by Jim Newton
We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. We are advised that States can rationally consider factors other than population in apportioning legislative representation. We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.55
Harlan dissented with a thorough and complex work, accompanied by two appendixes. Warren contemplated a reply, but then abandoned the idea at the last minute. Reynolds stood on its own, and it, along with Baker v. Carr, came to be the opinions that Warren valued above all others.56 It was natural that they should. Warren, who believed so deeply in the fundamental principles of American democracy, in its Declaration and in the conviction that its Constitution required fairness, saw the right to vote and the right to have every vote count equally as predicates for the fair society he was helping to build. If the rights and responsibilities of society were to be administered through its government, Warren believed, “it must be done by representatives who are responsible to all the people, not just those with special interests to serve.”57
That conviction first was expressed in Baker, though that was Brennan’s writing. It was reinforced and expanded by Reynolds, this time in Warren’s words. But it was pushed to a limit that demonstrated just how serious Warren was in one of Reynolds’s companion cases, Lucas v. Colorado General Assembly. There, Warren wrote for a Court that not only insisted that voting districts be drawn according to population but also specifically rejected an attempt by the voters of Colorado to draw them otherwise. “An individual’s constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause,” Warren wrote. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”58 In effect, Warren—the old Progressive, still convinced that enlightened leadership acted as ballast against the swings of populist bandwagons—said in Lucas that democracy was so important it could not be curtailed even through the democratic process. Democracy was essential to achieve fairness; fairness could not be subverted, even by democracy.
Warren’s determination in the legislative redistricting cases thrust the Court into its third great battle of his tenure, following the attacks on its decisions regarding segregation and domestic security. This time, the reaction came in the form of a sneak attack. The Council of State Governments met in December 1962 in Chicago and there adopted three resolutions. The first would require the Congress to certify any constitutional amendment passed by two-thirds of the state legislatures; the second proposed creation of a Court of the Union, composed of the chief justice of each state Supreme Court, with the power to override the United States Supreme Court on any matter that asserted rights reserved to the states or people under the Ninth or Tenth Amendment to the Constitution; the third would overrule Baker v. Carr.59 Where other challenges to the Court’s jurisdiction or authority had attracted wide attention, this one passed with little note—except in state legislatures, where elected officials exercised about Baker v. Carr took up the call and quietly passed the proposed amendments. By the spring of 1963, twenty-four states had passed some version of the amendments with barely a whisper of opposition. Warren learned of those developments with alarm, and used a scheduled set of speaking engagements that April and May to draw attention to a threat against his Court and the framework of federal-state relations. Speaking at Duke University on April 27, Warren demanded that the nation’s lawyers take note of the movement: “If lawyers are not to be the watchmen of our Constitution, on whom are we to rely?”60 That drew press attention, as did his reiteration of that call three weeks later at a meeting of the American Law Institute. Warren marshaled his prestige against the proposals, and once exposed to scrutiny, they withered.
The reapportionment decisions were the most momentous of the term, and they placed the Court in its most precarious political debate, but the most contentious disagreement among the brethren occurred elsewhere. In earlier times, Warren would have turned to Black for support in the term’s divisive deliberation, but this time they would part ways, their first significant break over civil rights. The sit-in cases that confronted the United States Supreme Court that term had been working their way to the Court for some time. In the fall of 1963, the Court accepted three new cases: Bell v. Maryland; Barr, Bouie v. City of Columbia, South Carolina; and Robinson v. Florida. Another case, Griffin v. Maryland, had been argued the previous term and held over, so it too was before the justices as they contemplated the balance between the rights of private property and those of equal protection. Each case brought slightly different facts, but all centered on the same basic question: How far could state and local governments go to enforce racial segregation by owners of private facilities? In other words, if a privately owned restaurant refused to seat black customers and the police then assisted in ejecting those customers, had the state lent government support for segregation or merely assisted in the protection of private property from trespass?
On October 18, 1963, in its first conference on the subject, the Court voted in favor of the protesters in two of the cases—Griffin and Bouie, though both were by 5-4 majorities and the Court in neither reached the basic constitutional question of whether private owners could discriminate and rely on the state to enforce their discrimination. In Bell and Robinson, however, the Court was inclined to address that basic question, and in both instances, an equally thin majority rallied behind Black to uphold the rights of private property over those of assembly and protest. In one sense, Black’s position was predictable. He had always drawn a distinction between speech and action, and in his view the actions of the demonstrators exceeded the protections of the First Amendment, at least when they were placed in conflict with the rights of private property holders. Making that point to the brethren, Black drew upon his usual constitutional literalism but this time added a distinctly personal touch: Black’s “Pappy,” he told the justices, had run a little store in Alabama, and Black refused to believe that his Pappy was obligated to serve just anyone; it was his store, his property, and his right to choose who came inside.61 The Court’s more conservative justices, unaccustomed to having Black in their corner, endorsed his view. That gave Black the company of Clark, Harlan, Stewart, and White and placed him at odds with his traditional allies—Warren, Brennan, and Douglas—along with the newly arrived liberal, Goldberg.
It had been months since Birmingham and the March on Washington had convinced Kennedy to introduce his Civil Rights Bill, but that legislation was still before Congress when the Court first took up its five sit-in cases that fall. With Black’s exhortation on property rights and his departed Pappy, he thus placed himself in opposition to the leading civil rights imperative of that year. Brennan and perhaps Warren, apparently swept up in the heat of the discussion, threatened to do all they could to stall the Court’s decisions—a ruling against the protesters, particularly one bearing Black’s prestige, would, they feared, badly hurt chances for passage of the bill.62 Such overt reference to politics is highly unusual inside the Court, and the conservative justices understandably took offense at the threat to gum up pending cases merely to advance a political interest. “The suggestion of delay,” Brennan’s clerks admitted, “caused a certain amount of hard feeling among the Justices.”63 The battle lines thus hardened and remained set through the fall, through the death of Kennedy, and into the New Year. With Warren preoccupied by the reapportionment cases and the assassination commission, it fell to Brennan to lead what was, in effect, a prolonged stall.
The first move was a page taken directly from
Frankfurter’s slowdown of the Brown deliberations. It was to ask for more briefing, in this case in the form of an amicus brief from the federal government. Proof of how testy the discussion had become can be found in the fact that the vote on that relatively benign proposal broke 5-4. Harlan at first joined with those seeking more argument, then reconsidered overnight, undoubtedly having realized that he was being used as part of the delaying tactic.64 The request for reargument passed only because Stewart, who was allied with the conservatives on the basic question, went along with the liberals seeking more information. Then Warren took his time informing the solicitor general, who, soon after receiving it, asked for another extension.65 It did not arrive at the Court until early 1964. When it did, it contained one small but important revelation: Attorneys in that office, in the course of researching Florida’s segregation laws, found one that regulated toilets by race. Because that was clear state action, it provided a basis for reversing the convictions in the Robinson case, and it bought the liberals even more time, since Black had structured his main opinion in the sit-in cases on Robinson and now was forced to retool it around the facts in the Bell case.66
Still, time appeared to be running out for the liberals, as Southern Democrats waged a historic filibuster to block the Civil Rights Bill even in the face of President Johnson’s active support. My mid-March, Brennan had concluded that he could not outlast Black’s forces, but he continued to try to pick off one vote from the other side, since one defection would be enough to change the outcome. As Black circulated drafts through March and April, he was fighting hard to hold on to his five votes—“a scant and scared majority,” as his wife put it to her diary.67 Brennan responded, circulating dissents, trolling for another ally. The debate grew complicated and fierce, until, on May 15, Clark suddenly announced that he was inclined to side with Brennan. Black was shocked and angry. The conference discussion that day was, in the words of the Brennan clerks, “brief and exceedingly tense, with Justices Black and Clark saying virtually nothing.”68 The matter continued even after that, however, as Clark agreed only to join a narrow ruling that passed on the larger constitutional questions; Douglas, typically, wanted broader strokes, so now Douglas threatened to bolt the liberals even as they edged toward victory. That technical debate, made more emotional by the wrangling among the brethren, finally subsided after a final gasp of acrimony.
On Friday, June 19, Congress passed the Civil Rights Act and sent it to Johnson for his signature. It prohibited discrimination in any place of public accommodation, defined in the act as any restaurant, cafeteria, lunchroom, lunch counter, or soda fountain; any hotel or motel; any movie theater or gas station. Three days later, the Court announced its rulings in the sit-in cases; Douglas had already left for the summer; Black now spoke only for himself, Harlan, and White, having lost Clark and even Stewart in the term’s endgame; Brennan delivered the majority opinion in Bell. Johnson signed the act, the most important piece of civil rights legislation in American history, on July 2. “Five votes,” Brennan remarked near the end of the session, “can do anything around here.”69
The sit-in cases were explicitly about civil rights and the Court’s role in protecting that movement against its opponents. The term’s other historic decision also was, at its core, a civil rights case, though its larger impact was on the development of a modern free press. New York Times v. Sullivan began with a fundraising advertisement in the Times that appeared on March 29, 1960, beneath the headline “Heed Their Rising Voices.”70 The ad charged that Negro protesters who engaged in nonviolent resistance to segregation were being met “by an unprecedented wave of terror,” and it asked readers to contribute money to support the student protesters, to assist in securing the right of Negroes to vote, and to help pay the legal defense bills of Martin Luther King, Jr., in a perjury case.71 In the ad, student protesters were said to have sung “My Country, ’Tis of Thee” on the steps of the Alabama state capitol, for which they were allegedly expelled from school. “Truckloads of police” were accused of ringing the Alabama State College campus, and when the students refused to reregister for classes, “their dining hall was padlocked in an attempt to starve them into submission.” “Southern violators” were accused of directing intimidation and violence at King, who, along with his wife and child, had been bombed, assaulted, and arrested seven times, the ad reported.
Many of those statements turned out to be false, though many were trivially so. The students sang the national anthem, not “My Country, ’Tis of Thee.” They were expelled from school, but not for demonstrating at the capitol; their expulsions were for a lunch-counter sit-in. The dining hall was never padlocked, and though large numbers of the police were deployed during the protests, they never “ringed” the campus. King had been arrested only four times, not seven.72 L. B. Sullivan was one of three commissioners of the city of Montgomery, and though his name never appeared in the ad, he filed the libel suit against those whose names appeared on it and against the Times for running it. Sullivan said the ad defamed him because it was widely known that the city commissioners oversaw its police and therefore the ad’s misstatements about police actions could logically be inferred to be about him. As to the accusations against “Southern violators,” he argued that because those charges also included references to police action—King’s arrests—the ad again implied that he was responsible. Sullivan did not show that he had suffered any damage as a result of the ad—one could argue that it only helped his standing in Montgomery in 1960—but Alabama’s juries and courts happily lent their assistance to his campaign against a Northern newspaper in a climate of anger toward “outside agitators.” After a trial in Alabama, the Times was ordered to pay Sullivan $500,000 in damages, an award upheld by the Alabama Supreme Court.
That alone threatened the ability of the Times to cover news in Alabama, and in the weeks following it, others piled on. By the time the case had reached the United States Supreme Court, in 1964, there were eleven pending libel cases against the paper in Alabama alone, seeking a combined $5.6 million.73 Few doubted who would win those cases in Alabama courtrooms. The effect on the Times was potentially devastating; while New York Times v. Sullivan was pending, the paper pulled its reporters out of Alabama, achieving precisely what the state had hoped—an end to national attention to its racial policies, at least in the pages of the Times, and a portent of diminished coverage by other national news organizations.74 What’s more, the Times was not the only defendant in the case. Ralph Abernathy, who helped pay for the ad, was sued as well, along with three other civil rights leaders. Their personal financial security was at stake, and the movement depended on drawing attention to its suffering in order to change minds. If innocent mistakes, as interpreted by hostile Southern juries, would be enough to shut down coverage, then the movement itself was in peril.
It was that threat, more than sympathy for the newspaper, that captured Warren’s interest and attention. By 1964, he had spent a full decade confronting Southern authorities as they attempted to shut down dissent. He had led the Court through years of keeping the NAACP in the fray, and certainly he would not fold his cards now. The New York Times case was argued on January 6, 1964, and Warren, then less than a month away from beginning to take testimony for the President’s Assassination Commission, looked to hand it off. Warren turned, as he so often did, to Brennan. For three months, Brennan circulated drafts, trying to articulate a rationale that would dismiss the lawsuit against the Times and the other defendants while holding open the possibility that a future public official, confronted with more egregiously bad reporting, might be able to bring and win a libel suit. Through his seven drafts, Brennan settled on the idea of “actual malice” as the relevant standard, meaning that public officials could recover libel damages from news organizations only if the reports about them were not just false but also willfully or recklessly malicious.75 Stories or advertisements about public officials conducting public business could be false and they could be defamat
ory, and the defendants could still be protected from lawsuits if those false and defamatory statements were innocently made.
“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice,’ ” Brennan wrote, “that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”76 That language set the new standard simply by declaring it, and what the Court did next helped make clear its main objective: to shut down this litigation and others of its type. Rather than send the case back for a new trial in order to determine whether Sullivan could show that the Times and the civil rights leaders had in fact acted with “actual malice,” Brennan established the new standard and then simply declared that Sullivan could not meet it. “Since respondent may seek a new trial,” he wrote, “we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment for respondent.”77 The Court was not naïve; it well knew what the outcome of a new trial would be. There would be another judgment for Sullivan, upheld again in Alabama’s courts, and more years of delay and squelched dissent. So the Court ended the case while it could, freeing the Times to return to reporting and the civil rights leaders to resume their work, the work blessed and encouraged by the United States Supreme Court.
New York Times v. Sullivan freed the press to pursue its momentous coverage of the civil rights movement and greatly strengthened national debate in other areas as well. It was, one scholar noted, “an occasion for dancing in the streets.”78 Over time, some cracks in its edifice undermined that early euphoria. By relying on malice as a standard, the ruling allowed plaintiffs latitude to explore the motives of reporters and editors, an intrusion into newsgathering that press organizations would come to lament. It also sanctioned substandard reporting, as it allowed news organizations to make mistakes without legal consequence, a zone of protection that would be expanded in later rulings, that the press would too often exploit, and that even its defenders would have difficulty defending. Edward Bennett Williams represented the Washington Post. He worshipped Earl Warren and cherished their friendship. But even Williams worried about New York Times v. Sullivan. When a judge complained to him that the opinion gave the press a “license to lie,” Williams responded, “That’s right.”79