Gideon's Trumpet (6 page)

Because so many men are involved, with the resulting risk of chaos, the discussion follows a quite formal procedure. The Chief Justice begins the consideration of each case by stating the issue and his views. The senior associate, now Justice Black, speaks next, and so on down the line. As presiding officer the Chief Justice shapes the character of the conference, not only by the way he first formulates the issues but by deciding, for example, how long to let debate continue before calling for a vote. Chief Justice Hughes was
regarded by some as the greatest master of the conference. “To see him preside,” wrote Justice Frankfurter, “was like witnessing Toscanini lead an orchestra.” But during the Hughes years Justice Harlan F. Stone complained that the Chief was too firm, too controlling. Then Stone became Chief Justice, and his colleagues protested that the conferences dragged because he was not firm enough.

At the typical conference these days the justices pass on nearly one hundred matters, a formidable number. A little arithmetic will quickly indicate how impossible a burden that would impose if every justice were to talk on every case. Ten years ago, when the docket was significantly shorter than today’s, Justice Jackson figured that the average conference list would permit “five minutes of deliberation per item, or about thirty-three seconds of discussion per item by each of the nine justices.… All that saves the Court from being hopelessly bogged down,” Jackson added, “is that many of these items are so frivolous on mere inspection that no one finds them worthy of discussion, and they are disposed of by unanimous consent.” Each justice, before the weekly conference, sends to the Chief’s Office a list of cases he considers not worthy of discussion; the cases on which all nine are agreed are thereupon passed over at the conference.

Voting in the conference is in inverse order to discussion: the junior justice first. It takes only four votes to grant certiorari or to put an appeal down for oral argument. The theory of having less than a majority grant review is that a case deemed important by as many as four justices is at least worthy of the Court’s consideration; the majority is always free to work its will later, on the merits of the issue presented. (Justice Frankfurter argued that a majority of five should be free, indeed, to dismiss the writ of certiorari as “improvidently granted,” but this view was rejected as
inconsistent with the integrity of the so-called Rule of Four for granting review.) Even when there are fewer than four justices who personally want to take on a case, the necessary four votes may well be obtained by judicial log-rolling. (You vote for my case and I’ll vote for yours.) The outside world does not know how the Court reaches the decision to grant or deny review of a case—or how it reaches any decision at conference, although some of these secrets have been disclosed by the publication of justices’ papers. Most thoughtful persons have concluded that there should be no such publication at least until all participants in the events described have left the Court, lest freedom of discussion at conference be inhibited by the fear of premature disclosure. One member of the present Court was so distressed by the gossip retailed in one judicial biography that he ordered all his own papers burned—to prevent their misuse in the event of his death.

At the conference of June 1, 1962, the Court had before it two jurisdictional statements asking the Court to hear appeals, twenty-six petitions for certiorari on the Appellate Docket, ten paupers’ applications on the Miscellaneous Docket and three petitions for rehearing. (The last are almost never granted.) There were some important cases among these. One was a challenge to the constitutionality of New York’s legislative districts; the justices decided to send this back to a federal court in New York for reconsideration in light of their recent decision, in a Tennessee case, that federal courts could scrutinize state legislative apportionments. Another case arose from the Freedom Rides. Six Negroes had been convicted of breach of the peace for their effort to desegregate a Shreveport, Louisiana, bus terminal. The Court, having read the printed petition and response in this case, decided to grant the petition for review
and then summarily to reverse the convictions for lack of any supporting evidence except the constitutionally impermissible fact that they had violated the custom of segregation. The Kohler Company of Wisconsin was asking the Court to review the finding of the National Labor Relations Board that it had committed unfair labor practices in the bitter dispute, dating back to 1954, with the United Automobile Workers. The justices also considered some of the cases that had been argued earlier in the term and that now were ready for disposition. They discussed some draft opinions. They decided to put down for re-argument next fall the great dispute between Arizona and California over the water of the Colorado River. And, finally, they passed on the handwritten petition for certiorari filed by Clarence Earl Gideon, prisoner No. 003826, Florida State Penitentiary, Raiford, Florida.

The results of the deliberations at this conference were made known to the world shortly after ten
A.M
. the following Monday, June 4th, when a clerk posted on a bulletin board the mimeographed list of the Supreme Court’s orders for that day. One order read:

I
n the Circuit Court of Bay County, Florida, Clarence Earl Gideon had been unable to obtain counsel, but there was no doubt that he could have a lawyer in the Supreme Court of the United States now that it had agreed to hear his case. It is the unvarying practice of the Court to appoint a lawyer for any impoverished prisoner whose petition for review has been granted and who requests counsel.

Appointment by the Supreme Court to represent a poor man is a great honor. For the eminent practitioner who would never, otherwise, dip his fingers into the criminal law it can be an enriching experience, making him think again of the human dimensions of liberty. It may provide
the first, sometimes the only, opportunity for a lawyer in some distant corner of the country to appear before the Supreme Court. It may also require great personal sacrifice. There is no monetary compensation of any kind—only the satisfaction of service. The Court pays the cost of the lawyer’s transportation to Washington and home, and it prints the briefs, but there is no other provision for expenses, not even secretarial help or a hotel room. The lawyer donates that most valuable commodity, his own time.

A remarkable example of an appointed counsel’s conception of his duty, and his dedication in carrying it out, was provided by a Chicago lawyer, Walter T. Fisher. Mr. Fisher was appointed on January 14, 1957, to represent one Alfonse Bartkus, who had been acquitted by a federal jury of robbing a federally-insured bank in Illinois and then had been tried and convicted in the Illinois courts for the same robbery. The Supreme Court had agreed to hear his claim that the successive prosecutions amounted to a kind of double jeopardy barred by the due-process clause of the Fourteenth Amendment. Mr. Fisher wrote a brief, argued the case and lost by a tie vote of four to four, Justice Brennan not sitting. (An equal division results in what is called an affirmance by necessity of the lower-court’s decision.) Mr. Fisher petitioned for rehearing, asking Justice Brennan to sit, and the Court granted the petition. The next term Mr. Fisher wrote a new brief, argued the case again—and lost, five to four. He filed a further petition for rehearing, which was denied. But he did not consider his obligation to Bartkus or to the law ended. He asked the Illinois legislature to take action against what he still considered an injustice, and in 1959 the legislature enacted his proposal: a bill barring state prosecution of any person for a criminal act which had previously been the subject of a federal prosecution.
That legislation, however, did not affect Bartkus, who remained in prison under a life sentence. Mr. Fisher filed a clemency petition, wrote letters, pleaded with the authorities. On January 3, 1961, just short of four years after Mr. Fisher’s appointment by the Supreme Court, Bartkus’s sentence was commuted to time served. Mr. Fisher found Alfonse Bartkus a job and made an arrangement for him to receive continuing guidance.

As a formality, the poor man whose case is to be heard by the Supreme Court must ask for a lawyer. The chief deputy clerk of the Court, Edmund P. Cullinan, sees to it that he does ask. A distinguished gray-haired gentleman who joined the Clerk’s Office while still a student at Georgetown Law School in 1930, and who has become an authority on how to proceed before the Court, Cullinan has the recurrent nightmare that some prisoner will want to argue his own case. (A statue allows anyone—rich or poor, lawyer or layman—to present his own case in any Federal court.) To forestall that possibility he writes promptly to every prisoner whose petition the Court grants. He wrote Gideon the day the Court granted certiorari in his case, June 4. (An assistant clerk, Eugene T. Lyddane, on the same day sent the text of the Court’s order to Gideon and the Attorney General of Florida.) Cullinan’s letter to Gideon said: “I assume that you desire the Court to appoint a competent attorney to represent you in this Court. It will therefore be necessary for you to forward immediately a handwritten motion requesting the Court to appoint counsel to represent you.”

Gideon was duly consistent in wanting a lawyer. On June 18th his answer arrived at the Court, again written in pencil on the lined prison form and stamped “censored.” Gideon said: “I do desire the Court to appoint a competent attorney
to represent me in this Court. Because I do not know the procedure nor do I have the ability to do so. I make this formal request to the Supreme Court of the United States to appoint me a attorney.”

Like other matters decided by the Supreme Court, the choice of a lawyer for an indigent petitioner is entirely in the bosom of the justices. They have never laid out any rules for the selection process, doubtless desiring to retain a broad discretion. In the process, Justice Frankfurter once said, “intrinsic professional competence alone matters.” The Court naturally tends to pick men known to one or more of the justices personally or by reputation. Mr. Fisher, for example, was an old friend of Justice Frankfurter’s, and it is a fair guess that the justice suggested his name. (But friendship is no assurance of a vote; Justice Frankfurter wrote the opinion of the Court rejecting Mr. Fisher’s argument on behalf of Alfonse Bartkus.)

Former law clerks to the justices are often appointed. So are law professors and established practitioners; Dean Acheson was named a few years back to represent a Texas prisoner. The Court frequently names someone from the same area of the country as the prisoner, but that is no rule. In general it can be said that counsel appointed in the paupers’ cases are much superior to the average lawyer who appears in the Supreme Court. The average level, unfortunately, is mediocre at best—reflecting the bar generally, since there is no special group of lawyers who argue in the Supreme Court.

The question of counsel for Gideon was ready for discussion at the Court’s conference of Friday, June 22, 1962. That was the last conference of the term, as it happened; the following Monday the Court handed down all its remaining opinions, including the controversial decision on
the New York Regents’ Prayer, and recessed for the summer. Shortly after the conference ended, Chief Justice Warren called in the Clerk of the Court, John F. Davis. The Clerk is the Court’s ranking employee, and the job is one of distinction. Davis’s predecessor, James R. Browning, is now a judge of the United States Court of Appeals for the Ninth Circuit; and before he was named Clerk in 1961 Davis had argued more than fifty Supreme Court cases for the Government, including the du Pont-General Motors antitrust case. One of the Clerk’s duties is to help with the mechanical arrangements for translating Friday’s conference decisions into the printed and mimeographed orders released the following Monday. When a lawyer is being appointed to represent an indigent, Davis also has the job of informally advising him over the weekend so that he may indicate if he has some personal difficulty that would make it impossible for him to accept the assignment. The Court does not want the mutual embarrassment of having a formal appointment turned down. But the Court’s appointment of counsel in these circumstances is a little like a Presidential invitation to dine: Few are turned down.

On this Friday evening Chief Justice Warren told Davis that the Court had selected Abe Fortas of Washington to represent Gideon. Davis put in a call for Fortas and found him, eventually, in Dallas. Fortas said he would be happy to serve as counsel for Clarence Earl Gideon. He asked what the issue was in Gideon’s case. Briefly, but quite clearly indicating the large stakes, Davis told him: The Court had agreed to reconsider the limits put on the right to counsel by
Betts v. Brady
.