Fight of the Century

by Michael Chabon

  Privacy is the foundation of Griswold. But while Griswold is a consequential ruling, to me it has always had a sepia tinge about it, an antiquated, peculiar, butter-churn quality. People were having sex and using contraception, in novels and in real life, and yet here, still, was this old, anachronistic law, which needed to be changed.

  Estelle Griswold had traveled abroad with her State Department husband, and after seeing the conditions under which people in other countries lived, she had become passionate about various human rights concerns. By 1954 she began work as the executive director of the Planned Parenthood League of Connecticut and became involved in the mission to change Connecticut’s laws. Her partner in the mission, Dr. C. Lee Buxton, knew well the urgency of access to contraception. In addition to his patients who were sexually active and didn’t want to bear children, he had treated many women who would have died if they conceived, and others who had experienced multiple miscarriages and would do so again if they became pregnant.

  Buxton’s lawyers had filed five cases for him along with a group of his anonymous patients in an attempt to challenge the law, but all were unsuccessful. Though the Supreme Court agreed to hear his appeal in one of the cases, it was ultimately dismissed, even though one of the dissenting opinions argued that the issue was “ripe,” which meant ready for litigation.

  The word ripe jumped out at me. A question of ripeness or unripeness seems such fitting imagery in this story of women and their wombs. Buxton joined up with Griswold, and together they announced the opening of a birth control clinic in 1961. Nine days later they were arrested, as they knew they would be, and when the case went before the Connecticut Supreme Court, the judges ruled against them. It was only on appeal in 1965 that Griswold and Buxton, led by their lawyer, Catherine Roraback, were victorious; the Supreme Court declared the original anti-contraception law unconstitutional on the grounds of the right to marital privacy. It would be seven more years before the law applied to all couples, not just married ones.

  I am drawn to the word privacy, which seems to suggest that corner of our lives that no one can see except the person or people we want to see it. That’s a novelist’s corner, of course, and he or she has the ability to illuminate and analyze all kinds of private material. Mary McCarthy and Philip Roth looked at the private bedroom moments of men and women in their fiction. While there is also an oppressiveness in these scenes, with the men pressuring the women to get themselves birth control so the men wouldn’t have to pull out or wear a condom, that is perhaps for another essay. What these scenes mostly illustrate in a Griswold context is how sex in that era was folded deeply into people’s lives, as ordinary as anything, and that it was necessary for the law to catch up with reality.

  The feminist writer Katha Pollitt, who happens to have been a recipient of the Catherine Roraback Award, “given to individuals and organizations that have demonstrated leadership, courage and activism in the struggle to protect privacy rights, the legal right to obtain an abortion, and access to reproductive health for all,” reflected on the importance of Griswold. “When society gets ahead of the law,” she said to me, “eventually the law comes around. The law is very important. With abortion, in the fifties they started to crack down on practitioners; before that they usually let it go unless someone died. The reason it’s so important to have the law on your side is that it can protect you from backlash such as we are experiencing now.”

  Most recently, Griswold made an appearance during the Kavanaugh hearings. Unlike previous judges during their confirmation hearings, Kavanaugh would not say he agreed with Griswold and would not say the Constitution offered protection for people’s rights to make decisions about their own family planning. If this courtroom scene were a scene in a novel, it would be effectively chilling, and the smug, rageful character being questioned would most likely reappear later in the book, having wielded his power in a terrible way. But it isn’t a novel; it is our lives, our bodies, our privacy that need protection. The time is ripe.

  MIRANDA V. ARIZONA (1966) (amicus)

  Miranda v. Arizona was the culmination of a series of Supreme Court cases going back over thirty years, pitting the Constitution’s promise of the protection against self-incrimination against a favorite tool of law enforcement: the confession. In Brown v. Mississippi (1936), the Court held that after being beaten, whipped, and strung up by his neck from a tree in a mock lynching, the defendant’s “confession” could not stand. From there, the Court continued to address the problem of coercion, honing in on a definition of what constituted a freely given confession: suspects could not be held for long periods of time without food, police could not lie about the possibility of leniency, and so on. Finally, with Miranda, the Warren Court declared that police custody was in and of itself inherently coercive, and that the Constitution not only guaranteed the right to refrain from self-incrimination, but demanded that individuals be informed of that right and given the opportunity to exercise it. Few other cases in jurisprudential history have had the impact of Miranda on cultural understanding or have contained such a specific interpretation of the Bill of Rights as the now ubiquitous phrase, “You have the right to remain silent.”

  Representing Ernesto Arturo Miranda, the ACLU shepherded his case from Phoenix, Arizona, to the nation’s highest court, arguing that all individuals were not only entitled to the protections of the Fifth and Sixth Amendments, but entitled to be made aware of those protections.

  Ernesto’s Prayer

  HECTOR TOBAR

  To those who met him during his long odyssey through the criminal justice system, Ernesto Miranda was a pitiful, small-time criminal from central casting. Tattooed, lecherous, a hard drinker, and a drifter, he’d been in trouble since childhood. His first felony conviction came in the eighth grade, for car theft. The next year, he was arrested for burglary, then attempted rape. In the army, he got thrown in the stockade on a Peeping Tom charge.

  History does not tell us much about the demons that persecuted him. More than likely, his parents were poor and had some experience in farmwork. He was born in Mesa, Arizona, in 1941, when Mesa was a rural town surrounded by citrus groves and cotton fields past the edge of preboom Phoenix. We know his mother died when he was six. In the publicly available photographs of him (all mug shots), “Ernie,” or “Ernest” can look handsome and wholesome, or menacing and thuggish. Many of the lawyers and police officers who met him believed he suffered from a mental illness.

  His name is now a verb. To “Mirandize,” as defined in most American dictionaries, is to apprise criminal suspects of their rights against self-incrimination and their right to have a lawyer present during any interrogation. Thanks to Ernesto Miranda (and also thanks to the overzealous Phoenix Police Department and a host of civil rights attorneys), the protections of the Fifth Amendment became a civic poem in free verse, a recitation of constitutional rights embraced by American popular culture.

  “You have a right to remain silent. Anything you say can be held against you in a court of law…”

  On television and in movies, the Miranda moment is a short, celebratory speech, usually intoned in the final act, when a police officer or detective, having ferreted out and hounded the bad guy for most of the plot, finally catches him. With righteous anger in his voice, the good-guy cop delivers a pithy reminder of the protections afforded in the Bill of Rights.

  “You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.”

  * * *

  The series of events that led to Ernesto Miranda’s arrest and fame began when an eighteen-year-old woman set off for home after her night job at a movie theater in central Phoenix. It was 1963, and Phoenix in many ways still resembled a segregated southern town. Cul-de-sacs and freeways did not yet fill the Salt River Valley, and irrigated cropland still surrounded the city, which had a large, marginalized population of Mexican Americans and Mexican immigrants.

  A man kidnapped and raped the young woman. (Her
name was never released to the public.) When she reported the crime to police, she could give only a vague description of the car her abductor was driving. She thought it might be a Chevrolet, but she wasn’t sure. About a week later, her cousin spotted a Packard circling suspiciously in the same neighborhood and jotted down a partial license plate. The police searched records and found a Packard belonging to a woman who lived with Miranda, an ex-con with an extensive criminal background, including prior sex crimes.

  The police knocked on Miranda’s door and suggested he come into the station to answer questions; they said they wanted to spare him the embarrassment of interrogating him in front of his common-law wife (and the mother of his child). Not long after he arrived at the station, the officers asked him to stand in a police station lineup. Two witnesses said he resembled the perpetrator of both the rape and a second crime, a robbery. But they couldn’t be sure.

  The detectives lied to Miranda; they told him he had “flunked” the lineup and took him to an interrogation room. According to Miranda, the detectives told him some of the charges would be dropped if he confessed; otherwise, they would “throw the book at him.” The detectives also promised to get him help for his mental health issues, Miranda said later. He agreed to write out his confession. The police had not informed him of his right to remain silent or to have an attorney present at his questioning.

  Besides the confession, prosecutors presented no other evidence of Miranda’s guilt at his rape trial. He was convicted.

  While Miranda’s appeals were working their way through the Arizona courts, the US Supreme Court delivered two landmark rulings on the rights of people accused of crimes: Gideon v. Wainwright (1963), which established that the government must provide lawyers to indigent defendants, and Escobedo v. Illinois (1964), which held that suspects have a right to representation during police interrogation.

  In Escobedo the court found that the right to have an attorney at trial was, in effect, rendered meaningless when police tricked suspects into providing the evidence that would lead a jury to convict them. Robert J. Corcoran of the Phoenix office of the American Civil Liberties Union saw in Miranda’s case an opportunity for the Supreme Court to broaden the rights established in Escobedo. He reached out to John J. Flynn, a criminal defense attorney widely regarded to be Arizona’s best trial lawyer. Flynn represented Miranda pro bono and sought out the assistance of his firm’s top appellate lawyer, John P. Frank.

  More than one hundred defendants submitted similar appeals to the High Court. Of those, the justices chose four to hear, including Miranda’s. Flynn made oral arguments before the Supreme Court in Miranda v. Arizona on February 28, 1966. He characterized Miranda as a man poorly equipped to understand his rights when the police arrested him. At that moment, “under the facts and circumstances in Miranda of a man of limited education, of a man who certainly is mentally abnormal, [and] who is certainly an indigent… the police, at the very least, had an obligation to extend to this man not only his clear Fifth Amendment right, but to accord to him the right of counsel.”

  On June 13, the court ruled 5–4 in Miranda’s favor. Writing for the majority, Chief Justice Earl Warren said that the Fifth Amendment’s protections against self-incrimination extended beyond the courtroom, reaching into police stations and to street-corner traffic stops. His ruling contained language that would later be adopted into the Miranda warning. A suspect, Warren wrote, “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

  That summer, at the direction of the attorney general of California, California’s assistant attorney general, Doris H. Maier, and Nevada County’s district attorney, Harold Berliner, drafted a version of the warning for police to use in their state. Berliner also happened to be a printer; he produced hundreds of thousands of vinyl cards of the new warning and sold them to law enforcement agencies across the country.

  One of those cards ended up in the hands of Jack Webb, the television producer, as he was writing the first episodes of the relaunch of the series Dragnet, a police procedural based on real-life Los Angeles Police Department cases. In the name of verisimilitude, Webb had his hero, the fictional Sergeant Joe Friday, recite the Miranda warning twenty-five times during Dragnet’s inaugural season. In the first episode, broadcast on January 12, 1967, Friday and his partner roll out to a vacant lot in East Hollywood and find a young man under the effect of LSD. “Alright son, you’re under arrest,” Friday says. “It’s our duty to inform you of your Constitutional rights. You have the right to remain silent…”

  Miranda’s conviction was overturned, but he remained behind bars because Maricopa County immediately refiled the charges against him. In February 1967, his second trial began, this time without his confession entered as evidence. But his common-law wife had turned against him while he was in prison; among other things, the couple had fought a bitter custody battle. She told police that Miranda had confessed the rape to her during a jailhouse visit after his 1963 arrest. He’d even suggested he might marry his alleged victim, she said. Her testimony helped convict him.

  Hollywood, meanwhile, was falling deeper in love with the Miranda warning. One evening, Miranda joined his fellow inmates at the Arizona State Penitentiary as they watched a television cop show. When the fictional police officer ordered his partner to read a suspected car thief his “Miranda rights,” the cell block broke into applause.

  After Miranda was paroled from prison in 1972, he obtained some Miranda rights cards from the police and signed and sold them for $1.50 each. He returned to prison briefly, on a charge of illegal possession of a firearm. In January 1976, a man stabbed him to death during a fight in a bar in a seedy corner of Phoenix.

  Miranda’s killer escaped, but the police arrested his accomplice—and read him his Miranda rights, a final irony that has proven irresistible to everyone who’s written about Ernesto Miranda’s life ever since.

  The very ubiquity of the Miranda warning has allowed it to endure despite shifting political and legal winds. In 2000, Dickerson v. United States was widely seen as an opportunity for a conservative-leaning Supreme Court to roll back Miranda; instead, the Court voted 7–2 to reaffirm it. Chief Justice William Rehnquist, a conservative Nixon appointee, wrote the majority opinion: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

  The civil rights attorneys who fought for Ernesto Miranda’s rights helped change the way an entire country thinks about its relationship to authority. Today, the Miranda warning is repeated about 10 million times each year on the streets and in the police stations of the United States and on film and television around the world. In Russia, crime dramas often end with police reading suspects their Miranda rights, even though there is no such requirement in Russian law.

  The 2012 movie 21 Jump Street ends with two police officers making an arrest, following a spectacular car chase and shoot-out. The officers, played by Jonah Hill and Channing Tatum, Mirandize their wounded arrestee in a shouted, joyful chorus. They end with the question Maier and Berliner drafted into their warning in 1966, followed by an insult, and more.

  “Do you understand these rights as they’ve been read to you? Fuck you! Yes! Yes! Yes! We did it! It feels so good!”

  In American drama, the words Ernesto Miranda never heard in that Phoenix interrogation room are the moment when reason triumphs over chaos and violence. On the real-life streets of the United States, they are a court-ordered interlude of reflection. We are a nation of laws, the words say, and those laws protect you now and at all other times. You have rights, the words say, even when there are cuffs on your wrists or when a police detective is glaring at you as if you were the villain in a movie.

  LOVING V. VIRGINIA (1967
)

  In the early hours of July 11, 1958, a sheriff and two deputies burst into Mildred and Richard Loving’s bedroom in Central Point, Virginia. The sheriff had received an anonymous tip that Mildred Loving and Richard Loving were living together as husband and wife, a crime in Virginia. While it is commonly believed that Mildred was of mixed black and Native American descent, she identified as Native American. Richard was white. With his flashlight trained on their startled faces, the sheriff demanded to know who the woman in Richard Loving’s bed was, to which Mildred replied, “I’m his wife.” When Richard Loving tried to prove the fact of the marriage by pointing to the framed marriage license hanging on their bedroom wall, the sheriff told them, “That’s no good here.” The Lovings were arrested and charged with violating Virginia’s anti-miscegenation law.

  Anti-miscegenation laws, which had existed in the United States since the colonial era, prohibited interracial marriage. At the time of the Lovings’ arrest, sixteen states still had anti-miscegenation laws on the books, including Virginia’s Racial Integrity Act of 1924. Under this statute, it was illegal for a white person to “intermarry with a colored person” in Virginia or to evade the prohibition by marrying a member of a different race in another state and returning to Virginia as husband and wife.

  On January 6, 1958, the Lovings pled guilty to violating Virginia’s ban on interracial marriage and were sentenced to one year in jail. However, the judge suspended this sentence for twenty-five years on the condition that the Lovings leave Virginia and never return. After their convictions, the Lovings moved to Washington, DC. However, when they were arrested yet again during a trip to visit family in Virginia, a frustrated Mildred wrote to Attorney General Robert Kennedy. He referred them to the ACLU, which filed a motion in Virginia to have the Lovings’ convictions vacated and sentences set aside on the grounds that Virginia’s anti-miscegenation law violated the Fourteenth Amendment.