Gideon's Trumpet (2 page)

“Asserted denial [of due process of law] is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations,
fall short of such denial. In the application of such a concept there is always the danger of falling into the habit of formulating the guarantee into a set of hard and fast rules the application of which in a given case may be to ignore the qualifying factors.…”

Later cases had refined the rule of
Betts v. Brady
. To prove that he was denied “fundamental fairness” because he had no counsel, the poor man had to show that he was the victim of what the Court called “special circumstances.” Those might be his own illiteracy, ignorance, youth, or mental illness, the complexity of the charge against him or the conduct of the prosecutor or judge at the trial.

But Gideon did not claim any “special circumstances.” His petition made not the slightest attempt to come within the sophisticated rule of
Betts v. Brady
. Indeed, there was nothing to indicate he had ever heard of the case or its principle. From the day he was tried Gideon had had one idea: That under the Constitution of the United States he, a poor man, was flatly entitled to have a lawyer provided to help in his defense.

Gideon was tried on August 4, 1961, in the Circuit Court of the Fourteenth Judicial Circuit of Florida, in and for Bay County, before Judge Robert L. McCrary, Jr. The trial transcript begins as follows:

Gideon was wrong, of course. The United States Supreme Court had not said he was entitled to counsel; in
Betts v. Brady
and succeeding cases it had said quite the opposite. But that did not necessarily make Gideon’s petition futile, for the Supreme Court never speaks with absolute finality when it interprets the Constitution. From time to time—with due solemnity, and after much searching of conscience—the Court has overruled its own decisions. Although he did not know it, Clarence Earl Gideon was calling for one of those great occasions in legal history. He was asking the Supreme Court to change its mind.

T
he Supreme Court of the United States is different from all other courts, past and present. It decides fundamental social and political questions that would never be put to judges in other countries—the boundaries between church and state, the relations between the white and Negro races, the powers of the national legislature and executive. One could easily forget that it is a court at all. Its public image seems sometimes to be less that of a court than of an extraordinarily powerful demigod sitting on a remote throne and letting loose constitutional thunderbolts whenever it sees a wrong crying for correction.

But the Supreme Court is not a demigod, nor even a roving inspector general with a conscience. It is a court,
and for all its power it must operate in significant respects as courts have always operated. It cannot, like a legislature or governor or President, initiate measures to cure the ills it perceives. It is, as Justice Robert H. Jackson said, “a substantially passive instrument, to be moved only by the initiative of litigants.” In short, the Court must sit and wait for issues to be presented to it in lawsuits.

And not every issue, nor every lawsuit, can come to the Supreme Court of the United States. Its jurisdiction—the reach of the Court’s power—is limited by the Constitution itself, by statutes and by the Court’s own precedents. The first question in the case of
Gideon v. Cochran
, as in any case brought to the Supreme Court, was whether it was within the Court’s jurisdiction.

The Constitution defines and limits “the judicial Power of the United States” in Article III. Taking only the most important clauses, the article provides that the jurisdiction of federal courts may extend (subject in most instances to the wish of Congress) to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made …; to all Cases of Admiralty and maritime Jurisdiction;… to Controversies between two or more States;… [and] between Citizens of different States.…” Volumes have been written on the meaning of those brief phrases, and great cases litigated over them. When, for instance, can a legal dispute be said to “arise under” the Constitution? But such intricate questions may be put aside for some generalities.

An Englishman or a Frenchman lives under one national law; not so the American. Our Constitution created a system of dual governments, state and federal, each with its own laws. To take a simple example: A New Yorker must fill out an income-tax return whose intricacies are written
by Congressmen in Washington; he also has to fill out an annoyingly different New York State return drafted by legislators in Albany. This is the kind of civil statute that concerns most citizens. On the criminal side, take the case of a car thief. He breaks the law of New York when he drives away a Chrysler parked on East Eighty-seventh Street, Manhattan, with the key conveniently left in the ignition; if he drives across the George Washington Bridge to New Jersey, he also violates a federal law against interstate transportation of stolen vehicles.

Most of the law under which an American lives is the law of his state. His marriage, his property, his will are all governed by state law. If he gets into a lawsuit about a business contract or a real estate deal or an automobile accident, the result will ordinarily be determined by state law—law laid down in state and local statutes and by the decisions of state courts.

Cases of this kind, which are brought by the hundreds of thousands in the United States every year, are almost all tried by state courts. They can get into the federal courts only in one circumstance—if they are suits between citizens of different states. This diversity-of-citizenship jurisdiction of the federal courts, as it is called, was included in Article III of the Constitution to protect out-of-state litigants from prejudice in the local courts: The Vermonter involved in a lawsuit in South Carolina could hope for more impartial justice from a federal judge. But in diversity-of-citizenship cases federal courts must apply state statutes and state decisions; if state courts have held that a certain kind of oral contract is binding, the federal judge hearing a diversity case on that issue must follow the same rule, no matter how wrong-headed it may seem to him. The Supreme Court so held in 1938, brusquely overruling a hundred-year-old precedent
that allowed federal courts to ignore state-court decisions in diversity cases.

On the pervasive issues of state law the Supreme Court has absolutely no power to revise the decisions of state courts. When the Supreme Judicial Court of Massachusetts rules that an automobile driver was negligent, he has no recourse on that issue in the Supreme Court of the United States. The same is true of most rulings in most criminal cases. A state court’s decision of a claim that certain evidence was inadmissible as hearsay is not reviewable in the Supreme Court. Thus the Supreme Court never has anything to do with the vast majority of cases decided every year by courts across the country. Of the more than 10,000,000 cases tried in American courts every year, no more than 300,000 are appealed at all, and only 2,500 or so are taken to the Supreme Court.

The decisions which the Supreme Court can and does re-examine are those involving questions of
federal
law. The question might be the meaning of a Congressional statute—whether, for example, the Taft-Hartley Law permits a union to picket in a certain way. It might be a question of the right of an injured seaman or railroad worker to recover damages under federal statutes that protect these occupations because they are in maritime and interstate commerce. It might be a treaty question: Does an agreement with Canada to protect a species of migratory birds override a state game law declaring open season on them? Or, not least, it might be a question arising under the Constitution—whether, for example, a man had been convicted of crime in a trial so unfair that it could not be called “due process of law.” That was Gideon’s case.

The Gideon case illuminates a curious and vital aspect of the American legal system. This is that many issues of
federal law arise in the state courts. If all questions of federal law were confined to federal courts, life would be simpler for law students and judges. But it is easy to see that they cannot be so confined. When a state judge is asked by a struck company to enjoin the union’s picketing, the union lawyer will doubtless argue that federal law—the Taft-Hartley Act—forbids a state-court injunction; then the judge has to become for the moment an expert on federal legislation. When Clarence Earl Gideon stood up and said that the Constitution entitled him to a lawyer, the trial judge in Panama City and then the Supreme Court of Florida had to pass on his federal claim.

When state courts decide issues of federal law, the Supreme Court has power to review their decisions. But that power was not always taken for granted. It was, in fact, one of the first great issues of federal-state conflict in this country. Some states and their courts, arguing from what today would be called a states’-rights position, bitterly resisted such review by the Supreme Court as an intrusion on their independence.

The Constitution made clear that federal law, within its sphere, was superior to state law and had to be applied by state courts. Article VI provided: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The states’-rights argument was that the highest court of each state should be relied upon to interpret and apply the federal Constitution, laws and treaties, free of any supervision by national authority. The First Congress thought otherwise; one of the very first statutes it enacted, the Judiciary Act of
1789, explicitly gave the Supreme Court of the United States (which did not yet exist) jurisdiction to review state-court decisions on federal questions. But still there was resistance.

The issue came to a head in 1816, in the great case of
Martin v. Hunter’s Lessee
. The dispute was basically about the ownership of lands in Virginia, but it turned on whether title was determined by an old Virginia statute or by the Jay Treaty of 1794 between the United States and Britain. The Virginia court said the state statute ruled. The Supreme Court reversed that judgment, saying the treaty must prevail. The Virginia court then simply refused to comply. Under the bitter leadership of its presiding judge—Spencer Roane, a friend of Jefferson and like him an implacable enemy of their fellow Virginian, John Marshall, the great Chief Justice of the United States—the Virginia Court of Appeals unanimously resolved “that the appellate power of the Supreme Court of the United States does not extend to this court.…”