admitted into

evidence against the victim of the unconstitutional search.

That has become known as the Exclusionary Rule.

If a man with money can hire a lawyer to represent him,

he can get a better chance in a trial than I would get without

an attorney.

To me, that was just common sense.

The promise of Gideon was that people who are

brought into court would have a fair fight.

There would be equality in terms of the litigants on both sides

of the criminal legal system.

For individuals who were being interrogated,

the procedures of that interrogation were often brutal.

The effect of that was to cause individuals to confess to having

committed crimes, even if they didn't commit them.

The Court said for the first time that people

who are arrested should be advised of their right to

counsel, advised of their right to be silent.

Unequal justice, thus dispensed by the Court,

has trampled and disparaged the valid rights of society,

while magnifying and exalting fictitious and exaggerated

rights of the criminal!

Earl Warren makes a lot of enemies through his decisions,

through the Court he leads.

And so there's a real desire to see him driven from the bench.

Impeach Earl Warren!

Impeach Earl Warren!

They are upset over decisions that Earl Warren has overseen

in terms of the rights of criminals and criminal

defendants, expanding the rights of racial minorities,

of striking down school prayer...

Earl Warren hates white people!

Earl Warren, your hands are red with blood!

Let's give great credit to the Warren Court

for handing down possibly the most consequential positive

decision in the history of the Court;

that's Brown v. Board of Education.

Where the Warren Court comes in for some criticism is that it

didn't seem, in some cases, to be tethered to what the law was.

Instead, there were instances where it reached for what it

seemed the justices thought the law should be.

The Courts are not to be the ones to decide what's best

for society.

I can't help looking out at seeing the built-in reception

committee that I have out on the, uh...

out on the sidewalk.

I thank God every day of my life that we live in a country

where people can express themselves,

and if that is their way of expressing their

views on government...

any part of it, then, God bless 'em, let 'em do it.

The Warren Court allowed for a much broader

understanding of how the Constitution can be applied.

And those who didn't believe in that didn't want another person

coming onto the Court who would follow that same path.

Soft tense music

I have just talked to the Chief Justice and informed him that I

shall send to the Senate this afternoon

the nomination of Mr. Thurgood Marshall, Solicitor General,

to the position of Associate Justice of the Supreme Court.

I believe it's the right thing to do,

the right time to do it,

the right man, and the right place,

and I trust that his nomination will be

promptly considered by the Senate.

Thank you very much.

We chatted... the President and I...

and he said that, "You know something, Thurgood?

I'm gonna put you on the Supreme Court."

And I said, "Well, thank you, sir."

And we talked a little while, and then we went out to the

press and he announced it.

Then, we came back in the room.

I said, "Now, Mr. President...

if it's all right with you, I'd like to call my wife.

It'd be better than for her to hear it on the radio

or something."

And he said, "You mean you haven't called Cynthia?!"

And I said, "No.

How could I? I've been talking to you!"

So we got on the phone and I told her to sit down.

And she said, "Well, I'm standing!"

I said, "Well, sit down!"

She sat down, and he said,.

She said, "Lyndon Johnson!"

He said, "Yeah, it's Lyndon Baines!"

He said, "I just put your husband on the Supreme Court."

She said, "I'm sure glad I'm sitting down."

"I'm sure glad I'm sitting down."

I'm very excited about the appointment of Thurgood Marshall

to the Supreme Court.

I think Negroes all over the country,

as well as many other well-thinking people,

will be very excited about it.

He's a very able man, he's a very well-balanced man,

and, you know, as quietly as it is kept,

every large national group wishes to see someone of its

numbers on the highest court.

The southern senators... they were Democrats in those days...

set out to humiliate this man,

who had been in charge of the entire Supreme Court campaign

to get rid of segregation,

had been Solicitor General,

had been a Federal Appeals Court judge.

I don't wanna make a mistake, I don't want to do anybody an

injustice.

I have, I think, made mistakes in the past and I've said that,

and I'm not going into any further detail about it here at

the moment.

But I can't correct a mistake if I make it in voting for

confirmation.

That's final!

Southern segregationists who realize that they've lost

the battle of Brown versus Board of Education

and who are eager to score points with the folks at home,

they take Marshall to task about the Warren Court's

criminal procedure decisions.

Some of the segregationist senators pelted him

with these nickel-and-dime questions that were not designed

to understand his juris prudence, but instead,

were designed to embarrass and to suggest that a Black person

was unworthy of the dignity of being on

the Supreme Court of the United States.

And then, they asked him things like,

"Well, do you have anything against white people?"

They're creating the idea of confirmation hearings

as spectacle.

Get these pretty girls in the picture.

I want...

I want to be properly framed here.

Or delightedly framed.

I don't know whether it'd be "proper"...

All right, ladies.

Senator, do you think that Judge Marshall is giving

full enough answers so that you can get what Senator Ervin

keeps referring to as his "judicial..."

Well, he is not giving full answers.

He contends that he shouldn't be required to comment

in response to certain questions or line of questioning that has,

uh, been followed, and I asked some of those questions

the first day I interrogated him.

He contends that he shouldn't be required to answer

those questions.

Could you confirm him?

Well, I'll have to make that decision,

will I not?

It was a challenging time for my dad,

but he made it through with 69 votes to confirm him.

Thurgood Marshall, the first Negro to serve on the

United States Supreme Court, puts on his robes with the

assistance of his wife.

President Johnson named Marshall to replace Justice Tom Clark,

who retired.

Justice Marshall, the great-grandson of a slave,

swore to do equal right to the poor and to the rich,

as the Supreme Court opened its 178th term.

Over the course of the 1960s, there is an increasing concern

in the public over crime, over lawlessness.

There's a real worry about the political transformations that

are happening across the country,

and what that means for personal safety.

There was just this general sense of disorder.

There had been this sensation that minority rights had gone

- too far. - Impeach!

When do we want it?!

Now!

It's also about the war,

it's about hippies,

it's about excessive protests...

I am announcing today my candidacy...

for the Presidency of the United States.

I do not run for the presidency merely to oppose any man,

but to propose new policies.

With the war in Vietnam not going well,

it changes Johnson's calculus.

I shall not seek... and I will not accept...

the nomination of my party for another term as your President.

The country's also shaken by a series of major

assassinations.

I have some very sad news for all of you:

Martin Luther King was shot and was killed tonight

in Memphis, Tennessee.

Robert F. Kennedy, who had made a strong run for

the nomination, is assassinated in June.

This is a time of tragedy and loss.

Senator Robert Kennedy is dead.

It was a time when crime rates were high.

It was a time when there'd been urban violence in so many cities

in the United States.

There was a great deal of criticism of the Warren Court

decisions that had been seen as handcuffing law enforcement.

And there are lots of people who just wanna just stop that,

right?

And have things go back to the way they were before.

I pledge to you the wave of crime is not going

to be the wave of the future in America.

Lyndon Johnson and The Great Society liberalism is on its way

out, and maybe Richard Nixon and the silent majority are on

their way in.

On June 13th,

I received a letter from the Chief Justice of the Supreme

Court, which read as follows:

"Dear Mr. President,

pursuant to provisions 28 USC section 371,

I hereby advise you of my intention to retire

as Chief Justice of the United States,

effective at your pleasure.

Respectfully yours, Earl Warren."

Chief Justice Warren resigned with an eye toward allowing

President Johnson to name his successor.

President Johnson attempted to elevate his old friend

Abe Fortas from an associate justice position to the center

seat as the Chief Justice.

All sides recognized that if this is pulled off,

Fortas will maintain the liberalism of the Warren Court

in that same direction for another generation.

Well, now, there's no question whatever of the right of a

President of the United States to fill a vacancy

on the Supreme Court of the United States.

I, however, would question the wisdom of President Johnson

filling the vacancy of the Chief Justice of the United States in

the event that that vacancy does occur

before the, uh...

the new administration is elected.

The President told me he was

considering Fortas for Chief Justice.

I said, "Mr. President,

this appointment's gonna be terribly unpopular.

He's not gonna be confirmed by the Senate,

and he's gonna tear this country up."

The nomination of Abe Fortas to be Chief Justice of the United

States ran into trouble as soon as President Johnson

submitted it.

Today, that nomination is in deep trouble.

The opposition to Fortas is led not just by Republicans,

but by Conservative Democrats as well,

who had been opposed to the liberalism of the Warren Court

and don't wanna see it expanded.

And so they find out certain things about Fortas.

There's this concern about separation of powers

in Fortas' relationship with LBJ,

and there's the knowledge

that LBJ is no longer

the power he once was.

If Richard Nixon is elected, it will be a bitter pill not only

for Lyndon Johnson, but also Earl Warren.

One of the things that Nixon does when he runs in 1968,

he runs as a law-and-order candidate,

but he also runs on the candidate who's going to try to

control the Warren Court... to change the direction of the

federal courts and, in particular,

the Supreme Court.

And tonight, it's time for some honest talk about the problem of

order in the United States.

Let us always respect, as I do, our courts and those who serve

on them.

But let us also recognize that some of our courts and their

decisions have gone too far in weakening the peace forces

against the criminal forces in this country.

The wave of crime is not going to be the wave of the future in

the United States of America!

Nixon saw that the Republican Party may be able to make

in-roads in the South, which had long been regarded as a

Democratic stronghold.

I think the southern strategy was to try to woo the

Thurmond-type Democrats... the Conservative Democrats...

into the Republican Party.

I'd say what the President did with regard to the

Supreme Court was more important in the South in getting him a

good constituency... you know, and a lot of friendships down

this way... than anything else he did.

I think it made some difference to the

Court to have Nixon and Agnew out whipping up the people

against the Supreme Court in order to get into office.

- I think it all hurts the Court. - Yes.

Because, you see, the Court can't fight back.

Mm-hm.

A man in politics can fight back.

Courts just can't fight back.

It isn't the the nature of the position to do it.

October began for President Johnson with a major

setback.

The Senate, in a precedent-setting filibuster,

refused to consider the President's nomination

of Associate Justice Abe Fortas

to be Chief Justice of the United States.

Tense music

That may have been the last time that a President tried to

keep someone on the Court who was a close advisor,

and it really was a cautionary tale for what would follow.

Mr. Fortas, how do you feel about the situation now?

Mister Justice, that was a very fine statement about

persevering.

Wouldn't you make that for our cameras, sir?

For the world?

Just how you feel about persevering?

Thank you, I shall not, uh...

break my rule; I won't say a thing.

I think eventually, the Warren Court ran up against the fact

that it had gone about as far as the public was interested in

having it go.

There were "Impeach Earl Warren" signs on lawns...

not only in the South; in the North as well.

Melancholy music

The public seemed to ascribe... helped along by Richard Nixon's

presidential campaign...

the crime wave that was actually going on to the fact that the

Warren Court had given more procedural rights to criminal

suspects and defendants.

So the election of 1968 was, in some respects,

a referendum on the Warren Court.

You, Richard Milhous Nixon,

do solemnly swear...

I, Richard Milhous Nixon,

do solemnly swear...

That you will faithfully execute the

office...

That I will faithfully execute the

office...

Of President of the United States.

Of President of the United States.

And will, to the best of your ability...

And will, to the best of my ability...

Preserve, protect, and defend...

Preserve, protect, and defend...

The Constitution

of the United States.

The Constitution

of the United States.

So help you God.

So help me God.

dark tense music