Justice Stewart: “When was the last time we did not find special circumstances? I think there have been none in my four and one-half terms on the Court.”
Fortas: “I think it was Quicksall and Michigan, in 1950.… Of course this [the special-circumstances approach] is wrong. How can a judge, when a man is arraigned, look at him and say there are special circumstances? Does the judge say, ‘You look stupid,’ or ‘Your case involves complicated facts’? It is administratively unworkable.”
Justice Harlan: “The states are recognizing that.”
Fortas took up that point and outlined the situation in the states. He used Professor Kamisar’s figures: thirty-seven states now provided counsel for the poor in all felony trials, eight others frequently did so as a matter of practice, five made no regular provision for counsel except in capital cases. But he did not agree with any implication in Justice Harlan’s question that the movement by the states to act themselves argued against a step forward now by the Supreme Court. He noted the brief amicus curiae for twenty-three states in favor of overruling Betts and said he was “proud of this document as an American.” Then he argued that the growing acceptance of the right to counsel made a reinterpretation of the Constitution easier.
“I believe we can confidently say that overruling Betts versus Brady at this time would be in accord with the opinion of those entitled to an opinion. That is not always true of great constitutional questions.… We may be comforted in this constitutional moment by the fact that what we are doing is a deliberate change after twenty years of experience—a change that has the overwhelming support of the bench, the bar and even of the states.”
Justice Goldberg raised the problem of the limits on what Fortas was asking. At what stage of a criminal case must a lawyer be supplied? In what kinds of cases?
“Do we have to pass on that?” Justice Clark interjected.
“No, sir, not at this time,” Fortas said. But he went on to give his own opinion anyway: A lawyer should be provided at least from the first arraignment of the prisoner before a magistrate, through his trial and appeal; and the right should apply in all save “petty offenses.”
Justice Stewart thought the definition of “petty offenses” might produce difficulties, might be “more of this ad hoc judging you’re trying to get away from.… What about traffic violations?” Fortas said he personally saw no difficulty in providing lawyers even for traffic offenders who wanted them. He knew that sounded strange, but it would work. Only an occasional odd-ball would ask, and it would be easy to say to him: “Yes, sir, go right down the hall to that door, that’s the public defender’s office, they’ll see you.”
It was noon by this time, and the Court rose for lunch. Afterwards Fortas hoped to say just a few words more, then reserve about ten minutes of his time for a rebuttal, as the opening counsel is allowed to do. But he was still being questioned when the marshal of the Court, sitting to the right of the bench, threw the switch for the small white light on the lectern that indicates counsel has only five minutes left. And the questions continued.
Justice Stewart asked whether he was right in his impression that Fortas was not arguing the old proposition that the Fourteenth Amendment had incorporated the Sixth Amendment as such. Fortas agreed—he was not. But the answer that pleases one justice may arouse another, and this one aroused the member of the Court who had been arguing for a generation that the Fourteenth Amendment incorporated the entire original Bill of Rights—Justice Black. He asked in a puzzled way why Fortas was laying aside that argument.
“Mr. Justice Black,” Fortas replied, “I like that argument that you have made so eloquently. But I cannot as an advocate make that argument because this Court has rejected it so many times. I hope you never cease making it.”
Justice Black joined in the general laughter.
“You are saying,” Justice Brennan said helpfully to Fortas, “that the right to counsel is assured by the Fourteenth Amendment whether by absorption, incorporation or whatever.”
“Mr. Justice,” said Fortas, “you seem to know me well.”
At that the red light on the lectern went on, meaning that Fortas’s hour was up. But as he sat down, the Chief Justice gave him an additional five minutes for rebuttal, adding the same to Jacob’s time on the other side.
Next came Rankin’s appearance as a friend of the court. As he had when he was Solicitor General, he spoke softly, in homely phrases, and with an air of deep sincerity.
“Judges have a special responsibility here,” Rankin began, “and so do lawyers. It just isn’t true that laymen know these rules of law (the sophisticated concepts of criminal law). That’s what’s wrong with Betts. It is time—long past time—that our profession stood up and said: ‘We know a man cannot get a fair trial when he represents himself.’ It is enough of a fiction to claim that an ordinary lawyer can present a case as well as the prosecutor with all his experience in court. But when you take a layman and put him at odds, you can’t have a fair trial except by accident.”
Thus Rankin, appropriately for his role, was focusing less on Gideon the individual and more on the broad problem from the viewpoint of the legal profession. Justice Harlan accused him of making too “sweeping generalizations” about the impossibility of fair trial without counsel. Rankin agreed that it was not absolutely impossible to be tried fairly without a lawyer’s help, but he said Betts had the generalization backward—it assumed that only in the special case did a man need a lawyer, while the truth was that it was the rare case where one did not need counsel.
Justice Goldberg: “If it’s a generalization (the need for counsel), isn’t there substantial support for it in the Constitution? The framers of the Sixth Amendment thought there should always be counsel.” [That was, historically, a doubtful proposition.]
Rankin: “That’s what I think.”
Justice Stewart: “Isn’t that generalization the assumption behind the legal profession? Florida wouldn’t let Gideon, a non-lawyer, go into court and represent anyone else.”
Rankin ended by dismissing as unproved prediction the charge that overruling Betts would empty the jails. He said the Court should apply the new doctrine assuring counsel retrospectively, to past as well as future cases. Justice Harlan asked whether the Court could constitutionally limit a decision to future operation. Rankin said he was doubtful.
At 1:10 in the afternoon Bruce Jacob’s turn came. Looking extremely young and earnest, he began by giving a little more description of Gideon—his age (fifty-two), color (white) and previous felony convictions (four). Then he complained about the inclusion of the trial transcript in the printed record.
Justice Harlan: “Why do you bother about that?”
Jacob: “Okay, I won’t press it.”
Justice White: “You are not questioning our jurisdiction in this case?”
Jacob: “No, your Honor.”
From then on, Jacob was deluged by questions. There was scarcely a consecutive five-minute period when he could talk without interruption. Considering his unfamiliarity with the process and the unpopularity of his cause, he showed commendable stamina.
Justice Black: “Why isn’t it (Betts) as much interference with the states as an absolute rule? One of my reactions to Betts was the uncertainty in which it leaves the states.”
Jacob: “I don’t think Betts is that unclear.”
Justice Black: “How do you know what the ‘special circumstances’ are?”
Jacob: “Each time this Court decides a case, we know another special circumstance.”
Justice Brennan: “In recent years—in four cases I think—we have reversed cases from your state every time.”
Jacob: “We prefer case-by-case adjudication.… It may not be precise, but we prefer it that way because it gives the state some freedom in devising its own rules of criminal procedure.”
———
Jacob: “History argues against the drawing of inflexible lines, and this Court has never laid down an
y fixed rules on the right to counsel.”
Justice Brennan: “What about Powell against Alabama? Doesn’t that lay down a rule for capital cases?”
Jacob: “That was decided on the circumstances.…”
Justice Harlan: “Perhaps so, but subsequent cases have made clear that there is a fixed rule for capital cases. There is no point in your arguing that.”
Justice Black: “What historical support have you found for the distinction between capital and non-capital cases?”
Jacob: “Your honor, I can’t think of any.”
Justice Black: “I can’t either. That’s why I asked.”
Justice Stewart: “There is nothing in the language of the Fourteenth Amendment, certainly, to make the distinction. It speaks of life, liberty or property.”
Jacob: “There is a practical distinction between capital and non-capital cases if you want to draw the line somewhere. Everyone is fearful of being put to death.…”
Justice Black: “Maybe they’re fearful of spending years in the penitentiary, too.”
Jacob: “By imposing an inflexible rule, we feel this Court would be intruding into an area historically reserved to the states. It would stifle state experimentation. For example, a state might eliminate prosecutors as well as defense counsel and leave the whole trial to the judge.”
Justice Harlan: “Don’t go too far now.”
Justice Stewart (repeating a point he had made to Rankin): “Gideon would not be allowed to represent others in court.”
Jacob: “If a defendant asked for him, I’m sure the judge wouldn’t object.”
Justice Black: “The local bar association might!”
Jacob: “I’m sorry, your honor, that was a stupid answer.”
———
Jacob next talked about the consequences of overruling Betts v. Brady—grave consequences, as he saw them. The new doctrine would necessarily extend to trivial cases, and the cost of providing counsel would be “a tremendous burden on the taxpayers.” The next thing one knew, indigents would also be demanding other free services—psychiatrists, expert witnesses and so forth. “In effect, this court would be requiring the states to adopt socialism, or a welfare program.” Finally, Jacob emphasized the 5,093 convicts now in Florida prisons who were tried without counsel and might now be eligible for release if Betts were overruled. “If the Court does reverse, we implore it to find some way not to make it retroactive. We have followed Betts in good faith.…”
Chief Justice Warren wanted to know whether some of those 5,093 Florida convicts were illiterate. His point was plain—and deadly. An illiterate defendant was entitled to counsel even under Betts v. Brady, since illiteracy qualified as a special circumstance, so the chances were that any illiterates among those 5,093 tried without counsel had been deprived of their constitutional rights. Because they lacked Clarence Earl Gideon’s determination, or luck, they had not won redress in the courts.
“I have no way of knowing,” Jacob said to the Chief Justice.
“No, but what do you think?” the Chief Justice pressed. “Do you think most of them are literate or illiterate?”
“I don’t know, but I am sure some of them are illiterate.”
Jacob concluded without using his extra five minutes, and then George Mentz of Alabama took over. He was an older man, gray-haired, more experienced than Jacob and much more at ease. He was questioned just as frequently, but the questions seemed to give him less pain. He answered in a charming Southern voice, making graceful concessions.
“I candidly admit,” he began, “that it would be desirable for the states to furnish counsel in all criminal cases. But we say the states should have the right to make that decision themselves.”
Justice Harlan: “Supposing Betts is not overruled. How many years is it going to take Alabama to pass a law like New York and the other states?”
Mentz: “I don’t know, but there is a growing feeling in the trial courts that something should be done.”
———
Mentz: “Our judges are conscientious in protecting indigent defendants.”
Justice Stewart: “We can assume all of that with you, but a judge’s job is to be a judge. This was he would be an advocate for one of the litigants.”
Justice Goldberg: “What about the vital matter of the final address to the jury? Surely a judge can’t take over that job of advocacy.”
Mentz: “That is true.… But prosecutors are more lenient with unrepresented defendants.…”
Justice Stewart: “Isn’t that a matter of trial strategy? It might backfire if the prosecutor were tough and the jury saw the defendant there helpless.”
Mentz: “Well, yes, sir.”
Justice Stewart: “All you’re saying is that the absence of counsel impedes the adversary system of justice.”
Mentz: “I didn’t mean to go that far.”
Justice Stewart: “I’m sure you didn’t.”
———
Mentz: “In actuality, indigents without lawyers probably get off easier. The average Alabama lawyer is not equipped to deal with the career prosecutor. An articulate defendant may get his story across to the jury better.”
Justice Black: “That’s not very complimentary to our profession.”
Mentz (good-humoredly): “No, sir.”
Justice Douglas: “Maybe if laymen are as effective as you say, we should get the Sixth Amendment repealed.”
Mentz: “Mr. Justice, I didn’t mean to go that far. I meant only that laymen are not at so great a disadvantage—”
Justice Douglas: “—as some appellate judges think.”
Justice Harlan: “Supposing you had a choice—as you see it, representing the state—of maintaining Betts on the books and then having a succession of cases come to this Court every one of which was reversed by finding special circumstances, so that everyone would know we were only paying lip service to Betts, or of overruling it.”
Mentz: “We’d rather see them decided case by case.”
Justice Harlan: “Even though you know how all of them will come out.”
Mentz: “ ‘Hope springs eternal.’ ” [Laughter in the courtroom.]
Then Fortas got up for his rebuttal. He said a word about Mapp v. Ohio, the case in which—two years before—the Supreme Court had reinterpreted the Constitution to bar the use of illegally seized evidence in state trials. “To paraphrase Mr. Justice Clark’s opinion there, time has set its face against Betts and Brady.” He noted also Justice Clark’s opinion in the second overseas court-martial cases, saying they removed any basis for a constitutional distinction between crimes subject to the death penalty and others.
“I think Betts and Brady was wrong when it was decided,” Fortas said in his peroration. “I think time has made that clear. And I think time has now made it possible for the correct rule, the civilized rule, the rule of American constitutionalism, the rule of due process to be stated by this Court with limited disturbance to the states.”
Justice Harlan had one more question. Had Mr. Fortas, in his research, found any errors in Justice Roberts’ exposition of the history of the right to counsel in his opinion in Betts v. Brady? Clearly Justice Harlan would find it much easier to overrule Betts if that decision could be shown to have been based on erroneous historical premises. But Fortas had no comfort to offer there. He replied: “We would have some differences, perhaps, but I don’t say that the historical technique of constitutional interpretation will reach my result.”
In order to overrule Betts, then, Justice Harlan would have to look at the same problem that had faced Justice Roberts in 1942 and say that a different answer was required in 1963. As a believer in stare decisis he would not find that easy to do, and yet he seemed to want to turn away from Betts v. Brady. The last word in the argument was Justice Harlan’s, and it showed the struggle going on inside him. “What one is left with,” he said, “is getting one’s hands on something that has happened in the last twenty years.…”
; 12
The justices ordinarily take their first formal vote on the merits of a case at the Friday conference immediately following the oral argument. Within the next few days the Chief Justice, if he is in the majority, sends a formal note assigning the opinion to one member of the Court (or keeps it for himself); if the Chief is in the minority, the senior justice on the side that prevailed at conference assigns the opinion. The minority usually agrees about who will write the dissent. Notwithstanding such assignments, any member of the Court is free to write his own concurring or dissenting opinion if he wishes, and they often do. Jefferson, who feared Chief Justice Marshall’s persuasive power over his brethren, thought every member of the Court should have to write his own opinion in every case. A few years ago Justice Harlan, as he began a dissent that was the fourth opinion in the same case, said drily: “We have almost reached Jefferson’s ideal.”
When draft opinions are completed, they are sent to the print shop in the basement, set in type and proofs run. The proofs are carefully numbered so that no set can stray and opinions thereby leak to the outside world. These drafts are circulated among the Court, and comments come back to the author of the opinion from the other justices.
Occasionally, at this stage, minds change. The justice assigned the opinion may find after research that he cannot support the reasoning he suggested at conference; a new majority may then form behind his revised views, or the opinion may be reassigned. Dissenting drafts may change votes, sometimes enough votes to convert the minority to the majority. Exchanges of view by memoranda, new drafts and personal discussion continue until everyone is as nearly satisfied as is possible in the limited time available. The working papers of Justice Brandeis that were preserved include the thirty-fourth printed draft of one of his opinions. Inevitably, in trying to please eight editors, the author of the majority opinion finds himself removing much of the personal flavor from his product. The dissenter, on the other hand, as Chief Justice Hughes said, can “express his individuality. He is not under the compulsion of speaking for the Court and thus of securing … a majority. In dissenting, he is a free lance.” Hughes went on—and he might have been speaking of Justice Black’s opinion in Betts v. Brady—“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
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