Gideon's Trumpet

by Anthony Lewis

5 The Holmes phrase is from Truax v. Corrigan, 257 U.S. 312, 344 (1921) (dissenting opinion).

  Chapter 11

  1 Supreme Court Rule 44(1) deals with oral argument. Frankfurter on oral argument: Memorial for Stanley M. Silverberg, in Of Law and Men (Elman, editor) 320, 321 (1956).

  2 Jackson, Advocacy Before the Supreme Court, 37 Amer. Bar Assn. Journal 801, 862 (1951).

  3 The Holmes remark is quoted in Freund, The Supreme Court of the United States 169 (1961).

  4 Jackson on advocacy, op. cit., p. 803.

  5 The Hughes story is in McElwain, The Business of the Supreme Court as Conducted by Chief Justice Hughes, 63 Harv. L. Rev. 5, 17 (1949).

  6 The Stone letter about the Court building is in Mason, Harlan Fiske Stone, Pillar of the Law 405–6 note (1956).

  7 The Supreme Court had decided twelve right-to-counsel cases since Quicksall v. Michigan.

  Chapter 12

  1 Hughes, The Supreme Court of the United States 68 (1928).

  2 The cases decided March 18, in order, before Gideon v. Wainwright: Draper v. Washington, 372 U.S. 487; Lane v. Brown, 372 U.S. 477; Fay v. Noia, 372 U.S. 391; Douglas v. California, 372 U.S. 353; Gray v. Sanders, 372 U.S. 368.

  3 The Pennsylvania case: Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 176 A.2d 94 (1961).

  Chapter 13

  1 Stewart, Right to Counsel, 18 Legal Aid Brief Case 91, 93 (1960).

  2 The Bennett testimony was before the Senate Judiciary Committee.

  3 Ervin, Uncompensated Counsel: They Do Not Meet the Constitutional Mandate, 49 Am. Bar Assn. Journal 435, 436 (1963).

  4 Attorney General Kennedy’s testimony was before House Judiciary Subcommittee No. 5, May 22, 1963.

  5 Whitney Seymour spoke to the National Conference of Bar Presidents in Chicago, August 10, 1963.

  6 The Clark speech was to the Virginia State Bar Association, July 13, 1963.

  7 Judge Lumbard’s comment was in an address to the New England Conference on the Defense of Indigent Persons Accused of Crime, Cambridge, October 31, 1963.

  8 Clark, Law Day address at St. Louis University, April 20, 1963.

  9 Warren, remarks at the luncheon of the Conference of Judicial Councils, May 23, 1963.

  10 The first reaction in the states to Gideon v. Wainwright was summarized in the New York Times, June 30, 1963, p. 39.

  11 The Maryland case was White v. Maryland, 373 U.S. 59 (1963).

  12 The cases on retrospective application: Pickelsimer v. Wainwright, 375 U.S. 2 (1963).

  13 The Smith statement is in 8 American Bar News No. 4, p. 8. Chief Justice Harris of Arkansas addressed the Conference of Chief Justices in Chicago Aug. 9, 1963.

  14 Angell, The Burial of Betts v. Brady, 18 Record of the Assn. of the Bar 265, 271 (1963).

  15 The St. Petersburg Times, March 20, 1963, p. 14-A.

  16 The Washington Post, Aug. 11, 1963, p. E4.

  Chapter 14

  1 In the development of the constitutional law of criminal procedure the line of coerced-confession cases begins with the revolting physical brutality of Brown v. Mississippi, 297 U.S. 278 (1936). (Three Negroes were charged with murder; one was hanged from a tree until he confessed, and the other two had their “backs cut to pieces with a leather strap with buckles on it,” in Chief Justice Hughes’ words.) Now psychological pressure is enough to void a confession. A week after the Gideon case the Court barred the use of a statement that the police had obtained from a woman by threatening to take her children from her if she did not confess. Lynumn v. Illinois, 372 U.S. 528 (1963). The Court has also begun to move in on the ugly American phenomenon of pre-trial publicity prejudicial to the defendant. In Irvin v. Dowd, 366 U.S. 717 (1961) it set aside the conviction of an accused murderer because a majority of his jurors admitted that they had been prejudiced against him by stories describing him as a “mad-dog killer.” In Rideau v. Louisiana, 373 U.S. 723 (1963), a defendant’s oral confession to the sheriff was filmed in jail and broadcast to the community on television three times. Justice Stewart, writing for the Court, said these “kangaroo-court proceedings” were “a more subtle but no less real deprivation of due process of law” than the torture in Brown v. Mississippi In one generation the meaning of due process had been enlarged by the Supreme Court to prohibit not only physical cruelty but the latest electronic methods of degrading the human personality.

  2 The Missouri law-school segregation case was Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

  3 The Reapportionment Case: Baker v. Carr, 369 U.S. 186 (1962).

  4 Jaffe, Impromptu Remarks, 76 Harv. L. Rev. 1111 (1963).

  5 The remark of Attorney General Kennedy was in testimony before House Judiciary Subcommittee No. 5, May 22, 1963.

  6 For an illustrative deportation case see Niukkanen v. McAlexander, 362 U.S. 390 (1960).

  7 Goodhart, Legal Procedure and Democracy, 47 Journal of the American Judicature Society 58, 61 (1963).

  8 Appointment of judges to serve during good behavior was established in England by the Act of Settlement of 1700.

  9 Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956).

  10 Holmes on the unifying national role of the Supreme Court: in Law and the Court, a 1913 address reprinted in An Autobiography of the Supreme Court (Westin, editor) 134, 137 (1963).

  11 Justice Frankfurter used the phrase “conscience of society” in Bartkus v. Illinois, 359 U.S. 121, 128 (1959). The interplay of the Court and public opinion on school segregation is brilliantly traced in Bickel, The Least Dangerous Branch 266–7 (1962).

  12 Chambers v. Florida, 309 U.S. 227, 241 (1940).

  13 The quotation from Professor Allen is at p. 219 of his De Paul article, op. cit.

  14 De Tocqueville, I Democracy in America 151 (Knopf edition 1951).

  15 The case of the bakers’ ten-hour day was Lochner v. New York, 198 U.S. 45 (1905).

  16 Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L. Rev. 673 (1963).

  17 Frankfurter on procedural safeguards: McNabb v. United States, 318 U.S. 332, 347 (1943). And on the advancing standards of due process: Wolf v. Colorado, 338 U.S. 25, 27 (1949).

  Suggested Readings

  The Supreme Court

  Freund, Paul A., The Supreme Court of the United States, Meridian, Cleveland (1961). A paperback that gives an intimate and sensitive view of the Court and its function.

  Curtis, Charles P., Jr., Lions Under the Throne, Houghton Mifflin, Boston (1947). The argument is that, ultimately, the Court must be subordinate to the political arms of Government.

  Bickel, Alexander M., The Unpublished Opinions of Mr. Justice Brandeis: the Supreme Court at Work, Harvard University Press, Cambridge (1957). A revealing, scholarly portrayal of a justice at work.

  Cahn, Edmond (editor), Supreme Court and Supreme Law, Indiana University Press, Bloomington (1954). Essays and dialogue on the Court’s direction at the beginning of the contemporary period.

  Frank, John P., Marble Palace: the Supreme Court in American Life, Alfred A. Knopf, New York (1958). A layman’s view of the Court, lively but one-sided.

  Warren, Charles, The Supreme Court in United States History, revised edition in two volumes, Little, Brown, Boston (1960). The history of the Court in fascinating if uncritical detail, from the beginning to 1918.

  By and About the Justices

  Jackson, Robert H., The Supreme Court in the American System of Government, Harvard University Press, Cambridge (1955). The final views of the most articulate recent justice, published posthumously.

  Westin, Alan F. (editor), An Autobiography of the Supreme Court, Macmillan, New York (1963). A collection of extra-Court articles and comments by the justices, from early days to the present, including most of the Jackson book cited above.

  Henson, Ray D. (editor), Landmarks of Law, Harper and Brothers, New York (1960). A broader collection, including famous legal articles not by Supreme Court justices as well as comments.

/>   Jackson, Robert H., The Struggle for Judicial Supremacy, Vintage, New York (1941). His views after the Roosevelt Court-packing struggle and before he went on the bench himself.

  Frankfurter, Felix, Of Law and Men (Elman, Philip, editor), Harcourt, Brace and Co., New York (1956). A collection of essays expressing Justice Frankfurter’s influential views.

  Black, Hugo L., One Man’s Stand for Freedom (Dilliard, Irving, editor), Alfred A. Knopf, New York (1963). The other side: Justice Black’s opinions and out-of-Court comments collected.

  Hughes, Charles Evans, The Supreme Court of the United States, Columbia University Press, New York (1928). Written just before Hughes went back on the bench as Chief Justice, and still a classic comment on the Court.

  Howe, Mark DeWolfe, Justice Oliver Wendell Holmes: I The Shaping Years, Belknap Press of Harvard University Press, Cambridge (1957). Justice Oliver Wendell Holmes: II The Proving Years, Belknap, Cambridge (1963). The outstanding judicial biography of our day has not yet brought Justice Holmes to the Supreme Court but has already exposed the sources of his ideas.

  Mason, Alpheus Thomas, Harlan Fiske Stone: Pillar of the Law, Viking, New York (1956). A rambling, occasionally obtuse biography whose use of the Stone papers has been criticized as improper but which is not the less interesting for them.

  Dunham, Allison (editor), Mr. Justice, University of Chicago Press, Chicago (1956). Sketches of nine justices.

  Judicial Power

  Hand, Learned, The Bill of Rights, Harvard University Press, Cambridge (1958). Judge Learned Hand’s Holmes Lectures at Harvard, the leading recent expression of skepticism about the benefits of judicial review.

  Wechsler, Herbert, Principles, Politics and Fundamental Law, Harvard University Press, Cambridge (1961). Among the collection: a follow-up to Judge Hand, less skeptical but still troubled by judicial performance.

  Bickel, Alexander M., The Least Dangerous Branch: the Supreme Court at the Bar of Politics, Bobbs-Merrill, Indianapolis (1962). Comments on Professor Wechsler and the role of the Court generally, still on the skeptical side.

  Black, Charles L., The People and the Court: Judicial Review in a Democracy, Macmillan, New York (1960). An enthusiastic endorsement of judicial power.

  The Right to Counsel

  Equal Justice for the Accused: Report of a Special Committee of the Association of the Bar of the City of New York and of the National Legal Aid and Defender Association (1959). What is now done for indigent defendants across the country.

  Assistance to the Indigent Accused: A Problem Pamphlet by the Joint Committee on Continuing Legal Education, of the American Law Institute and the American Bar Association (1961). A handy collection of legal and political materials on the problem and what to do about it.

  Beaney, William M., The Right to Counsel in American Courts, University of Michigan Press, Ann Arbor (1955). Especially valuable for its history of the issue.

  Brownell, Emery A., Legal Aid in the United States, Lawyers Cooperative Publishing Co., Rochester (1951). Supplement (1961). A survey of prevailing systems.

  Fellman, David, The Defendant’s Rights, Holt, Rinehart and Winston, New York (1958). A concise and accurate statement, before more recent Supreme Court decisions, of all the rights available to criminal defendants—going beyond counsel.

  McKay, Robert B., An American Constitutional Law Reader, Oceana Publications, New York (1958). A paperback tracing in concise and readable form the major trends in constitutional decision from the beginning until now. Criminal law fitted into the larger picture.

  Table of Cases

  Note: The cases of Betts v. Brady and Gideon v. Wainwright (Gideon v. Cochran) appear so frequently that they are not indexed.

  Adamson v. California, 94

  Adkins v. du Pont, 36n.

  Ashwander v. Tennessee Valley Authority, 21n.

  Baker v. Carr, 220n.

  Barron v. Baltimore, 93

  Bartkus v. Illinois, 47, 92n., 228n.

  Brown v. Allen, 35n., 83n.

  Brown v. Board of Education, 29n.

  Brown v. Mississippi, 97n., 219n.

  Burnett v. Coronado Oil & Gas Co., 88n.

  Carnley v. Cochran, 121

  Carter v. Carter Coal Co., 90n.

  Chambers v. Florida, 162, 230

  Chewning v. Cunningham, 121n.

  Commonwealth ex rel. Simon v. Maroney, 142n., 201n.

  Crooker v. California, 136n.

  Davis v. Wechsler, 21n.

  Dennis v. United States, 49n.

  Douglas v. California, 195n.

  Draper v. Washington, 195n.

  Durham v. United States, 54n.

  Engel v. Vitale, 50n.

  Erie Railroad v. Tompkins, 14n.

  Everson v. Board of Education, 87n.

  Fay v. Noia, 195n.

  Foster v. Illinois, 30n., 118n.

  Gitlow v. New York, 95n.

  Goldman v. United States, 87n.

  Gray v. Sanders, 195n.

  Green v. United States, 89n.

  Griffin v. Illinois, 97, 98, 121, 126, 131, 137, 141, 144

  Gryger v. Burke, 119, 128n.

  Hamilton v. Alabama, 118n.

  Hudson v. North Carolina, 120

  Irvin v. Dowd, 219n.

  Johnson v. Zerbst, 114, 116, 198, 202, 232

  Kinsella v. Singleton, 130n.

  Knapp v. Schweitzer, 92n.

  Lane v. Brown, 195n.

  Lochner v. New York, 231n.

  Lynumn v. Illinois, 219n.

  Mapp v. Ohio, 98–9, 124, 142, 144, 150, 152, 189

  Marbury v. Madison, 84

  Martin v. Hunter’s Lessee, 17–18

  McCulloch v. Maryland, 90

  McNabb v. United States, 232n.

  McNeal v. Culver, 120, 129n.

  Missouri ex rel. Gaines v. Canada, 220n.

  Moore v. Dempsey, 96n.

  N.A.A.C.P. v. Alabama, 21n.

  N.L.R.B. v. Jones & Laughlin Co., 90n.

  Niukkanen v. McAlexander, 223n.

  Palko v. Connecticut, 95n.

  Peters v. Hobby, 22n.

  Pickelsimer v. Wainwright, 215n.

  Plessy v. Ferguson, 89n.

  Poe v. Ullman, 22n.

  Powell v. Alabama, 110–11, 117, 144, 181, 186, 198, 199, 200, 219, 220, 229, 230

  Prudential Insurance Co. v. Cheek, 95n.

  Quicksall v. Michigan, 120n., 181, 200

  Reid v. Covert, 130n.

  Rideau v. Louisiana, 219n.

  Robinson v. United States, 137n.

  Rogers v. Missouri Pacific

  Railroad, 43n.

  Scott v. Sandford, 21, 231

  Shelley v. Kraemer, 150n.

  Spano v. New York, 97n.

  Thompson v. Louisville, 20n.

  Tileston v. Ullman, 22n.

  Tomkins v. Missouri, 118n.

  Townsend v. Burke, 119

  Truax v. Corrigan, 166n.

  United States v. Butler, 90n.

  Uveges v. Pennsylvania, 119

  Watts v. Indiana, 97n.

  West Virginia Board of Education v. Barnette, 85n.

  White v. Maryland, 214n.

  Williams v. Kaiser, 118n.

  Wolf v. Colorado, 96n., 232n.

  ABOUT THE AUTHOR

  ANTHONY LEWIS is a columnist for the New York Times. He was previously its Chief London Correspondent and before that was in the Times Washington Bureau, covering the Supreme Court and the Justice Department.

  Mr. Lewis was born in 1927 in New York City. After graduating from Harvard in 1948, he spent four years with the Sunday department of the New York Times and then became a general assignment reporter for the Washington Daily News. While working for the News he won a Pulitzer Prize for national correspondence and the Heywood Broun Award in 1955 for a series of stories on the Federal loyalty-security program. He was a Nieman Fellow in 1956–1957. In 1963 he won a second Pulitzer Prize for his reporting on the Supreme Court. He is the co-author, with the New York Times, of Portrait of a D
ecade: The Second American Revolution.

  Mr. Lewis makes his home in Cambridge, Massachusetts.