Influence Without Impeachment: How the Impeach Earl Warren Movement Began, Faltered, But Avoided Irrelevance

Abstract

As visitors filed into the Indianapolis Speedway on Memorial Day in 1965, they were greeted by a massive billboard declaring, “Save Our Republic! Impeach Earl Warren.”¹ Earlier that year, just outside the city of Selma, Alabama, observers and participants in the historic civil rights march that took place there were confronted by a similar billboard calling for the impeachment of the Chief Justice of the United States. Both billboards displayed the name of the group responsible for their conspicuous placement: the John Birch Society.² By 1966, there were hundreds of similar signs placed on streets, roads, and highways all across the nation. While not every billboard, sign, or pamphlet bore the name of the group, it was clear that the campaign to impeach Earl Warren was a project driven by the John Birch Society.³

Despite being one of the most prominent, well-funded campaigns ever to advocate for the impeachment of a Supreme Court justice, there has been little scholarship—legal or otherwise—examining the Impeach Earl Warren movement. Although Warren was never impeached, it is a mistake to treat the movement as nothing more than an interesting yet inconsequential chapter in the history of public criticisms of the Supreme Court. As this article argues, lots of people, including members of Congress and news reporters, misunderstood critical aspects of the Impeach Earl Warren movement, which led many to dismiss it.⁴ However, a clearer understanding of the movement helps better evaluate both its impact and its historical significance. This article examines three lesser known aspects of the Impeach Earl Warren movement. First, although the John Birch Society can most readily be identified with anti-Communism, the group's campaign to impeach Chief Justice Warren originates in the Supreme Court's decision in Brown v. Board of Education. Second, the John Birch Society's leadership and tactics significantly impeded widespread acceptance of the Impeach Earl Warren movement into the mainstream conservative movement, despite a shared opposition to Brown, and may even have been counterproductive. Finally, what the John Birch Society sought to accomplish with its campaign to impeach Warren was more complicated and nuanced than simply removing the Chief Justice from the Court.

That the Impeach Earl Warren movement began as and was driven by an opposition to desegregation in the wake of Brown makes it all the more surprising that the movement failed to gain traction among the mainstream conservative movement. Although there are a few instances of members of Congress defending the John Birch Society,⁵⁵ there is virtually no evidence that members of Congress seriously supported the Impeach Earl Warren movement. Articles of impeachment were never brought, nor is there any indication in the Congressional Record that impeaching Chief Justice Warren was a serious option on the table. Even Senator Strom Thurmond, a segregationist and fellow Brown critic, consciously disavowed impeaching Warren when criticizing the Supreme Court, cabining his criticism of the Court's decision in Engel v. Vitale by saying, “Remember, this is not a call to impeach Earl Warren.”⁵⁶ Why did the John Birch Society's Impeach Earl Warren movement fail to capitalize on conservatives’ shared opposition to Brown? An undeniable culprit is the group's leader, Robert Welch. Welch adopted a strategy that resembled a “fight fire with fire” approach that proved to be too aggressive and too extreme and ultimately compelled leaders of the conservative movement to distance themselves from him. In fact, Welch's bombastic style actually opened him and the John Birch Society up to attacks from other conservatives and anti-Communists.

On June 21, 1968, Chief Justice Warren quietly submitted his resignation to President Lyndon B. Johnson, stating his plan to retire at the end of the current term.⁸⁵ He hoped to travel the world with his wife, and he wanted to leave the bench before he suffered a mental decline. After announcing his retirement, the Chief Justice was widely praised, and his tenure was celebrated by a number of news outlets.⁸⁶ If the goal of the Impeach Earl Warren movement had been to remove him from office, then the Chief Justice's retirement marked the movement as an objective and unequivocal failure. Many members of Congress mocked such a goal, calling it a “silly slogan”⁸⁷ or a “[n]onsensical [i]tch.”⁸⁸ Given that in the entire history of the United States only fourteen federal judges have been impeached, only seven of whom were actually convicted, and in none of those cases did judicial decisions provide the basis for impeachment,⁸⁹ it would not be inaccurate to characterize a movement with the goal of impeaching the Chief Justice as outlandish.

Despite the movement's obvious failure to generate articles of impeachment and regardless of whether it actually bolstered the influence and perception of Chief Justice Warren, this article argues that it is far too simplistic to point to the Chief Justice's voluntary resignation as the decisive metric for the movement's success. In fact, Robert Welch's papers reveal that the John Birch Society's strategy and goals behind the Impeach Earl Warren movement were more subtle and nuanced than impeach-or-bust. Welch identified at least three subsidiary goals of the Impeach Earl Warren movement, none of which involved actually removing the Chief Justice. Thus, viewing the Impeach Earl Warren movement as an impeach-or-bust mission—and thereby overlooking the subordinate goals of the movement—may have prevented observers and historians from accurately evaluating the success of the movement.

On June 21, 1968, Chief Justice Warren submitted his resignation to President Lyndon B. Johnson as he had decided it was time to retire.¹¹⁷ With this voluntary resignation, the apparent purpose of the John Birch Society's impeachment campaign was thwarted. However, Robert Welch and his group were far from finished. In fact, Welch remained chair of the John Birch Society for fifteen more years until 1983, when Welch, age eighty-three, suffered a serious stroke from which he never recovered.¹¹⁸ Yet during this time Welch never again pursued a similar impeachment campaign against any other member of the judiciary. A lack of funding cannot explain the absence of similar impeachment campaigns, as the John Birch Society received a substantial financial infusion from Texas oil magnate Nelson Bunker Hunt in the 1970s.¹¹⁹ Nor can the abandonment of the impeachment strategy be blamed on a general lack of activity, as the John Birch Society remained vocal on a host of other issues after Warren's retirement. Two factors—a reduction in members’ enthusiasm and a shift in attention toward other issues, such as the Vietnam War and the Soviet Union—partially explain why the John Birch Society may have been reluctant to pursue another impeachment campaign against a Supreme Court justice after Warren's departure. However, the fact that this strategy was never adopted again by Welch and his group illustrates the uniqueness of the Impeach Earl Warren movement.

One potential reason why Robert Welch did not attempt to replicate his impeachment strategy was an admitted decline in enthusiasm among John Birch Society members starting in the mid-1960s. According to historian Edward H. Miller, Welch privately admitted that Barry Goldwater's election loss resulted in a tremendous loss of momentum for the John Birch Society.¹²⁰ Miller further argued that in the aftermath of Goldwater's defeat, Welch began to moderate his positions, evolving from a more extreme and aggressive approach to one designed to give the group broader appeal. Specifically, Welch sought to make the John Birch Society “sound more sensible and reasonable” by appealing “largely to a commonsense argument that liberal programs failed.”¹²¹ The aggressive, sometimes outlandish Impeach Earl Warren campaign likely would not have fit into this moderation strategy, which may explain why sustained calls for impeachment were not wielded against subsequent justices. Indeed, Welch's pivot away from extreme tactics may have actually succeeded in making the John Birch Society palatable to a larger audience. While membership of the John Birch Society likely peaked at 30,000 in 1965, it experienced a significant decline for several years thereafter, dropping to half its peak membership.¹²² However, by 1973, the Society had gained back several thousand members to rebound to about 24,000.¹²³ This rebound in membership coincides with Edward Miller's hypothesis of a moderate turn.

The second possible contributor to the abandonment of pursuing impeachment campaigns against other justices is Welch's focus shifting toward other issues not involving Brown or the Supreme Court. This may be in part that Warren's successor as chief justice, Warren Burger, and other new appointments by Richard Nixon moved in a more conservative direction. In any case, Welch concentrated on international affairs. He became increasingly vocal about the Vietnam War, staking out a hawkish position and questioning why the U.S. military could not secure a quick victory against the Communists.¹²⁴ Further, Welch began to adopt aggressive foreign policy views, even advocating for a nuclear first strike against the Soviet Union and openly calling for war with China in 1973.¹²⁵ Clearly, Robert Welch and the John Birch Society were still engaging with and taking stances on topical issues of the time but were less focused on the Supreme Court.

The apparent lack of interest in impeachment campaigns against members of the Court is made all the more interesting by a prominent impeachment drive targeted at another liberal justice: William O. Douglas. On April 15, 1970, then-Congressman Gerald Ford (R-MI) made a lengthy speech outlining Justice Douglas’ conduct, which, according to Ford, warranted his impeachment.¹²⁶ Representative Ford accused Douglas of ethical impropriety and judicial misconduct, including sitting for cases in which a conflict existed, improper practice of law as a judge, and improper income received for his publications in media outlets. Ford's allegations even echoed Welch's rhetoric. He suggested that Douglas’ book, Points of Rebellion, demonstrated the Justice's sympathy for radical revolutionaries who hoped to overthrow the establishment.¹²⁷ Further, Ford criticized Douglas’ ties to the Parvin Foundation, a “mysterious entity” that had connections to Communists in Latin America, including Fidel Castro.¹²⁸ Ford's rhetoric, though less explicit, seems entirely consistent with Welch's crusades against allegedly Communist sympathizing government officials. Despite this characteristic line of attack, however, Welch and the John Birch Society never seemed to adopt Congressman Ford's calls for the impeachment of Justice Douglas. One potential reason that Ford's impeachment push may not have attracted the enthusiasm of the John Birch Society is Welch's distaste for President Richard Nixon. In fact, Welch was fiercely critical of Nixon, arguing that “[e]very important thing Nixon has done leads toward totalitarian government” and that “Nixon's life ambition is to be the first ruler of the world.”¹²⁹ This enmity toward Nixon would prevent the group from latching onto an effort spearheaded by one of Nixon's staunchest allies in Gerald Ford. Further, as Professor Joshua Kastenberg has argued, Ford's impeachment campaign against Justice Douglas may well have been an orchestrated ploy to detract attention away from Nixon's activity in Vietnam.¹³⁰ Regardless, for whatever reason, Ford's impeachment crusade against Justice Douglas failed to garner significant support from the John Birch Society. Given the similarities between Ford and Welch's arguments, this lack of support for Douglas’ impeachment is surprising, and it shows how unique the Impeach Earl Warren movement was.

The Impeach Earl Warren movement was among the most visible sustained attacks on the Supreme Court in American history. The movement was primarily driven by the John Birch Society and its eclectic leader, Robert Welch. Given that Chief Justice Warren voluntarily resigned, it is hard to understand what concrete impacts, if any, the Impeach Earl Warren movement achieved. However, a closer look at the movement reveals that its motivations, goals, and success (or lack thereof) is more complicated than what a surface-level analysis may indicate. Despite being championed by a group dedicated to fighting Communism, the movement was actually a response to the Supreme Court's school desegregation decision in Brown. Further, the aggressive approach from the John Birch Society and Welch may have backfired and lent legitimacy to the Warren Court. Finally, the Impeach Earl Warren movement had nuanced political goals that did not depend on removing Chief Justice Warren from the Court. Considering these subordinate goals not only helps illuminate an interesting chapter in the history of the Supreme Court, but it also shows that the Impeach Earl Warren movement should not be disregarded as an inconsequential and irrelevant episode in history.