Gideon's Trumpet (3 page)

When that resistant decision was taken to the Supreme Court, Chief Justice Marshall did not sit; he had a claim to some of the lands in dispute. The opinion of the Court was written by Justice Joseph Story, first in a line of Massachusetts scholars (he continued to lecture at Harvard while a justice) to serve on the Supreme Court, who was just thirty-two years old when appointed in 1811. Justice Story, for a unanimous bench, reaffirmed the constitutionality of the Supreme Court’s jurisdiction over state-court decisions on issues of federal law. His opinion dipped deep into governmental philosophy to answer the states’-right argument.

“A motive perfectly compatible with the most sincere respect for state tribunals,” Justice Story wrote, “might induce the grant of appellate power over their decisions. That motive
is the importance, and even necessity, of
uniformity
of decisions throughout the whole United States, upon all subjects within the purview of the Constitution.

“Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the Constitution itself; if there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties and the Constitution of the United States would be different in different states and might, perhaps, never have precisely the same construction, obligation or efficacy in any two states.

“The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they would have escaped the enlightened convention which formed the Constitution. What, indeed, might then have been only prophecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils.…”

It is no exaggeration to call the decision in
Martin v. Hunter’s Lessee
an essential ingredient in the survival of the United States as a nation. For what was still to a large extent prophecy when Justice Story wrote in 1816 has since become fact many times: The states and their courts have interpreted the federal Constitution and laws in different ways, jarring and discordant, and it has required the Supreme Court of the United States to harmonize the decisions into uniformity. Again and again there have arisen those who would challenge the Court’s power to interpret and apply to every state and every section “the supreme Law of the Land”; for examples one need look no farther back than Oxford, Mississippi, and Little Rock, Arkansas. Without that unifying judicial power it is doubtful that a
great federal union could have been created on this continent, and preserved.

All this discussion is by way of indicating that so abstract-seeming a question as the jurisdiction of the Supreme Court may involve great issues of policy and power in the real world. For the purposes of Gideon’s case, history had settled the question. There were still many evidences of resentment, on the part of state judges and other officials, of Supreme Court review, especially in criminal cases such as Gideon’s. But the case was unquestionably within one of the constitutional categories of Supreme Court jurisdiction. The Court had power under the Constitution to review the Florida judgments that kept Gideon in prison.

But that was only the first of many obstacles that Gideon had to overcome. Over the years other limits on the Court’s jurisdiction have been developed, by Congress and the Court itself, with the aim in part of minimizing state objections to Supreme Court scrutiny.

One statute provides that the only state-court decisions reviewable in the Supreme Court are “final judgments or decrees rendered by the highest court of a State in which a decision could be had.” The purpose behind this requirement is evident. Proper respect for the judicial system of a state demands that it be allowed to complete its processing of a case before the federal Supreme Court steps in; intervention from Washington is not justified to correct some preliminary ruling, or one that may still be reversed by higher state courts. It should be noted that the “highest court” rule does not prevent the Supreme Court from reaching down to the bottom rung of a state judicial ladder when that is the highest level at which a decision “could be had.” In 1960 the Court reviewed a judgment of the Police Court of Louisville, Kentucky, imposing two ten-dollar fines
on one Sam Thompson. “Shuffling Sam,” as the newspapers called him, had been convicted of loitering and disorderly conduct after the police found him shuffling in a café. Under Kentucky law, fines under twenty dollars could not be appealed to any state court, so Sam Thompson’s lawyer went directly to the Supreme Court of the United States. There the convictions were found unconstitutional—in violation of the Fourteenth Amendment’s due-process guarantee—because there was absolutely no evidence to support them.

A person with a federal claim on which he may eventually want the Supreme Court to pass must raise that claim at the earliest possible moment in a state court proceeding. The Supreme Court, again in deference to the states, will not consider federal issues injected into a lawsuit as an afterthought or as a desperate measure by someone defeated on the battlefield of state law. But if a state appellate court agrees to hear, and actually decides, a federal claim raised late, then the state has in effect waived any objection to tardiness and the rule does not apply.

Finally, among these requirements designed to pay proper respect to state judicial systems, there is the rule that the person with a federal claim must follow procedures generally applicable in the state courts. If he filed his state appeal two weeks after the deadline and the state supreme court threw his case out for that reason, it does not matter how compelling his basic argument on federal law may be; the Supreme Court will not hear it. Once more there is a logical exception to the rule: If a state court applies its procedural requirements in a way that discriminates against parties claiming federal rights, an alleged procedural flaw will not be permitted to bar review in the Supreme Court. The Alabama Supreme Court dismissed an appeal by the
National Association for the Advancement of Colored People on the ground that the N.A.A.C.P. had used the wrong form of writ. But the United States Supreme Court found that the Alabama judges had never applied such a rule before and had evidently devised it just for the N.A.A.C.P.; the Court put aside the Alabama findings and took jurisdiction of the case. State courts, said Justice Holmes in 1924, may not in their procedural rulings set “springes” for federal rights.

When someone asserts that an action of government, state or federal, violates the Constitution, he faces further barriers to Supreme Court review. These have been erected over the years by the Court itself, out of a recognition that it is a grave step to invoke the Constitution against government officials—one not to be taken lightly—and that the Court has occasionally got itself into deep difficulty by venturing too hastily into constitutional decisions. Chief Justice Taney’s opinion in the Dred Scott case, holding that Congress had no power to prohibit slavery in new territories, brought the severest criticism on the Court and hurt its reputation for years; Chief Justice Hughes called it a “self-inflicted wound” because the issue need not have been decided at all.

“The most important thing we do is not doing,” Justice Louis D. Brandeis used to say, expressing his almost Puritan resistance to the temptation of making great constitutional decisions. It is to avoid premature or unnecessary invocation of the Constitution that the Court has developed rules of self-control—“for its own governance,” Justice Brandeis said, adding that under these precepts the Court had “avoided passing upon a large part of all the constitutional questions pressed upon it for decision.”

One concept, found in the law generally but applied with
special care by the Supreme Court in constitutional cases, is “standing.” This means that the party complaining of some action in a lawsuit must show that he was personally injured or affected by it. If Tom assaults Dick, Harry has no standing to sue Tom for damages. A well-meaning citizen in Panama City, Florida, charged with no crime himself, could not bring a suit to make the state appoint counsel for Clarence Earl Gideon. A noted decision on standing arose from Connecticut’s birth-control law, making it a crime to use contraceptives. The Supreme Court threw out a Connecticut doctor’s claim that the law deprived his patients of their constitutional rights, holding that the doctor had no standing to assert the patients’ rights. Years later some Connecticut women in medical need of contraceptives themselves sued, but then a divided Supreme Court invoked another doctrine to dismiss the case. The women had sued to have the law declared unconstitutional rather than waiting to be subjected to a criminal prosecution for using contraceptives. In those circumstances, the Court said, there was no sign that Connecticut would actually enforce the archaic birth-control law and the Court should not decide so new and delicate a constitutional question.

If there is any other way to resolve a case, the Court makes it a practice to avoid constitutional issues, no matter how strongly pressed. At the height of Federal Government’s loyalty-security program, the dismissal of those who were alleged to be security risks on the basis of secret charges by unnamed informants was attacked as unconstitutional in the Supreme Court. Both the Government and lawyers for the dismissed employee who had brought the case urged the Court to decide the basic constitutional issue; but a majority of the justices declined to do so, finding instead that the dismissal was invalid because Government
officials had violated their own regulations. Ten years later the constitutionality of security dismissals on undisclosed charges has still not been settled, and it may never be. The rule, in Brandeis’s language, is that the Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.”

The Court has made it a practice not to give advisory opinions, even to Presidents. (Washington sought one and was turned down by the justices.) Nor will the Court ordinarily decide “feigned cases,” got up by friends just to obtain an interpretation of the Constitution. Ours is an adversary system of justice, and its assumption is that the truth is best brought out in a genuine lawsuit between genuinely opposing parties. Brandeis said: “The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.”

Gideon’s case appeared to meet all these requirements. He had certainly raised his federal claim, that the Constitution entitled him to a lawyer, at the earliest possible moment—when his case was called for trial. He had not appealed his conviction, and in some states that would have been a fatal procedural error. But in Florida a prisoner may challenge the constitutionality of his conviction by petitioning the state supreme court to issue a writ of habeas corpus. Gideon had done just that, stating his constitutional claim for counsel again in the petition, and the Florida Supreme Court had presumably passed on and rejected the claim when it summarily denied his petition. Its judgment was final, and therefore ripe for review in the United States Supreme Court. Since this was a criminal case, such
problems as standing did not arise; a man who has been sent to jail in a manner he terms illegal certainly has been injured, and his case is not feigned or advisory or premature.

The claim that Gideon presented to the Supreme Court was, in sum, one that the Court
could
hear. Whether the Court
would
hear it was another and very different question.

If the Court were required to hear every case that a nation of one hundred and eighty million litigious people could contrive to bring within its jurisdiction, the judicial process would quickly break down. Chief Justice Charles Evans Hughes explained in 1937:

“No single court of last resort, whatever the number of judges, could dispose of all the cases which arise in this vast country and which litigants would seek to bring up if the right of appeal were unrestricted.”

Hughes wrote this in a letter to Senator Burton K. Wheeler that was instrumental in defeating President Franklin Roosevelt’s plan to pack the Court. The President wanted to add a justice for each member of the Court over seventy years old—six at the time. Everyone knew his real reason was that he disapproved of the judicial philosophy of the 1937 Court, but he gave the explanation that the older judges needed help to turn out their work. In addition to showing that the Court was well up on its work, the Hughes letter devastated the argument that more judges would, as he put it, “promote the efficiency of the Court.” To the contrary, he noted, “there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” (Writing of the same problem of collective judging exactly a hundred years earlier, when there were eight Supreme Court justices, Justice
Story said: “I verily believe, if there were twelve judges, we should do no business at all, or at least very little.”) An efficiency expert would doubtless recommend that the Court sit in panels of three instead of all nine in every case. Dealing with that idea, Hughes remarked that the Constitution speaks of “one supreme Court” and concluded—some thought he was giving an advisory opinion—that “the Constitution does not appear to authorize two or more Supreme Courts or two or more parts of a Supreme Court functioning as separate courts.” In any case, whether constitutionally permissible or not, it seems most unlikely that the country would tolerate having the decisions of so final and powerful a judicial body depend on which three justices happened to sit in each case.

And so, to let our one Supreme Court perform its great functions, a method had to be devised to reduce the burden of incoming cases. The problem became acute in the early years of this century, when the Court found itself falling farther and farther behind in its docket. The justices were being buried in trivia, and important cases were being reached years after they were filed. The Court itself, through a committee of justices, drafted a legislative solution, and Congress enacted it into law as the Judges’ Bill of 1925. The solution was simply to make the Court’s jurisdiction to a large extent discretionary, with the justices free to choose which cases they would hear among those admittedly within their judicial reach. For the litigant, a new phase was added to the process of obtaining a Supreme Court decision on his case: He first had to persuade the Court to hear the case at all.