All language subtitles for Deadlocked.How.America.Shaped.the.Supreme.Court.S01E01.1080p.WEB.h264-EDITH

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?

Sober choral music

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