Loving v. Virginia

About the Author

As chief justice, Earl Warren assigned to himself the task of writing the Court’s opinion in Loving v. Virginia. In the way that law clerks often do much of the actual drafting, however, Warren’s clerk Benno Schmidt did the heavy lifting in the Loving case, following his boss’s directions as to the reasoning and also some of the content. For example, Warren directed Schmidt to center the opinion on racial discrimination and the right to marry and to definitely cite Judge Bazile’s language about how God had created the separate races and wanted to keep them separate.

Earl Warren was born in Los Angeles, California, in 1891. The son of a railroad-car repairman, the young Warren also worked for a time on railroads. He went to college and law school at the University of California, Berkeley; served briefly in World War I; and then went to work in the office of the district attorney for Alameda County, California. He would work there for eighteen years, thirteen as district attorney himself, gaining extensive experience as a prosecutor; in a 1931 survey he was voted the best district attorney in the nation. Beyond prosecuting defendants, on their behalf he urged that they each, if necessary, have a public defender so as to be fairly represented in criminal court proceedings. In 1938 he was elected attorney general of California, to serve a four-year term. In 1942 he ran as a Republican for the governorship of California and was elected to the first of three four-year terms. He was nominated for the vice presidency in 1948 as Thomas Dewey’s running mate, but the presidency instead went to Harry Truman. Warren helped Dwight Eisenhower win their party’s nomination for the presidency in 1952 and was offered the position of solicitor general in the new administration, but he was then nominated as chief justice of the United States when Chief Justice Fred Vinson died in September 1953. Warren was quickly confirmed and took the helm of the Supreme Court the following month.

In joining the Court, Warren was not new to issues related to the laws of race and marriage. As California’s attorney general back in 1939, he was obligated to interpret the state’s racial restrictions on marriage. And in 1948 he was serving as governor when the Supreme Court of California struck down that state’s law against interracial marriages. Within three years of his appointment as chief justice, two cases regarding the constitutionality of laws against interracial marriage came to the Court, and in each—one from Virginia, one from Alabama—he was in the minority as to whether the Court would hear the case and potentially overturn the law that had given rise to it. As late as 1964, in McLaughlin v. Florida, though ruling in favor of an unmarried interracial couple, the Court had not been prepared to overturn laws against interracial marriage. In Loving in 1967, Warren had the perfect case and the perfect occasion for ruling against such laws everywhere.

While serving as chief justice, Warren reluctantly accepted the chairmanship of a special commission set up by Congress to investigate the 1963 assassination of President John F. Kennedy. The Warren Commission, as it became known, found that Lee Harvey Oswald acted alone in his assassination, a controversial conclusion. In June 1968, one year after the ruling in Loving v. Virginia, Warren informed President Lyndon B. Johnson that he wished to retire as soon as his successor could be confirmed. Johnson chose the associate Supreme Court justice Abe Fortas, whose nomination ran into such trouble toward the end of Johnson’s presidency that he eventually withdrew his name; Warren’s successor, Warren E. Burger, was an appointee of the new president, Richard M. Nixon. Earl Warren was working on his memoirs when he died in 1974.