by Jim Newton
Clarence Gideon offered no such drawbacks. His relatively innocuous crime gave the Court the chance to make important law with a minimum of controversy. What’s more, the votes were there: Brennan and Warren had shown their willingness to overturn Betts. Black and Douglas had dissented from Betts when it was first decided; their views were clear. With the addition of Goldberg, there was little doubt of a fifth liberal vote. Inside the Court, the shift was even more apparent, as the justices already had voted, in Douglas v. California, to require California to provide indigent defendants with a lawyer for their appeal.72 There was no way to require a lawyer for appeal but not for trial, so Gideon was a foregone conclusion, though that was invisible outside the Court, as Douglas had been held over and not been announced when the justices took up Gideon.73 Thus, the outcome of his case was preordained before Gideon wrote to the Court from his cell and before Fortas made his historic argument on Gideon’s behalf.
If that undermines Gideon’s romance—of the poor defendant scratching out his appeal with pencil and paper, reaching out to the nation’s highest tribunal, and finding a fair and receptive audience willing to do justice—it does nothing to detract from Gideon’s importance. In 1963, five states—Florida, Alabama, Mississippi, and North and South Carolina—routinely forced indigent defendants to represent themselves in criminal trials. It fell to Hugo Black to wipe out that blot. Black argued not that circumstances had changed since Betts was decided or that new principles had been developed or revealed. Instead, he insisted, as he had in 1942, that Betts was wrong then and wrong still. It was, as twenty-two states had argued in their brief on Gideon’s behalf, “an anachronism when handed down.”74 The right to a lawyer was so basic to fairness, Black wrote, that states could not deny it any more than the federal government could.
With Gideon, Black finally prevailed in Betts. And he did so for a unanimous Court. Only Harlan was left to grumble at the abrupt overturning of Betts. He agreed that it should go, but complained that it was “entitled to a more respectful burial than has been accorded.”75 Harlan used his concurrence also to stress that the Court was not, with Gideon, adopting Black’s long-standing view that the Fourteenth Amendment incorporated wholesale the Bill of Rights and made those requirements binding on the states. Still, Gideon was now the law, so held by a unanimous Warren Court. With its announcement, on March 18, 1963, another obstacle to the equality of Americans and the fairness of their nation fell.
Clarence Gideon, represented this time by a lawyer, was tried again and acquitted. His story became the basis for Anthony Lewis’s gripping Gideon’s Trumpet, and Gideon helped launch the Warren Court of lore. Like Baker and Engel—the redistricting and religion cases—it attracted the support of the Kennedy administration, where Bobby Kennedy enthusiastically endorsed it. More important, its appeal to such a fundamental American understanding of fairness blunted the criticism that resulted from the Court’s other landmark rulings of the early 1960s—and of those still to come. That conclusion was perfectly Warren, and though it was Black who put the Court’s rule into words, it was Warren who steered the case to that outcome—from his appointment of Abe Fortas to argue it to the assignment of the opinion to Black. For Warren, Gideon was right because it was fair. Clarence Gideon’s victory was Warren’s as well.
That was the spring of 1963. Kennedy had been in office for two years, and much of the nation was charmed by its glamorous President and First Lady, awash in a happy and productive period. Kennedy was laying early plans for his reelection, a campaign made easier by the self-destruction of Richard Nixon. But the stir-rings of liberty and patriotism that so moved so many supporters of the president had not reached all Americans. Indeed, some of the progress toward a more equal America—the progress initiated by the Warren Court, pleaded for by sit-in protesters, and cautiously nurtured by the Kennedy administration—had created a thirst for more and a frustration at the slow pace of change. And thus, as 1963 unfolded, the demands for faster progress toward the elimination of state-supported racism quickened.
This time, the battle would occur at the time and place of Martin Luther King’s choosing. He and his closest aides picked Birmingham, Alabama, and they spent months honing their program for a confrontation with that city’s notorious Bull Connor. The White House was not consulted, though FBI agents had picked up rumblings in their wiretaps.76 Two days before the scheduled kickoff of the campaign, which a King adviser had code-named “Project C” (C standing for “Confrontation”), an Alabama judge issued an injunction barring 133 people, starting with King, from waging any sort of public protest. King elected to defy the order, and took to the streets as promised, on Good Friday. He was tossed inside a paddy wagon and taken to jail, where he was placed in solitary confinement. While locked away, King wrote his “Letter from the Birmingham Jail.”77
While King’s removal from the streets temporarily quieted Birmingham, on May 2, the two sides confronted each other again; this time, King was accompanied by 958 children, waves of them marching toward City Hall. By nightfall, 600 Birmingham boys and girls were in jail. “I have been inspired and moved today,” King announced that night to a nervous crowd of parents. The following morning, the march went on again, so many children flooding the streets of segregated Birmingham that Connor directed Fire Captain G. V. Evans to spray the youngsters down. Much of the crowd fell back, but a few held their ground. Firemen then ratcheted up the pressure in the hoses, turning to special nozzles so strong that they could knock bricks from buildings. When they opened those hoses up on the children, it scattered them like leaves tumbling across pavement. Screaming and in disarray, some tried to throw bricks or rocks, others fell back and formed their peaceful protest lines once more. Connor then unleashed the dogs. Turning on bystanders as well as protesters, officers allowed the dogs to maul Negro children. One image told the story of Birmingham: In it, a white police officer in dark sunglasses held the leash of his German shepherd as the dog sank its teeth into the abdomen of a fifteen-year-old black boy. The photograph, Taylor Branch memorably records, “struck like lightning in the American mind.”78
Americans winced at the images of shattered, bitten children. Volunteers flooded Birmingham. Where hundreds had at first risked liberty and safety, now thousands rose to take their place. Birmingham leaders, in the midst of a contested election that divided their leadership, struggled to shed their new image as the center of American racism while still resisting direct talks with the Negro leadership that they held responsible for the violence. The White House desperately attempted to broker a truce. King and the Kennedys warily circled each other, talking and threatening through intermediaries. Finally, after weeks of protesting and often dispiriting negotiations, city and civil rights leaders struck a tentative deal on May 10. The protests would stop, and in return, Birmingham would desegregate lunch counters, restrooms, dressing rooms and drinking fountains; Negroes would be hired to fill city jobs, and the city’s white leaders would help secure the release of those then in jail.79 News of the deal enraged the local Ku Klux Klan, which expressed itself by bombing the home of King’s brother and the hotel that King had only shortly before departed. Furious, Birmingham’s Negroes wandered into the streets, and some fought with police, who then went on a rampage of retaliation. Andrew Young, King’s reliable lieutenant, rushed back to Birmingham from Atlanta to calm the black community even as King’s destroyed hotel room, Room 30, smoldered.80
In Washington, Kennedy edged toward the dispatch of federal troops, and announced that he would not permit the deal in Birmingham to be unraveled by violence. Slowly, gingerly, calm returned to Birmingham at the point of a gun. Jackie Robinson came to visit and was overcome by emotion, telling a church audience that his own children had asked to come with him and be arrested, too. King closed the campaign with exhortations to optimism and pleas for forgiveness. Project C, launched on Good Friday of 1963 and carried to victory on the backs of more than two thousand children, celebrated its triumph on M
other’s Day.
Warren was an observer to the escalating civil rights struggles of 1963, standing in the wings as Kennedy and King played the central parts. But he continued to contribute from his position, as the Court found ways to reinforce the efforts of the civil rights advocates in the field. From even before the Brown decision in 1954, many of the South’s efforts to contain civil rights activity focused on trying to demonize and criminalize the NAACP. Resistance varied state-by-state, as Southern leaders experimented with ways of eliminating the organization or at least tying it down in litigation. Virginia was among the states that pioneered attacks on the NAACP, and in 1956, it enacted a statute to redefine and expand the definitions of legal malpractice as they related to soliciting clients. When the NAACP’s case challenging that statute reached the Supreme Court, it posed special complications: Virginia had a right, as all conceded, to regulate the legal profession in order to ensure high standards for it, and the law at issue was neutrally written—that is, it did not name the NAACP specifically, though there was no real doubt about who its intended target was. But allowing the statute to stand would have real consequences, about which none were deluded. To allow Virginia to outlaw the NAACP practices was, in effect, to concede defeat on desegregation litigation arising from that state, as no other organization was positioned to take over the effort should the NAACP be driven out.
The case wound its way through the Virginia courts, where the statute was upheld by that state’s Supreme Court. The United States Supreme Court agreed to hear it, and lawyers for the two sides made their first appearances in November 1961, with Robert Carter making yet another trip to the Court to argue on behalf of the NAACP. When the justices first weighed in on the matter, they sided with Virginia, over the objections of Warren, Douglas, Black, and Brennan. Frankfurter wrote for the narrow majority, while Black drafted a dissent.81 Had the case been handed down in the summer of 1962, as the Court was scheduled to do, it would have represented a sobering setback for the NAACP, whose efforts had consistently been defended and appreciated by the Warren Court. Fate intervened, however, with the breakdown of Whittaker and then with Frankfurter’s stroke. That took two votes away from the majority, and the justices agreed to hold the matter over to the following year.
When the Court reconvened the following fall, Brennan immediately went to work on the new justices. He sent each a memo urging them to consider the NAACP’s long and difficult work on behalf of school desegregation in Virginia and he suggested that the Court could find for the NAACP with an opinion that defended its rights of speech and association without having to find that the Virginia legislature was intentionally discriminating against it.82 At the conference, both new justices agreed—Goldberg enthusiastically, White with less vigor—tipping the balance now solidly in favor of the NAACP where just six months earlier it had been on the verge of going the other way. Warren, probably with an eye on the effectiveness of Brennan’s memo, asked him to write for the new majority. Brennan did so with some difficulty, but he managed to hold a fragile coalition together and keep the NAACP in business. “The NAACP is not a conventional political party; but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society,” the Court ruled. “For such a group, association for litigation may be the most effective form of political association.”83 That ruling was handed down one day before the fabled Fortas argument in Gideon.
Thus, by the time King marched in Birmingham, Warren and the Court had been doing what they could to protect King’s movement from extinction for nearly a decade. In the White House, meanwhile, Kennedy resisted King’s early entreaties to take leadership on the issue, worried about its consequences for his political standing among Southern Democrats. After Birmingham, Kennedy chose to go a different way. On June 11, he spoke to the nation about civil rights in terms that King had long urged. For the first time, Kennedy framed the quest for civil rights as a “moral issue” and placed himself and his office squarely behind a civil rights bill that would force integration of public accommodations. With the exception of Bobby Kennedy, the president’s advisers were opposed to the speech, which they worried would commit the administration to a doomed bill.84 Kennedy spoke anyway, and the speech marked a historic moment for his administration and for the cause of racial equality, the same cause that had occupied so much of Earl Warren’s life for the past ten years. The issue, said Kennedy, “is as old as the Scriptures and is as clear as the American Constitution.” Continuing, he added,
The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated. If an American, because his skin is dark, cannot eat lunch in a restaurant open to the public, if he cannot send his children to the best public school available, if he cannot vote for the public officials who represent him, if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed and stand in his place? Who among us would then be content with the counsels of patience and delay?
One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free. They are not yet freed from the bonds of injustice. They are not yet freed from social and economic oppression. And this Nation, for all its hopes and all its boasts, will not be fully free until all its citizens are free.85
Hours after Kennedy finished speaking, an NAACP worker in Mississippi, Medgar Evers, was shot in the back. Evers’s murder, so soon after the elation of Kennedy’s speech, was a terrorizing reminder of the space between a promise and its fulfillment. And yet with Kennedy’s moral and political pledge, the civil rights leadership now could count as allies both the president and the Chief Justice of the United States.
Kennedy’s address to the nation on June 11 was close to his best, but in that summer of great American rhetoric, Kennedy finished second. For despite the pleadings of Kennedy’s administration, King and other civil rights leaders pressed forward with their plans for a March on Washington, and it was there, in the heat and humidity of Washington in August, that Martin Luther King stood on the steps of the Lincoln Memorial, at the feet of the man who had freed America’s slaves, and there riveted the nation. King had written most of his speech, poring over it the night before at the Willard Hotel, where he and Young and others were staying. It evoked, in the language of the pulpit and Scripture, the same message that Earl Warren had delivered in constitutional terms: the demand that America fulfill the promise of its Declaration. To Warren, that promise was one of fairness, and the Constitution was the vessel for its ultimate fulfillment. To King, that promise seemed sadly like “a bad check.”
“It is obvious today that America has defaulted on the promissory note insofar as her citizens of color are concerned,” he said to the hundreds of thousands, black and white, who lined the Washington Mall. “Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check that has come back marked ‘insufficient funds.’ ” Waves of applause and shouts of endorsement wafted up the Mall to where King stood, then approving laughter as he added, “But we refuse to believe that the bank of justice is bankrupt.” Now, King insisted, was the time for democracy to make good on its promises. “Now is the time,” he repeated. As King reached the end of his prepared text, he departed from it to ask those who heard him that day to take their “creative suffering” back home, “knowing that somehow this situation can and will be changed.” Then, the great gospel singer Mahalia Jackson, who stood behind him on the stage, shouted out, “Tell ’em about the dream, Martin.”86
King took flight, and his soaring imagery that afternoon established him as America’s poet of freedom. With Scripture and spirituals, with majesty, King descr
ibed the America of his dream. Its words and cadences were all his own, but in its evocation of the Declaration of Independence, it spoke to Warren’s dream as well. “I have a dream,” King rumbled, “that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’ ”
Warren was vacationing in Greece when King summoned the Declaration with such power. Even from that distance, he was impressed, and he passed along news of the peaceful demonstration to his fellow travelers “with a note of thrill in his voice. . . . He felt it was a great triumph for them [the demonstrators] and for civil rights.”87 At the White House, Kennedy watched on television. He knew something about speech-making. As King spoke, the president turned to an aide and remarked, “He’s damn good.”88
That summer of rising American passions coincided with the tenth anniversary of Warren’s nomination to the Court. No honest observer could deny that the nation was a changed one because of Warren’s tenure. In 1953, segregation was legal and the accepted practice of much of the nation. Exposing Communists for the sake of degradation was a popular pastime in Washington and elsewhere, its wreckage strewn across ruined careers and lives. Police routinely violated the Constitution’s order that they respect the security of home and papers. Five states sent poor defendants to jail without ever giving them the chance to speak with a lawyer. Schools opened their days with prayers and dared children who did not believe to separate themselves from classmates. By 1963, all of that had ended—and without an act of Congress or a presidential decree. It had changed because Warren and his colleagues had determined that a just country required more. The Supreme Court had been pilloried, and Warren had come under particularly personal attack. He had been ignored by the president who put him on the Court. Fanatics wanted him impeached or worse. But by 1963, the crises and isolation of the Eisenhower years had passed and the embrace of the Kennedy administration provided cover and support.