Gideon's Trumpet

by Anthony Lewis

  On the first business day of its next term, October 14, 1963, the Supreme Court began dealing with one of the difficult issues it had left undecided in Gideon—whether to apply the new counsel rule retrospectively, to prisoners tried when Betts v. Brady was the law. Ten Florida prisoners convicted without the aid of counsel before March 18, 1963, petitioned for review of the Florida courts’ refusal to grant them writs of habeas corpus. In a brief order the Court granted the petitions, set aside the Florida judgments and sent all the cases back to the Florida Supreme Court “for further consideration in light of Gideon v. Wainwright.” The justices had not themselves made the decision to apply the new rule retrospectively, but they seemed to be inviting the Florida court to do so. Justice Harlan dissented, saying the Supreme Court should have decided the issue itself.

  Florida went ahead and applied the Gideon rule retrospectively, to all who had been convicted of felonies without counsel. The results were spectacular. By January 1, 1964, nine hundred seventy-six prisoners had been released outright from Florida penitentiaries, the authorities feeling that they could not be successfully retried. Another five hundred were back in the courts, and petitions from hundreds more were awaiting consideration.

  It will be an enormous social task to bring to life the dream of Gideon v. Wainwright—the dream of a vast, diverse country in which every man charged with crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense. England already approaches that ideal. No poor man there is tried for at least a serious crime without the offer of counsel; assignment in such cases is an expected part of a barrister’s life, and he receives a fee from the state comparable to what a private client would pay in that kind of case. But England is, by comparison, a small and homogeneous society, with a simpler legal system and a much less serious crime problem. There is a long road to travel before every criminal court in the United States reaches the goal that appears on the façade of the Supreme Court building: Equal Justice Under Law.

  The new responsibilities imposed by the Gideon case on the bar and the courts will be heavy, but there is no sign that the American legal community regards them as unjustified. The president of the American Bar Association, Sylvester C. Smith, Jr., hailed Gideon and the Supreme Court’s other criminal-law decisions on March 18, 1963, as “great advances in the administration of criminal justice in our country.” Chief Justice Carleton Harris of Arkansas, speaking to the Conference of Chief Justices in 1963, said he had “no fault to find with Gideon. The law as to the right of an indigent prisoner to counsel is now, for the first time, positively stated.” In the Record of the Association of the Bar of the City of New York, Ernest Angell wrote: “In retrospect the Gideon decision seems to have been long overdue.”

  The St. Petersburg Times, a highly regarded newspaper in the state where Clarence Earl Gideon was tried and imprisoned without the help of a lawyer, rejoiced in his victory. “There will be those,” the Times said, “who will decry the Supreme Court’s ‘softness’ toward persons accused of crimes. Ironically, many uttering such criticisms are the same ones who decry the ever-increasing size and centralization of government. Most persons, we are sure, will be thankful that the Supreme Court clings to the ancient democratic tradition of protecting the individual against the tyranny of any governmental agency.”

  The Washington Post said: “Like the Gideon of old who was summoned by an angel of the Lord to lead Israel and overcome the Midianites, Clarence Earl Gideon of Panama City, Florida, championed the cause of justice for all indigent defendants.… It is intolerable in a nation which proclaims equal justice under law as one of its ideals that anyone should be handicapped in defending himself simply because he happens to be poor.”

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  The case of Gideon v. Wainwright is in part a testament to a single human being. Against all the odds of inertia and ignorance and fear of state power, Clarence Earl Gideon insisted that he had a right to a lawyer and kept on insisting all the way to the Supreme Court of the United States. His triumph there shows that the poorest and least powerful of men—a convict with not even a friend to visit him in prison—can take his cause to the highest court in the land and bring about a fundamental change in the law. But of course Gideon was not really alone; there were working for him forces in law and society larger than he could understand. His case was part of a current of history, and it will be read in that light by thousands of persons who will know no more about Clarence Earl Gideon than that he stood up in a Florida court and said: “The United States Supreme Court says I am entitled to be represented by counsel.”

  That is the wonder of the law: that it moves case by case, seeking justice for each individual, but that any single case may be part of some larger movement. These great currents may not at first be perceived, even by those who set them flowing. When Justice Sutherland wrote about the right to counsel in 1932, in Powell v. Alabama, he must have had a sense of participation in a great event. He must have known that in holding unconstitutional the trial of the Scottsboro boys without adequate counsel, the Supreme Court was doing something it had never done before—setting aside a state criminal conviction because the procedure used to obtain it was unfair. But Justice Sutherland could hardly have imagined the scope of the constitutional revolution that was to follow Powell v. Alabama.

  The constitutional law of criminal procedure has been wholly transformed in the three decades since Powell v. Alabama. When the process started, a state law-enforcement officer could say with confidence that there were virtually no limits in the federal Constitution on how he went about his job, and virtually no chance that any conviction he won would be reversed by a federal court. Today a pervasive system of constitutional restraints covers almost every aspect of state criminal law enforcement, from arrest through trial and sentence to appeal. All of these limits have been developed by the Supreme Court, case by case, from the vague words of the Fourteenth Amendment: due process of law and equal protection of the laws.

  Just as the Gideon case was part of a movement of the law on the right to counsel, and that in turn was but one aspect of the fundamental change taking place in the constitutional doctrine of fair criminal procedure, so the criminal law trend was part of a larger picture. In many other areas the Supreme Court in the last generation has enlarged the dimensions of individual liberty. It was just six years after Powell v. Alabama when the Court began to enforce the “equal” aspect of the doctrine allowing provision of “separate but equal” facilities for Negroes. Missouri must provide a legal education for Negroes within the state, the Court held, not send them elsewhere. A dissent warned that the Court’s reasoning would eventually threaten the very institution of segregation—as it did. The decisions since have expunged the legal basis for racial discrimination in the United States, if not yet the actuality.

  Outside the racial area the Supreme Court has developed in the last decades a whole panoply of new freedoms for the individual—to read what he wishes, speak what he will, join organizations without fear of governmental reprisal. Some, including Justice Black, have wished the Court to go further in these directions, especially in protection against penalties for Communist associations; but the overall movement remains libertarian in its direction. Most recently, in the Reapportionment case, there has come the first promise of fair representation for the individual in his legislature.

  The unmistakable thrust of the Court toward exaltation of the individual, and restraint on governmental power over him, has been met by the severest criticism, not least for the criminal-law decisions. So much of this criticism is hyperbolic and uninformed that any serious observer is tempted to dismiss it out of hand. But there is good reason not to. Professor Louis L. Jaffe of the Harvard Law School wrote:

  “There will be and there should be popular response to the Supreme Court’s decisions; not just the ‘informed�
� criticism of law professors but the deep-felt, emotion-laden, unsophisticated reaction of the laity. This is so because more than any court in the modern world the Supreme Court ‘makes policy,’ and it is at the same time so little subject to formal democratic control.… It is in politics, and that in a democracy means that it must be prepared to withstand the angry howls of outraged citizens.”

  Professor Jaffe’s comment is a reminder of an easily forgotten truth: That the Court must justify itself to every generation as one of the three great centers of power in the Federal Government. Why should nine appointed lawyers play so large a role in a country that calls itself a democracy? Is it appropriate that the Supreme Court, rather than elected legislators, should reform the country’s criminal procedure or its race relations? Those are the questions raised by Gideon v. Wainwright—or any other decision invoking the extraordinary power of the Supreme Court to measure the acts of other governmental agencies against the law of the Constitution and declare them void.

  In examining the wisdom of judicial review, it is important first to observe that democracy does not exist as a pure commodity anywhere in this country’s governmental processes. State legislatures have long been notoriously unrepresentative of the voters, because of distorted districts. In Congress a handful of senior members from one-party districts hold vastly disproportionate power, and the Senate’s rules allow a minority to block action. The point is not that pure democracy would be desirable; it is that the American system of government includes other elements—and one of them is the balancing power of the judiciary to intervene on behalf of individual freedom.

  The Supreme Court indeed often provides a forum for those—the despised and rejected—who have no effective voice in the legislative chamber. One example is Clarence Earl Gideon. “The poor man charged with crime has no lobby,” Attorney General Kennedy has said. Enlightened opinion holds, without sentimentality, that treating criminal defendants in a decent way serves the interest of a civilized society. Yet legislatures, feeling no demand from the voters, will rarely do anything about unfairness in the administration of the criminal law except under pressure from the courts—or until the courts, especially the Supreme Court, generate a broad moral concern. The criminal-law decisions of the Supreme Court have awakened significant forces in society to the moral considerations, and the result has been a fruitful interplay between court and legislatures. Certainly the concern shown for the right to counsel in 1963 by the Kennedy Administration, Congress, the Ford Foundation and the many bar groups grew in large part out of the Supreme Court’s decisions on the issue over three decades.

  The racial situation is an even more telling example of the Court’s function as a forum for those without a political voice. In some southern states Negroes are virtually excluded from the political process; they carry no weight—less than no weight—in the legislatures. In that circumstance is it undemocratic for the Supreme Court to intervene? Similarly with the issue of legislative apportionment. The Florida legislature, which had long refused to provide counsel for the poor, was so inequitably districted that at the beginning of 1963 some 12 percent of the state’s citizens could elect a majority of the members in both houses. In Florida, as in other states, a small rural minority had power and simply refused to give it up. Again it must be asked whether there was not justification—democratic justification—for opening up avenues of judicial relief, as the Supreme Court did, so that the disenfranchised majority would have some way to break out of the cage.

  The Court can in fact serve as a safety valve, relieving intolerable social pressures that build up when legislatures are unresponsive to urgent needs. Explosive as the racial situation is today, it might have been much worse if the Supreme Court over the last half-century had joined Congress and the southern state legislatures in doing almost nothing to end racial discrimination—nothing about the right to vote, to serve on juries, to use public facilities, to obtain an adequate—not to mention integrated—education.

  But the failings of our legislatures, state and national, are at best a negative justification for judicial power. The great role of the Supreme Court can only be justified, in the end, by the process it brings to bear on public problems—by the distinctive characteristics of the judicial process.

  The Gideon case demonstrated those characteristics. One is the tendency of courts to focus their attention on individual human beings—in this case Gideon. Legislatures necessarily deal in abstractions, usually large abstractions, which is very different from consideration in terms of the impact on an individual. As a general proposition it may seem desirable to enact a statute requiring the deportation of aliens who once belonged to the Communist party. But when that law is applied to a particular person who is fifty-two years old, who came to this country as an infant of six months and joined the party briefly during the Depression, the moral considerations seem very different.

  The Court is forbidden by the Constitution to consider anything but concrete cases, involving the real interests of particular litigants. In a civilization growing less human all the time, with budgets beyond the grasp of men and weapons that can wipe out continents, surely there is special value in an institution that focuses on the individual.

  In comparison with the other agencies of government, the Court also retains an intimate and non-institutionalized character. It does its own work, in Brandeis’s phrase, and every justice bears personal responsibility for what is done. Why this characteristic of the judicial process is important is hard to explain, but anyone who has ever tried to grope his way through the faceless bureaucracy of government and pin down responsibility for a mistake will understand. The obstacles to bringing about a change in governmental policy are symbolized in the traditional defeatist question: “Why fight City Hall?” But in the Supreme Court even Clarence Earl Gideon can freely seek re-examination of past positions, and counsel arguing a case has the most direct and personal opportunity conceivable to reach the minds and hearts of those who decide.

  Argument itself reflects the distinctions of the judicial process. It is so much more concentrated and intellectually focused than, for example, a legislative debate. At its best, a Supreme Court argument can be as searching and uninhibited an examination of an intellectual problem as is found in Washington. In Congressional hearings or debates the real issue often seems—to the listeners’ frustration—to be around the corner. In the Supreme Court justices and counsel can deal directly, in the curiously intimate way that so surprised Bruce Jacob, with the heart of a problem. This is not to say that the Court’s way of doing things is better than the legislators’—only that it is different. The diffused, discursive methods of the legislature reflect the fact that its decisions must be political, reflecting compromises and accommodations of interests that may be concerned with issues entirely apart from the one under consideration. But of Supreme Court justices we demand a process of reason. They must not be legislators, engaged in political bargaining, but lawyers, reasoning by analogy from limited materials, creating the new from the old, shaping experience and ideals into workable principle.

  The search for principle is the essence of the judicial process. It can never be enough for a court to say, as a legislature properly can, “X wins the case because he has more votes behind him.” Especially in the Supreme Court, which must find in the vague words of our fundamental law the guideposts for a nation, every decision should be supported by reasons that appeal to the intellect and to the ethical sense of Americans. The requirement that a court give reasons for its judgments is a basic safeguard, as the country began to realize belatedly during that shameful era when men were labeled “security risks” by boards of quasi-judges who gave no reasons at all and thus avoided responsibility for their conclusions.

  Professor Arthur L. Goodhart, an American who became an English lawyer, master of University College, Oxford, and a great interpreter of the Anglo-American legal tradition, sees in that tradition three great protections against arbitrarines
s: “The judges sit in open court; there is no secret evidence and no secret arguments to which they can listen.… The judges give reasons publicly for their judgments.… The judges act not as a body, but as individuals. Each one is free to dissent. They are thus each other’s severest critics.” Professor Goodhart’s three points might be restated as one aspect of what distinguishes the Supreme Court’s process from a legislature’s: Each justice is personally responsible for decisions that must be based on principle openly argued to the Court and persuasively reasoned in an opinion.

  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.