Gideon's Trumpet (28 page)

Supreme Court justices are enabled to search for principle, free from the political passions of the moment, by one of the wise borrowings in our Constitution from English practice. They “shall hold their Offices,” the Constitution says, “during good Behaviour”—which as a practical matter means as long as they can and wish to, since impeachment is so remote a prospect. The freedom to decide as one’s conscience and intellect demand, without fear of political retribution, is a rare luxury for any office-holder, and it certainly helps to explain what happens to men when they don the robes of a Supreme Court justice. The southern Senator required to go through the motions of defending segregation—and many in the Senate today are only going through the motions—can shed that dispiriting burden if he goes on the bench. The state judge who has to look to political bosses for re-election—as many do—cuts that tie upon appointment to the Supreme Court. The independence given to the justices enables them to do things that others know are right but have never had the courage or the determination to do by themselves.

Shortly before the Gideon case was decided, Abe Fortas was having lunch in the Supreme Court cafeteria with an eminent lawyer from Pennsylvania, the largest state without a requirement for appointment of counsel in all felony cases. “I’ve told the lawyers of my state and the officials again and again that they should make the appointment of counsel compulsory,” the Pennsylvania lawyer said. “They all know it in their hearts. But regardless of their personal or professional convictions, they won’t move until this great institution tells them to.”

Just as life tenure protects the justices from political pressures,
so are they cut loose from regional influences. No man can escape, or should, his background and experience, but a Supreme Court justice is more likely than most to outgrow parochial prejudices. And it is increasingly important to have a national voice speaking out on questions such as that posed by the Gideon case. We live under a federal system, with the states retaining a large degree of independence, but we have become a nation. Most of us think of ourselves first as Americans, not as, say, Floridians. And we are a nation with a world responsibility.

Justice Schaefer of Illinois has advanced “the relation of the United States to the rest of the world” today as one argument for national standards of criminal procedure. “The quality of a nation’s civilization,” he wrote, “can be largely measured by the methods it uses in the enforcement of its criminal law. That measurement is … taken from day to day by the peoples of the world, and to them the criminal procedure sanctioned by any of our states is the procedure sanctioned by the United States.”

Apart from what other countries may think, more and more Americans have a national conscience that is troubled by unfairness in law enforcement in any state—or by any state’s racial discrimination. It is no longer possible for Mississippi to go her own way without disturbing not only the image the United States projects to the outside world, but the one it projects to itself. And the Supreme Court is in a strategic position to give voice to national ideals.

Even the Congress of the United States is deeply affected by regional allegiances. Of all this country’s governmental instruments, only the Presidency and the Supreme Court are wholly free of sectional ties, and only the Court is given the function of regularly measuring state and local policy against the national standards of the Constitution. It is no
exaggeration to say, as Holmes did, that the United States might not survive as a nation without the unifying power of the Supreme Court. Nor is the job finished. At almost every term of the Supreme Court some community claims the right to put a restriction on interstate commerce, or outlaw some book or movie accepted by the rest of the country. It is the Court’s duty to preserve a union, one without tariff walls or ideological walls between the states.

Professor Goodhart has said that the Supreme Court confronts problems “more important and more difficult than any other court in the history of the world has had to face.” A justice brings to the task only his character, his intellect, his education, his experience, his human understanding, his imagination. There are really no mysteries; no one teaches a course on how to be a Supreme Court justice. The Court is not a place for experts or for specialists. Indeed, it stands for the proposition that it is wise to have the final decisions made by generalists, not specialists. Rather than let tax experts have the last word on tax law, and criminal law specialists the last in their field—with all the ferocious quibbles that experts can produce—we deliberately arrange for an infusion of common sense. Perhaps that is the ultimate curiosity of the Supreme Court: That it must have a sense of our society’s common understandings, that it cannot cut itself off from the people.

Discussing the due-process clause of the Fourteenth Amendment, Justice Frankfurter wrote once that it was the Supreme Court’s duty to ascertain “the conscience of society.” That could not properly be a suggestion that the Court find some minimum level of acceptability by an intuitive public opinion poll. The Court’s function is not to reflect mass ideas but to lead enlightened opinion, to educate. At its best the Court is a great teacher, illuminating issues and
then drawing support for further steps from the more sensitive public attitudes it has helped to create. When the School Segregation case was decided in 1954, the largest part of public opinion in this country was at best inert on the racial question; the man in the street did not feel its ethical imperative. It was only when the ugly face of racism showed itself at Little Rock and elsewhere that Americans saw the moral issue in racial segregation—and began to give the Court’s decision the support it needed to become effective.

Yet when it made the choice in 1954, the Court surely chose correctly. In the long run Americans could not have accepted the principle that separation of human beings on account of the color of their skins satisfied the demand for “equal protection of the laws.” After Adolf Hitler the world knew that racial separation was an expression not of equality but of hatred.

The relationship between the Court and society is just as significant in the area of the Gideon case, criminal law. In its steady march toward higher standards of fairness in criminal procedure, the Court was not reflecting popular ideas; the public was probably uninformed and unconcerned about the issues in particular cases. But taken as a whole, the movement was followed and supported by enlightened opinion. Between
Powell v. Alabama
in 1932 and
Gideon v. Wainwright
in 1963 there surely developed an overwhelming acceptance of the proposition that “states’ rights” should not include the right to ignore civilized decencies in the enforcement of the criminal law. Court and country were both part of a larger phenomenon. The experiences of totalitarian brutality through which the world had passed since 1932 had made the citizens of many lands more sensitive to the danger of unrestrained official authority.
Justice Black took note of this in his opinion in
Chambers v. Florida
in 1940. “Today as in ages past,” he said, “we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny.”

Professor Allen, looking back at the course of the Supreme Court’s criminal law decisions, wrote: “Perhaps it may be worth observing that the decision of the Powell case and the rise of Hitler to power in Germany occurred within the period of a single year. It would, of course, be facile and specious to suggest that these two events are related by any direct casual connection. Yet … in some larger sense the two occurrences may be located in the same current of history. Both events are encompassed in the crisis of individual liberty which has confronted the western world since the First World War. The Court has been sensitive to the crisis and has responded emphatically to it. It is not only in the state criminal cases that constitutional doctrine has expanded at a remarkable rate. Virtually all of the law of free speech, assembly and press, for example, has been articulated in the last forty years. When viewed against a background of such momentous events a little criminal case involving the misbehavior of local police officers may take on a peculiar significance.”

A century ago, De Tocqueville said of the justices of the Supreme Court: “Their power is enormous, but it is the power of public opinion.” What is given to the justices is the opportunity not to command but to persuade. The eloquence of a Brandeis—the ability to perceive great moral truths and to articulate them in a way that excites the imagination of the citizen—is as important to the Supreme Court as the power of sword or purse to the other branches of government. When the Court in history has lost touch
with the true current of American life, it has only damaged itself. A Court that thought it knew best said in the Dred Scott case that Congress had no constitutional power to forbid slavery in new territories. Another said that a state could not limit bakers’ work to ten hours a day. Those decisions turned to dust because they sought to enshrine as eternal principles the prejudices and limited economic understandings of mere men. That is the risk the Supreme Court takes—the risk of failure.

When
Betts v. Brady
was decided in 1942, the majority of the Court thought it was expressing a meaningful principle. But trial and error—the case-by-case process of the courts—showed that the
Betts
rule did not work, that it expressed no principle. When the Court in
Gideon
laid down the universal requirement of counsel, it was only articulating a principle that most of those with an opinion—lawyers, judges, state officials themselves—had already recognized.

Gideon v. Wainwright
was a triumph for Hugo Black, but in a way the case suggests that there was not always so deep a gulf between his view of the law and Felix Frankfurter’s as the occasional ferocity of their well-known debate suggested. Although he speaks of absolutes, Justice Black has actually dealt with the Constitution as a living document, changing his views as conditions have changed. One of his able disciples, Professor Charles A. Reich of the Yale Law School, a former law clerk to him, has written that Justice Black’s opinions during a quarter-century on the Court reflect an unstated assumption that the Constitution’s protections of individual liberty must grow just as the powers of government have been allowed to expand to meet new problems. The issue of the right to counsel in fact does not fit Justice Black’s public position that history provides satisfactory guides to the meaning of the Constitution. The
Sixth Amendment was designed by its framers to assure the right to be represented by counsel to those who could afford to retain their own. But that history rightly presented no obstacle to Justice Black when he wrote
Johnson v. Zerbst
for the Court in 1938, holding that the Sixth Amendment required the Federal Government to provide in its courts a lawyer for any defendant who was too poor to hire one himself and who did not waive the right. And in
Gideon
Justice Black’s opinion rested not on absolutes but on the single proposition that the right to counsel provided by the Sixth Amendment was fundamental and was therefore embraced in the Fourteenth Amendment.

Justice Frankfurter was just as dedicated to fair criminal procedure as Justice Black. It was Justice Frankfurter who wrote, in a Federal criminal case, “The history of liberty is largely the history of the observance of procedural safeguards.” His deep belief in federalism made him draw back from imposing identical requirements on the states, but even there his difference with Justice Black—for all the talk—may often have come down to a question of timing. In 1942, Justice Frankfurter might have said, the country was not ready for a universal requirement of counsel in serious criminal cases; the bar was not prepared for such a burden; the states would have resisted, and the decision would have been widely ignored. But that would not have ended the matter for Justice Frankfurter. “It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right,” he once wrote. “Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or essentials of fundamental rights.”

Shortly after the Gideon case was decided, Justice Black
visited Justice Frankfurter at home and told his ailing colleague about the conference at which the case had been discussed. He had told the other members of the Court, Justice Black said, that if Felix had been there he would have voted—faithful to his own view of due process—to reverse the conviction of Clarence Earl Gideon and overrule
Betts v. Brady
.

Justice Frankfurter said: “Of course I would.”

R
esolution of the great constitutional question in
Gideon v. Wainwright
did not decide the fate of Clarence Earl Gideon. He was now entitled to a new trial, with a lawyer. Was he guilty of breaking into the Bay Harbor Poolroom? The verdict would not set any legal precedents, but there is significance in the human beings who make constitutional-law cases as well as in the law. And in this case there was the interesting question whether the legal assistance for which Gideon had fought so hard would make any difference to him.