Justice for All (81 page)

 

The absence of a defense lawyer made any trial an unfair trial, Fortas argued; the Sixth Amendment required a fair trial in federal courts; the Fourteenth Amendment required that states do the same. Against that truism stood the proposition that federalism required the Court to accede to the rights of states to structure their criminal justice systems, to hold its tongue in the face of what were admittedly unfair trials. There was “no possible escape hatch,” he insisted. For the Court, then, the only options were to allow unfair trials or to curb federalism. That was the direct conflict that Warren had hoped to create when he tapped Fortas to argue Gideon's case.

Close Court watchers suspected that
Betts
's days were numbered even before Fortas came to take it head-on. A year earlier, Warren had signaled his willingness to overrule
Betts v. Brady,
joining with Douglas and Black in finding: “Twenty years' experience in the state and federal courts with the
Betts v. Brady
rule has demonstrated its basic failure as a constitutional guide. Indeed, it has served not to guide but to confuse the courts as to when a person prosecuted by a State for crime is entitled to a lawyer.”
⁷⁰
The majority in that case,
Carnley v. Cochran,
overturned the conviction of a man who had molested his thirteen-year-old daughter, but the justices, fearful of setting a major precedent on the back of such a depraved defendant, instead concluded that the special circumstances of that trial—the defendant was illiterate—required that he be given a lawyer under that provision of
Betts
. That allowed the justices to dispose of
Carnley
without the reaction that setting a major constitutional principle in order to free a child rapist would surely have provoked.
⁷¹

Clarence Gideon offered no such drawbacks. His relatively innocuous crime gave the Court the chance to make important law with a minimum of controversy. What's more, the votes were there: Brennan and Warren had shown their willingness to overturn
Betts.
Black and Douglas had dissented from
Betts
when it was first decided; their views were clear. With the addition of Goldberg, there was little doubt of a fifth liberal vote. Inside the Court, the shift was even more apparent, as the justices already had voted, in
Douglas v. California,
to require California to provide indigent defendants with a lawyer for their appeal.
⁷²
There was no way to require a lawyer for appeal but not for trial, so
Gideon
was a foregone conclusion, though that was invisible outside the Court, as
Douglas
had been held over and not been announced when the justices took up
Gideon
.
⁷³
Thus, the outcome of his case was preordained before Gideon wrote to the Court from his cell and before Fortas made his historic argument on Gideon's behalf.

If that undermines
Gideon
's romance—of the poor defendant scratching out his appeal with pencil and paper, reaching out to the nation's highest tribunal, and finding a fair and receptive audience willing to do justice—it does nothing to detract from
Gideon
's importance. In 1963, five states—Florida, Alabama, Mississippi, and North and South Carolina—routinely forced indigent defendants to represent themselves in criminal trials. It fell to Hugo Black to wipe out that blot. Black argued not that circumstances had changed since
Betts
was decided or that new principles had been developed or revealed. Instead, he insisted, as he had in 1942, that
Betts
was wrong then and wrong still. It was, as twenty-two states had argued in their brief on Gideon's behalf, “an anachronism when handed down.”
⁷⁴
The right to a lawyer was so basic to fairness, Black wrote, that states could not deny it any more than the federal government could.

With
Gideon,
Black finally prevailed in
Betts
. And he did so for a unanimous Court. Only Harlan was left to grumble at the abrupt overturning of
Betts
. He agreed that it should go, but complained that it was “entitled to a more respectful burial than has been accorded.”
⁷⁵
Harlan used his concurrence also to stress that the Court was not, with
Gideon,
adopting Black's long-standing view that the Fourteenth Amendment incorporated wholesale the Bill of Rights and made those requirements binding on the states. Still,
Gideon
was now the law, so held by a unanimous Warren Court. With its announcement, on March 18, 1963, another obstacle to the equality of Americans and the fairness of their nation fell.

Clarence Gideon, represented this time by a lawyer, was tried again and acquitted. His story became the basis for Anthony Lewis's gripping
Gideon's Trumpet,
and
Gideon
helped launch the Warren Court of lore. Like
Baker
and
Engel
—the redistricting and religion cases—it attracted the support of the Kennedy administration, where Bobby Kennedy enthusiastically endorsed it. More important, its appeal to such a fundamental American understanding of fairness blunted the criticism that resulted from the Court's other landmark rulings of the early 1960s—and of those still to come. That conclusion was perfectly Warren, and though it was Black who put the Court's rule into words, it was Warren who steered the case to that outcome—from his appointment of Abe Fortas to argue it to the assignment of the opinion to Black. For Warren,
Gideon
was right because it was fair. Clarence Gideon's victory was Warren's as well.

That was the spring of 1963. Kennedy had been in office for two years, and much of the nation was charmed by its glamorous President and First Lady, awash in a happy and productive period. Kennedy was laying early plans for his reelection, a campaign made easier by the self-destruction of Richard Nixon. But the stir-rings of liberty and patriotism that so moved so many supporters of the president had not reached all Americans. Indeed, some of the progress toward a more equal America—the progress initiated by the Warren Court, pleaded for by sit-in protesters, and cautiously nurtured by the Kennedy administration—had created a thirst for more and a frustration at the slow pace of change. And thus, as 1963 unfolded, the demands for faster progress toward the elimination of state-supported racism quickened.

This time, the battle would occur at the time and place of Martin Luther King's choosing. He and his closest aides picked Birmingham, Alabama, and they spent months honing their program for a confrontation with that city's notorious Bull Connor. The White House was not consulted, though FBI agents had picked up rumblings in their wiretaps.
⁷⁶
Two days before the scheduled kickoff of the campaign, which a King adviser had code-named “Project C” (C standing for “Confrontation”), an Alabama judge issued an injunction barring 133 people, starting with King, from waging any sort of public protest. King elected to defy the order, and took to the streets as promised, on Good Friday. He was tossed inside a paddy wagon and taken to jail, where he was placed in solitary confinement. While locked away, King wrote his “Letter from the Birmingham Jail.”
⁷⁷

While King's removal from the streets temporarily quieted Birmingham, on May 2, the two sides confronted each other again; this time, King was accompanied by 958 children, waves of them marching toward City Hall. By nightfall, 600 Birmingham boys and girls were in jail. “I have been inspired and moved today,” King announced that night to a nervous crowd of parents. The following morning, the march went on again, so many children flooding the streets of segregated Birmingham that Connor directed Fire Captain G. V. Evans to spray the youngsters down. Much of the crowd fell back, but a few held their ground. Firemen then ratcheted up the pressure in the hoses, turning to special nozzles so strong that they could knock bricks from buildings. When they opened those hoses up on the children, it scattered them like leaves tumbling across pavement. Screaming and in disarray, some tried to throw bricks or rocks, others fell back and formed their peaceful protest lines once more. Connor then unleashed the dogs. Turning on bystanders as well as protesters, officers allowed the dogs to maul Negro children. One image told the story of Birmingham: In it, a white police officer in dark sunglasses held the leash of his German shepherd as the dog sank its teeth into the abdomen of a fifteen-year-old black boy. The photograph, Taylor Branch memorably records, “struck like lightning in the American mind.”
⁷⁸

Americans winced at the images of shattered, bitten children. Volunteers flooded Birmingham. Where hundreds had at first risked liberty and safety, now thousands rose to take their place. Birmingham leaders, in the midst of a contested election that divided their leadership, struggled to shed their new image as the center of American racism while still resisting direct talks with the Negro leadership that they held responsible for the violence. The White House desperately attempted to broker a truce. King and the Kennedys warily circled each other, talking and threatening through intermediaries. Finally, after weeks of protesting and often dispiriting negotiations, city and civil rights leaders struck a tentative deal on May 10. The protests would stop, and in return, Birmingham would desegregate lunch counters, restrooms, dressing rooms and drinking fountains; Negroes would be hired to fill city jobs, and the city's white leaders would help secure the release of those then in jail.
⁷⁹
News of the deal enraged the local Ku Klux Klan, which expressed itself by bombing the home of King's brother and the hotel that King had only shortly before departed. Furious, Birmingham's Negroes wandered into the streets, and some fought with police, who then went on a rampage of retaliation. Andrew Young, King's reliable lieutenant, rushed back to Birmingham from Atlanta to calm the black community even as King's destroyed hotel room, Room 30, smoldered.
⁸⁰

In Washington, Kennedy edged toward the dispatch of federal troops, and announced that he would not permit the deal in Birmingham to be unraveled by violence. Slowly, gingerly, calm returned to Birmingham at the point of a gun. Jackie Robinson came to visit and was overcome by emotion, telling a church audience that his own children had asked to come with him and be arrested, too. King closed the campaign with exhortations to optimism and pleas for forgiveness. Project C, launched on Good Friday of 1963 and carried to victory on the backs of more than two thousand children, celebrated its triumph on Mother's Day.

Warren was an observer to the escalating civil rights struggles of 1963, standing in the wings as Kennedy and King played the central parts. But he continued to contribute from his position, as the Court found ways to reinforce the efforts of the civil rights advocates in the field. From even before the
Brown
decision in 1954, many of the South's efforts to contain civil rights activity focused on trying to demonize and criminalize the NAACP. Resistance varied state-by-state, as Southern leaders experimented with ways of eliminating the organization or at least tying it down in litigation. Virginia was among the states that pioneered attacks on the NAACP, and in 1956, it enacted a statute to redefine and expand the definitions of legal malpractice as they related to soliciting clients. When the NAACP's case challenging that statute reached the Supreme Court, it posed special complications: Virginia had a right, as all conceded, to regulate the legal profession in order to ensure high standards for it, and the law at issue was neutrally written—that is, it did not name the NAACP specifically, though there was no real doubt about who its intended target was. But allowing the statute to stand would have real consequences, about which none were deluded. To allow Virginia to outlaw the NAACP practices was, in effect, to concede defeat on desegregation litigation arising from that state, as no other organization was positioned to take over the effort should the NAACP be driven out.

The case wound its way through the Virginia courts, where the statute was upheld by that state's Supreme Court. The United States Supreme Court agreed to hear it, and lawyers for the two sides made their first appearances in November 1961, with Robert Carter making yet another trip to the Court to argue on behalf of the NAACP. When the justices first weighed in on the matter, they sided with Virginia, over the objections of Warren, Douglas, Black, and Brennan. Frankfurter wrote for the narrow majority, while Black drafted a dissent.
⁸¹
Had the case been handed down in the summer of 1962, as the Court was scheduled to do, it would have represented a sobering setback for the NAACP, whose efforts had consistently been defended and appreciated by the Warren Court. Fate intervened, however, with the breakdown of Whittaker and then with Frankfurter's stroke. That took two votes away from the majority, and the justices agreed to hold the matter over to the following year.

When the Court reconvened the following fall, Brennan immediately went to work on the new justices. He sent each a memo urging them to consider the NAACP's long and difficult work on behalf of school desegregation in Virginia and he suggested that the Court could find for the NAACP with an opinion that defended its rights of speech and association without having to find that the Virginia legislature was intentionally discriminating against it.
⁸²
At the conference, both new justices agreed—Goldberg enthusiastically, White with less vigor—tipping the balance now solidly in favor of the NAACP where just six months earlier it had been on the verge of going the other way. Warren, probably with an eye on the effectiveness of Brennan's memo, asked him to write for the new majority. Brennan did so with some difficulty, but he managed to hold a fragile coalition together and keep the NAACP in business. “The NAACP is not a conventional political party; but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society,” the Court ruled. “For such a group, association for litigation may be the most effective form of political association.”
⁸³
That ruling was handed down one day before the fabled Fortas argument in
Gideon
.