Justice for All (98 page)

Marshall's arrival lightened the Court and contributed to its happy relations. Its civility, however, masked troubling portents. Warren, Douglas, and Black all were aging. Douglas had a pacemaker. As the Court's 1967 term drew toward its conclusion in the summer of 1968, Elizabeth Black feared that all three might soon leave, ending in one dash their historic collaboration.
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Outside, the nation was rumbling with rising crime and the Vietnam War, whose ramifications were rapidly overtaking the Johnson administration's domestic agenda.

Vietnam had become Johnson's singular preoccupation—it was the “center of our concerns,” he announced during his 1966 State of the Union address.
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Over the next year, public support for the conflict wobbled, then plummeted as America's entanglement deepened in lives as well as treasure. A July 1967 Gallup poll found that only one third of Americans believed that the nation was making progress in fighting the war. More than half disapproved of Johnson's handling of it, the worst rating he had yet received on the war.
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By the end of 1967, an increase of 100,000 American soldiers in Vietnam brought the overall American presence to nearly half a million; nearly 20,000 had died on Vietnam's battlefields—and 1968 would produce more American casualties than any other year of the war—lives lost in a struggle that many Americans, perhaps even most, did not understand.
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Warren was not among those who had lost faith. A patriot, he was as convinced in 1967 as he was in 1925 that Communism was cruel and dangerous. He did not, to be sure, accept that legislative hunts were the way to protect America, but he readily believed that American interests abroad were real and worth defending against ideological enemies. Moreover, Warren had confidence in Johnson: “He's working hard on Viet Nam and has been for a long time, and he knows the answers for it,” Warren told Pearson in 1966. “He will find some way out.”
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As that year ground on and with it the war, Warren had hoped for a peace to be struck in the fall, in time to influence that year's national elections. Such a victory, Warren told Pearson, “would be wonderful.”
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When that did not occur, when the casualties continued to mount and the stakes for the Johnson administration rose, Warren, along with many other supporters of the war, began to lose patience with those who protested against it. Twelve years earlier, Warren had expressed his concern for the rights of protest in wartime—“Periods of domestic dissension and of foreign war are especially liable to produce tendencies to disregard established rights in the name of national safety,” he warned in 1955.
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But by the fall of 1967, his tolerance for dissent against the war was exhausted. He vented his frustration on a young man named David Paul O'Brien.

O'Brien, then nineteen years old, had mounted the steps of the South Boston courthouse with three companions—David Reed, David Benson, and John Phillips—on a March day in 1966.
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They burned their draft cards in front of a crowd. FBI agents were among those who watched, and when the crowd turned on the protesters, the agents pulled them inside. Once there, they were informed of their rights, and O'Brien admitted burning his card as a protest. He handed an FBI agent an envelope containing the charred remains of his card. The agent took four pictures of the burned card as evidence.
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O'Brien was charged with violating an amendment to the Universal Military Training and Service Act of 1948, an amendment that was passed in 1965 with little discussion by a nearly unanimous Congress, whose members were infuriated by the outbreak of draft-card burning as a form of protest. Tried in federal court, O'Brien was convicted and sentenced to an extraordinary six years in prison. His conviction was overturned on appeal, where the circuit court ruled that the amendment unconstitutionally abridged O'Brien's right of free speech, though it also, in what the solicitor general would later describe as an act of “Yankee ingenuity,” held that O'Brien was guilty of failing to keep the card in his possession as required by the same law.
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Both sides appealed, the government to urge upholding of the amendment, O'Brien to contest his conviction for a crime he had never been charged with committing.
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O'Brien's conviction put before the Court yet again the question of where speech left off and conduct began—and whether the Court was willing to defend forms of protest that went beyond words. Indeed, as a style of protest, O'Brien's act seemed hard to distinguish from that of the black students who sat down in a Louisiana library in order to protest its refusal to serve Negro patrons. Neither was an act of pure speech. In the case of the Negro demonstrators, their message had been communicated by sitting down; in O'Brien's, by striking the match to the two-by-three-inch piece of paper that the government required him to carry and forbade him to destroy. Warren's clerk Larry Simon warned him that to declare O'Brien's act something other than speech was problematic—“there are several cases in the books where this Court has held that ‘conduct' is speech within the First Amendment,” he wrote, specifically citing the Louisiana library sit-in ruling, which Warren had joined. Like the Negro protesters, O'Brien was engaged in conduct “to express an idea.”
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All of that was true and well stated. What was clearly different, however, was the target of those protests: the Negro students aimed at segregation, and the Court shared their views; O'Brien and his colleagues were challenging the war, and the Court did not agree.

That is hardly the basis for a constitutional distinction, and Warren's style of judging—his reliance on his own instincts for society's well-being—failed him here as it had in his futile attempts to create a workable obscenity doctrine.

O'Brien's lawyer, Marvin Karpatkin, tried to emphasize to the Court the character of O'Brien's act—it was public and intended to convey a political message; as such, it deserved to be treated as speech. Warren was skeptical from the start. “Suppose a soldier over in Vietnam in front of a large crowd of soldiers, broke his weapon, and said it was a protest against the war and the foreign policy of the government,” Warren asked. “Would that be symbolic speech?”

Karpatkin, who would go on to represent Muhammad Ali in his draft litigation several years later, conceded that he did not know the answer to Warren's hypothetical. Karpatkin acknowledged, however, that not all political action was speech; assassination, for one thing, clearly was not protected. Fortas then pressed the question, asking whether a person could object to the tax code by destroying tax records, and whether the government could prosecute such a person for failure to maintain such records. Karpatkin fell back on the argument that in order to regulate symbolic speech, the government must demonstrate a valid purpose. That was all Warren needed. As he wrote in the final opinion:

 

In one sense, that approach was a vast improvement over Warren's initial tack—the exasperating attempt to distinguish between the “speech” and the “conduct” of draft-card burning. Instead, he and the Court substituted the idea that Congress may not regulate speech by virtue of its content—a principle that has outlived the specifics of
O'Brien
and continues to define speech regulation in contemporary America under the aptly named “O'Brien test.” Whether that test was applied correctly to O'Brien himself is another matter, as the Court's determination to snuff out draft-card burning, a determination adamantly shared by Warren himself, seemed to overwhelm its cool application of its new principle. That was further illustrated by another aspect of the Court's opinion, one that entailed a bit of sophistry. Congress's purpose in passing the act itself was to raise and maintain an army, but its “purpose” in passing the amendment was to prohibit draft-card desecration, which barely, if at all, helped its job of defending the nation. The real purpose of the amendment was to punish those who protested the war. But rather than admit that, Warren pretended that the Court could not examine Congress's motives. Calling such an inquiry “hazardous,” Warren wrote, “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.”
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That had not stopped the Court before—Warren had been willing to examine the motives of the legislators who adopted the Fourteenth Amendment, and, more recently, the Court had overruled the gerrymandered city limits in Tuskegee, Alabama, because the legislature there had adopted them with the intent to “despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.”
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But now, confronted with a form of protest it deplored against a war it accepted, Warren led the Court to uphold O'Brien's conviction and reinstate his prison sentence.

Warren's opinion was unpopular among his clerks and those of the other justices, most of them draft-age men whose sympathies ran against the war. After
O'Brien
was announced, a group of women from Connecticut attempted to hold a “burn-in” on the Court steps but were rained out. “Perhaps,” Brennan's clerks noted hopefully at the term's end, “
O'Brien
as a legal precedent will likewise be confined and fizzle.”
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O'Brien got no sympathy from Warren, and he felt the sting of offending Warren's principles. By contrast, a Florida inmate named Bennie Brooks, convicted of participating in a 1965 prison riot, touched Warren's sense of injustice. And just as Warren could be hard in opposition, so could he be effective in support. There did not, at first, seem much that Warren could do in Brooks's case. Brooks was one of more than a dozen Florida inmates at Raiford State Prison who had been convicted of participating in the riot. His conviction added time to his sentence and was obtained partly on the basis of his confession, which he had given after spending two weeks in a disciplinary “hole.” All the justices but Warren voted not to hear the case; it seemed to them a matter of internal prison discipline. Warren rarely dissented from such denials, but this time he was angered by the prison officials. His clerk Tyrone Brown wrote up a simple dissent, but Warren sent him back to work on it again. Brown, the only African-American to serve as a Warren clerk, added more detail on prison discipline in order to demonstrate why this was not an internal matter but rather one for the Court. Warren still was not satisfied, and called Brown in again.

“Let's tell them what really happened,” Warren said. “Tell them that the authorities placed these men in threes in tiny sweat boxes for two weeks, naked on a starvation diet with just a hole in the floor to defecate in! Tell them that they brought these men out, still naked, and forced written confessions from them! Tell them that these confessions were used to convict these men of new crimes, that many years were added to the terms they already were serving. Tell them what really happened in plain language . . . and let posterity decide who was right.”
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Brown did as directed, and Warren closed his dissent with an angry sign-off: “The record in this case documents a shocking display of barbarism which should not escape the remedial action of this Court.”
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Warren circulated his dissent on November 9, 1967. The following day, Fortas joined him. Over the next few weeks came identical changes of heart by White, Stewart, Black, Brennan, Marshall, Douglas, and, on December 13, Harlan. Warren's lone dissent was transformed into a unanimous, per curiam, opinion of the Supreme Court. Bennie Brooks's conviction was reversed.
Brooks v. Florida
will not stand shoulder to shoulder in history with
Brown v. Board of Education
or
Baker v. Carr
or
Miranda,
but as insight into Warren it is just as profound—Bennie Brooks got justice from the United States Supreme Court because Warren was practical and professional, stubborn on principle, and committed to fairness, no matter how small the case.

Irritation with antiwar protest caused Warren to retreat from protecting symbolic speech in
O'Brien
. Similarly, the nation's rising crime troubles edged Warren and the Court away from its protection of criminal suspects. Urban riots had become an annual summer feature of American life by the mid-1960s, and crime was alarmingly on the rise. Johnson himself proposed the Omnibus Crime Control and Safe Streets Act in 1967, and though it failed that year, he came back at it in 1968, doubling the appropriation and declaring in his 1968 State of the Union Address that there was “no more urgent business before this Congress” than passage of the bill intended to spend $100 million of federal money fighting urban crime.
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National alarm about crime metastasized in some quarters into anger at the Warren Court, where judicial rulings such as
Miranda
caused critics of the Court to blame it for coddling criminals.

The case of
Terry v. Ohio,
argued just a month before Johnson's 1968 State of the Union Address, allowed the Court to clarify how far it intended to go in proscribing police action.
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The arc of cases from
Gideon
through
Miranda
suggested that the Court was intent on holding back police and prosecutorial advantage, but those cases generally arose in safer times. Now the Court took stock of the changing criminal landscape and reaffirmed the validity of police “hunches” in the maintenance of a safe society.