Justice for All (86 page)

 

 

THE AGENDA of the United States Supreme Court is partly its own. The justices choose the cases they hear, and any combination of four justices is enough to take up a case and either set it for argument or decide it on the briefs. But the Court cannot dictate what lawsuits will be filed, what cases prosecuted, what appeals pursued. It cannot avoid decisions because its members, even its chief, are preoccupied. And so, as the Warren Commission ground through its early labors, the Warren Court took stock of a momentous agenda. Warren had agreed at the first Court conference to write in the reapportionment cases, and even though he had since accepted the chairmanship of the president's Commission, he refused to hand off the work. So now, as Rankin began hiring lawyers, Warren returned to
Reynolds v. Sims. Reynolds
was the first case of its kind to come to the Court in the post-Frankfurter era, and Warren now operated with the latitude that only Frankfurter's absence could have provided.

Alabama's constitution was adopted in 1901, and it provided for a two-house legislature, which, as the 1960s opened, consisted of 35 senators and 106 members of the state House of Representatives.
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The state's political balance had been struck with the adoption of its constitution, and in the sixty years since, it had grown unevenly, with cities such as Birmingham, Mobile, and Montgomery growing faster than rural areas. Although the state constitution also required a decennial reapportionment, Alabama's leaders had ignored that provision, and its courts, while finding that a violation, took the Frankfurter view that politics was beyond the reach of judges.
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The result was a pattern of voting that denied urban—and thus, black—voters anywhere near the power afforded to rural whites. Bullock County, for instance, had a population of 13,462 and was given two representatives in the state legislature; Mobile, with a population of 314,301, had three. It was, in the language of the law, an “invidiously discriminatory plan completely lacking in rationality.”
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And yet it stood.

Warren set out with
Reynolds
to complete the work of
Baker v. Carr,
but he did so while also chairing the Warren Commission. As a result, he relied heavily on his clerk, often talking with him by phone or meeting at the beginning or end of long days. Beytagh and Warren settled on some early drafts and began to circulate them among the justices. It was immediately clear that they would prevail. “The opinions issuing from the chambers of the Chief Justice in those cases were joined without the slightest apparent hesitation or reservation by Justices Black, Douglas, Brennan, and Goldberg,” Brennan's clerks recorded that year.
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That gave Warren a majority, but a slim one, and he asked Beytagh to continue to hone the writing, specifically with an eye toward attracting White's vote. Beytagh drafted and corrected drafts, and Warren worked on White personally, dropping by his chambers, urging him to consider the fairness implications of rules that gave so much more power to some voters than others. By spring, White was wavering, and Beytagh and Warren were discussing the finer points of the ruling, among them the question of how often legislatures should be required to redraw district lines. In his draft, Beytagh had proposed a decennial reapportionment to coincide with the census. Warren was not convinced.

In that case, Beytagh said, “I have an alternative. We can go back to the
Brown
case and use ‘all deliberate speed.' ”

“No,” Warren replied, shocked at the idea of reviving the phrase that had caused him and his Court such grief. “I'm not going to do that.”

“I'm just pulling your leg,” Beytagh said, and the two relaxed in a moment of laughter. Laughter came all too rarely in 1963 and 1964.
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By the end of the term, White had come around on
Reynolds,
and he eventually joined in its reasoning and its memorable language, much originally the work of Beytagh, though all of it supervised by the chief justice. “Legislators represent people, not trees or acres,” the opinion for the Court noted. “Legislators are elected by voters, not farms or cities or economic interests.”
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More than four decades afterward, those remain the most quoted words of the
Reynolds
opinion, but
Reynolds
also contains a parting shot by Warren at Frankfurter and the votes he once commanded:

 

Harlan dissented with a thorough and complex work, accompanied by two appendixes. Warren contemplated a reply, but then abandoned the idea at the last minute.
Reynolds
stood on its own, and it, along with
Baker v. Carr,
came to be the opinions that Warren valued above all others.
⁵⁶
It was natural that they should. Warren, who believed so deeply in the fundamental principles of American democracy, in its Declaration and in the conviction that its Constitution required fairness, saw the right to vote and the right to have every vote count equally as predicates for the fair society he was helping to build. If the rights and responsibilities of society were to be administered through its government, Warren believed, “it must be done by representatives who are responsible to all the people, not just those with special interests to serve.”
⁵⁷

That conviction first was expressed in
Baker,
though that was Brennan's writing. It was reinforced and expanded by
Reynolds,
this time in Warren's words. But it was pushed to a limit that demonstrated just how serious Warren was in one of
Reynolds
's companion cases,
Lucas v. Colorado General Assembly
. There, Warren wrote for a Court that not only insisted that voting districts be drawn according to population but also specifically rejected an attempt by the voters of Colorado to draw them otherwise. “An individual's constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State's electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause,” Warren wrote. “A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”
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In effect, Warren—the old Progressive, still convinced that enlightened leadership acted as ballast against the swings of populist bandwagons—said in
Lucas
that democracy was so important it could not be curtailed even through the democratic process. Democracy was essential to achieve fairness; fairness could not be subverted, even by democracy.

Warren's determination in the legislative redistricting cases thrust the Court into its third great battle of his tenure, following the attacks on its decisions regarding segregation and domestic security. This time, the reaction came in the form of a sneak attack. The Council of State Governments met in December 1962 in Chicago and there adopted three resolutions. The first would require the Congress to certify any constitutional amendment passed by two-thirds of the state legislatures; the second proposed creation of a Court of the Union, composed of the chief justice of each state Supreme Court, with the power to override the United States Supreme Court on any matter that asserted rights reserved to the states or people under the Ninth or Tenth Amendment to the Constitution; the third would overrule
Baker v. Carr
.
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Where other challenges to the Court's jurisdiction or authority had attracted wide attention, this one passed with little note—except in state legislatures, where elected officials exercised about
Baker v. Carr
took up the call and quietly passed the proposed amendments. By the spring of 1963, twenty-four states had passed some version of the amendments with barely a whisper of opposition. Warren learned of those developments with alarm, and used a scheduled set of speaking engagements that April and May to draw attention to a threat against his Court and the framework of federal-state relations. Speaking at Duke University on April 27, Warren demanded that the nation's lawyers take note of the movement: “If lawyers are not to be the watchmen of our Constitution, on whom are we to rely?”
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That drew press attention, as did his reiteration of that call three weeks later at a meeting of the American Law Institute. Warren marshaled his prestige against the proposals, and once exposed to scrutiny, they withered.

The reapportionment decisions were the most momentous of the term, and they placed the Court in its most precarious political debate, but the most contentious disagreement among the brethren occurred elsewhere. In earlier times, Warren would have turned to Black for support in the term's divisive deliberation, but this time they would part ways, their first significant break over civil rights. The sit-in cases that confronted the United States Supreme Court that term had been working their way to the Court for some time. In the fall of 1963, the Court accepted three new cases:
Bell v. Maryland; Barr, Bouie v. City of Columbia, South Carolina;
and
Robinson v. Florida
. Another case,
Griffin v. Maryland,
had been argued the previous term and held over, so it too was before the justices as they contemplated the balance between the rights of private property and those of equal protection. Each case brought slightly different facts, but all centered on the same basic question: How far could state and local governments go to enforce racial segregation by owners of private facilities? In other words, if a privately owned restaurant refused to seat black customers and the police then assisted in ejecting those customers, had the state lent government support for segregation or merely assisted in the protection of private property from trespass?

On October 18, 1963, in its first conference on the subject, the Court voted in favor of the protesters in two of the cases—
Griffin
and
Bouie,
though both were by 5-4 majorities and the Court in neither reached the basic constitutional question of whether private owners could discriminate and rely on the state to enforce their discrimination. In
Bell
and
Robinson,
however, the Court was inclined to address that basic question, and in both instances, an equally thin majority rallied behind Black to uphold the rights of private property over those of assembly and protest. In one sense, Black's position was predictable. He had always drawn a distinction between speech and action, and in his view the actions of the demonstrators exceeded the protections of the First Amendment, at least when they were placed in conflict with the rights of private property holders. Making that point to the brethren, Black drew upon his usual constitutional literalism but this time added a distinctly personal touch: Black's “Pappy,” he told the justices, had run a little store in Alabama, and Black refused to believe that his Pappy was obligated to serve just anyone; it was his store, his property, and his right to choose who came inside.
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The Court's more conservative justices, unaccustomed to having Black in their corner, endorsed his view. That gave Black the company of Clark, Harlan, Stewart, and White and placed him at odds with his traditional allies—Warren, Brennan, and Douglas—along with the newly arrived liberal, Goldberg.

It had been months since Birmingham and the March on Washington had convinced Kennedy to introduce his Civil Rights Bill, but that legislation was still before Congress when the Court first took up its five sit-in cases that fall. With Black's exhortation on property rights and his departed Pappy, he thus placed himself in opposition to the leading civil rights imperative of that year. Brennan and perhaps Warren, apparently swept up in the heat of the discussion, threatened to do all they could to stall the Court's decisions—a ruling against the protesters, particularly one bearing Black's prestige, would, they feared, badly hurt chances for passage of the bill.
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Such overt reference to politics is highly unusual inside the Court, and the conservative justices understandably took offense at the threat to gum up pending cases merely to advance a political interest. “The suggestion of delay,” Brennan's clerks admitted, “caused a certain amount of hard feeling among the Justices.”
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The battle lines thus hardened and remained set through the fall, through the death of Kennedy, and into the New Year. With Warren preoccupied by the reapportionment cases and the assassination commission, it fell to Brennan to lead what was, in effect, a prolonged stall.

The first move was a page taken directly from Frankfurter's slowdown of the
Brown
deliberations. It was to ask for more briefing, in this case in the form of an amicus brief from the federal government. Proof of how testy the discussion had become can be found in the fact that the vote on that relatively benign proposal broke 5-4. Harlan at first joined with those seeking more argument, then reconsidered overnight, undoubtedly having realized that he was being used as part of the delaying tactic.
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The request for reargument passed only because Stewart, who was allied with the conservatives on the basic question, went along with the liberals seeking more information. Then Warren took his time informing the solicitor general, who, soon after receiving it, asked for another extension.
⁶⁵
It did not arrive at the Court until early 1964. When it did, it contained one small but important revelation: Attorneys in that office, in the course of researching Florida's segregation laws, found one that regulated toilets by race. Because that was clear state action, it provided a basis for reversing the convictions in the
Robinson
case, and it bought the liberals even more time, since Black had structured his main opinion in the sit-in cases on
Robinson
and now was forced to retool it around the facts in the
Bell
case.
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