Gideon's Trumpet (11 page)

The very legitimacy of judicial review has been questioned repeatedly from the time the Supreme Court first held a federal statute unconstitutional, in
Marbury v. Madison
in 1803. The Jeffersonians accused John Marshall of usurpation. Liberals said the same of the Court in the 1930’s, and revisionist historians of that day tried to prove that it really had not been given the power of judicial review. Today the epithets come from extremists of the right, disaffected by the Court’s decisions on individual liberty and racial equality.

Scholarly opinion has long since dismissed the charge that judicial review was illicitly imported into our system by John Marshall or anyone else. The Constitution does not explicitly provide for its enforcement by the federal courts, but the text—including the grant of jurisdiction over cases arising under the Constitution—indicates that expectation. The records of the Philadelphia Convention of 1787 point the same way; at least a substantial number of the delegates assumed that the Supreme Court would pass on the constitutionality of state and federal acts that came before it in lawsuits. The delegates, in fact, considered a proposal to go further and have the Court share the President’s veto power in a Council of Revision, but that suggestion was rejected
on the ground that the Court already had a “sufficient check” by its power to declare laws unconstitutional. The very conception of a written constitution binding on governments as well as citizens, the great American contribution to political history, presupposed some institution to enforce the rules. Theoretically that could have been Congress, but the episodic and political nature of the legislative process would have made that choice doubtful. In fact we have lived for one hundred and seventy-five years with the Supreme Court as the final interpreter of our fundamental law, and our whole system of government is now built on that assumption. Justice Jackson, no starry-eyed admirer of judicial review, wrote in 1954: “The real strength of the position of the Court is probably in its indispensability to government under a written Constitution. It is difficult to see how the provisions of a one-hundred-and-fifty-year-old written document can have much vitality if there is not some permanent institution to translate them into current commands.…”

But if the issue of legitimacy is foreclosed, there remain very live questions of when and how the Supreme Court should exercise its great power to nullify what other branches of government have done. These questions have been the subject of a fierce and unending debate among commentators and among the justices themselves. The opposing positions can best be summarized in terms of the two uncommonly able and determined justices who led the debate for a generation, Felix Frankfurter and Hugo L. Black.

Justice Frankfurter’s motto was “judicial self-restraint.” He counseled judges to defer to Congress and the states, even where their actions seemed unwise; to be cautious in reading prohibitions into the Constitution; to respect history;
to balance against the interest of the individual the interest of society. Justice Frankfurter warned that relying too much on judges to protect our freedoms sapped the strength of democracy by distracting attention from the political forum where unwise policies should be corrected. He felt the Court was often less equipped to deal with a problem than expert administrators or politicians closer to the public will. He was motivated also by a deep concern for the Supreme Court as an institution, a fear that it might destroy itself if it pressed its power too far. He and others remembered the 1930’s, when a self-willed Court tried to stand against history by stopping urgent economic and social measures and thus brought itself to the brink of drastic reform—reform which it avoided only by a political change of course. Not that Justice Frankfurter never found state or federal action unconstitutional. His vote to invalidate school segregation, his concern for the freedom of commerce from state barriers, and his careful scrutiny of police behavior and of state assistance to religion all testify to his acceptance of the Court’s role as enforcer of the Constitution. But right up to his retirement in 1962 his opinions preached judicial caution, self-examination and restraint. Since then his restraining role has been carried on by others, especially his friend Justice John Marshall Harlan, who in a notable speech in 1963 criticized what he called the “cosmic” view of the judicial function—the idea “that all deficiencies in our society which have failed of correction by other means should find a cure in the courts.”

Justice Black, by contrast, has emphasized the duty of judges to preserve individual liberty, and has argued that excessive deference to other branches of government amounts to abdication of that responsibility. In the Black view, the framers of the Constitution made the decision to
protect individuals from governmental repression, so a judge should not feel timid or self-conscious about doing so. Particularly obnoxious to Justice Black is the Frankfurter thesis that the Court must balance individual interests against the needs of government and uphold any reasonable governmental course of action. Justice Black argues that this weighing and balancing of what is reasonable leaves judges too much at large. He looks to history and finds definite rules in the Constitution—“absolutes,” as he has called them. His favorite example is the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.…” To Justice Black, as he has put it, “no law means
no law.”
Thus he has gone much farther in finding violations of the First Amendment than almost any other justice, past or present. He has argued, in dissent, that no government has the power to censor obscenity. And he has repeatedly dissented from decisions upholding federal action against the Communist party and its members, decisions in which the majority found the injury to free speech outbalanced by the need of society to protect itself against an international conspiracy.

Sometimes the debate between Justices Black and Frankfurter, or between the schools of thought they represent, has seemed abstract—more words than real ideas. No one, not even a Supreme Court justice, is always perfectly logical in applying his own theories, so it is dangerous to build too many expectations on stated judicial philosophies. Justice Frankfurter, for example, was willing when Justice Black was not to strike down wiretapping as unconstitutional and to forbid the use of state funds for parochial-school buses. But for purposes of the Gideon case the general difference
in the Black and Frankfurter approaches was a relevant, inescapable consideration.

As Abe Fortas began to think about the case in the summer of 1962, before Justice Frankfurter’s retirement, it was clear to him that overruling
Betts v. Brady
would not come easily to Justice Frankfurter or others of his view. This was true not only because of their judicial philosophy in general, but because of the way they had applied it on specific matters. One of these was the question of precedent.

“In most matters it is more important that the applicable rule of law be settled than that it be settled right.” Justice Brandeis thus succinctly stated the basic reason for
stare decisis
, the judicial doctrine of following precedents. In literal translation the Latin words mean “to stand by what has been decided.” Anglo-American law is built on the expectation that courts generally will follow what they have said in the past; on that assumption contracts are signed, wills made, lives planned. But
stare decisis
is not an iron rule in the courts of this country, as it is in England. Justice Brandeis went on:

“But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning.”

While constitutional cases do present the special considerations mentioned by Brandeis, the Court has not in fact restricted to that area its willingness to re-examine past decisions. More than almost any court it looks beneath precedents for the policy they represent. It might be said to be minding the caustic words of Justice Holmes: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Approximately one hundred times in its history the Supreme Court has overruled a prior decision. That is often enough, but overruling has not by any means become a routine step, to be taken casually. Certainty and repose in the law still have their appeal. Changes of mind on the part of the Court have been met by strong dissent—by, among others, Justice Frankfurter.

Justice Frankfurter joined in the most famous of recent overruling cases, the School Segregation decision of 1954, which abandoned the separate-but-equal doctrine laid down in 1896. He was not, therefore, unyieldingly attached to the doctrine of
stare decisis
. But his instinct was to give great weight to the demands of continuity with the past in the law. A 1958 law-review study showed that Justice Frankfurter had dissented thirteen times from decisions overruling prior cases. Abe Fortas would have to produce compelling reasons to overcome the respect for precedent felt by Justice Frankfurter and others sharing his view. Justice Black, by contrast, felt much freer to turn from past doctrine. In 1958, for example, he unhesitatingly urged the Court—in dissent—to abandon one hundred and fifty years of decisions holding that jury trials were not required in prosecutions for contempt of court. He was unlikely to feel bound by what he considered an erroneous past interpretation of the Constitution.

Another issue between Justices Black and Frankfurter cut even deeper than
stare decisis
, and closer to Gideon’s case. This was their attitude toward federalism—the independence of the states in our federal system of government.

The relationship of the Federal Government to the states
was a central concern of the men who wrote the Constitution. They created a remarkable political structure which made Americans subject to two sovereignties, state and nation. To the states was reserved power over the ordinary affairs of men as they appeared in the Eighteenth Century—birth, marriage, death, business, crime. To the Federal Government went control over interstate commerce, foreign relations, war and other matters necessarily of national scope. By thus dividing governmental power the framers sought to lessen the dangers of centralized authority, which they had seen become tyranny in the hands of English kings. They also succeeded in giving us what John Quincy Adams called “the most complicated government on the face of the earth.”

Sorting out the complications has been the job of the Supreme Court. From the beginning the Court has been faced with lawsuits requiring it to draw the boundaries of power between state and nation. At first the great cases tended to raise questions of the extent of the Federal Government’s power. Did the Constitution authorize Congress to charter a bank? That was the question Marshall decided in 1819, in
McCulloch v. Maryland
, and his answer in favor of the Federal Government permanently enlarged its domain.

In the Twentieth Century events have transformed the federal-state issues that come before the Court. The growth of a national economy and the emergence of the United States as a world power have inevitably made us more a nation, and have necessarily increased federal authority. The Supreme Court tried for a time to stand against that current, holding in New Deal days that Congress had no power under the Constitution to deal with the economic crisis in the country’s coal mines or farms, but in 1937 it gave up that attempt.

The main arena of controversy today is not the extent of Congressional power but the limitations placed by the Constitution on state governmental action. State officials use the phrase “states’ rights.” By that they mean the right to handle such matters as race relations and the criminal law as they wish, without restraint by the Federal Constitution. The imposing of restraints on state action has evoked great resentment on the part of many state officials, judges not least. In 1958 the Conference of (State) Chief Justices approved a committee report excoriating the Supreme Court for what was termed an “overall tendency” to “press the extension of federal power and press it rapidly.” The report did not deal with the issue of racial segregation, although many thought that was its real inspiration. It put major critical emphasis on Supreme Court decisions laying down minimal guarantees of fairness in criminal proceedings.

The chief justices’ report was no scholarly contribution to the debate about the role of the Supreme Court. It passed over significant areas in which the modern Court has significantly enlarged state power, notably the power to tax and regulate the economy. But it did indicate how much emotion may arise over issues of federalism—and most interestingly, in relation to Gideon’s case, over the right of the states to run their criminal law without worrying about uniform national standards. For Gideon was asking the Supreme Court to impose on the fifty states a uniform rule of criminal procedure, the universal requirement that counsel be supplied to poor criminal defendants. And that claim inevitably clashed with the belief that diversity among the states was as important a theme in the Constitution as individual rights—a belief held by, among others, Felix Frankfurter.

“Whatever inconveniences and embarrassments may be involved,” Justice Frankfurter wrote in 1958, “they are the price we pay for our federalism, for having our people amenable to—as well as served and protected by—two governments.” As a strong believer in the independence of the states, Justice Frankfurter was reluctant to impose new restraints on them even in the name of individual liberty. Justice Black was always much readier to cut through the duality and enlarge protections for the individual against any government.