1. The Impact of the Court
PSCI 2481

2. Empowering the Court: Judicial Review
Judicial review is the power of a court to decide if a law (federal or state statute or regulation) is contrary to the Constitution and to overturn it.
This power is not mentioned in the Constitution!!
Judicial review was established by the Marshall Court in Marbury v. Madison (1803).
Marbury's long-term effect has been to allow the Court to have the final say in what the Constitution means.
Keep your 3 M’s straight!
John Marshall was the Chief Justice of the Supreme Court that decided the case – ruling that a section of the Judiciary Act of 1789 was illegal .
William Marbury was the individual who lost his lower court case (demanding his midnight appointment by outgoing President Adams as a Washington DC JP) and appealed to the Supreme Court.
James Madison refused to deliver the appointment to Marbury at the order of new President Thomas Jefferson.
The twist: John Marshall was the Secretary of State under Adams who failed to deliver the appointment to Marbury after Adams nominated Marshall to be the new Chief Justice during the lame duck Congress of Marshall got his appointment but Marbury lost out.

3. Two Traditions Conservative Tradition
Courts should stand as a bulwark to safeguard property rights, privilege and preferred status.
Judicial review is necessary as a veto over legislative attempts to dominate government.
Liberal Tradition
Courts should defend individual liberties and civil rights against government intrusion.
Judicial review is necessary to uphold civil liberties against the arbitrary and zealous acts of executive officials.
START: There is a history of support for the idea of judicial review prior to 1803 but it’s not explicit, only implied (much like our discussion of the SC finding a “right to privacy” in the US Constitution).
In the Founding Period, the position that judges had the authority to make constitutional interpretations binding on the executive and legislature was a distinctly minority viewpoint although an “independent judiciary” was clearly viewed as important.

4. The strong conservative aristocratic orientation of the legal profession has resulted in courts functioning much more in accord with the conservative tradition.
Overlap with common law tradition (backward orientation toward the status quo)
Economic interest
Judges backgrounds
--Law is a stabilizing force enabling the maintenance of traditions.
--The profession rose to prominence generally based on its ability to represent and defend wealth (land owners, railroads, oil companies).
--As distinguished lawyers judges typically come from the most conservative wing of the profession.

5. Judicial Review Judges have used this power very sparingly.
The power has only been used about 140 times (in 200 years) to strike down acts of Congress.
However, the USSC has acted more frequently (over 1200 times) to invalidate acts of state legislatures.
As infrequently as this power is used, we hear lots about it.
Why do judges use it sparingly? Because they would probably get in even more trouble. They understand Hamilton’s statement that the court has neither the power of the sword nor the purse as reality. If the rest of the government doesn’t go along with them they are pretty powerless.

6. Supreme Court “Activism”, by Chief Justice
Chief Prior Acts of State
Justice USSC Congress Law
Overturned Overturned Overturned
Marshall
Taney
Chase
Waite
Fuller
White
Taft
Hughes
Stone
Vinson
Warren
Burger
Rehnquist
Average number per year.
(I think the) Data are only for the first 5 or 6 years of the Rehnquist CJ period

7. Judicial Review, Activism and Restraint
Arguments about activism & restraint are clouded by politics.
Judicial review can be a force of restraint (and is so considered within the conservative tradition).
Activism is more than judicial review.
It’s just not a restraint on the court’s behavior but meant to be one on legislative behavior. Modern critics just seem to forget the notion of checks and balances when the courts THWART the popularly elected branches.

8. Reasons for Criticism
An “activist” Supreme Court when it is unchanging in a changing world (e.g., 1937) might also be called “obstructionist”.

9. The Courts and Democracy
Critics spend most of their time complaining not about judicial review but about “activism”. They complain that Courts make (too much) public policy.
Is this a role for the Courts?
Do they actually do it?
And when we’re speaking about activist courts we’re usually focused on high appellate level courts, and most often the SC, not the local trial courts.

10. Judicial Policy Making and Implementation
All judges make (public) policy.
This was particularly noticeable following the Court ordered desegregation of public schools in its 1954 Brown ruling.
Judges are limited by the actions and preferences of many other political and governmental actors. Courts do not have the power to implement their decisions. The executive branch must enforce the Court’s decisions. And Congress must fund the executive’s activities.
Remember Hamilton and Federalist #78: The Courts have neither the power of the purse nor of the sword.

11. Under What Conditions Can A Court Have “Impact”
United Court
Unambiguous Opinion
Knowledge of the Court’s decision must become widespread
Legitimacy must not be questioned. (The Court must be seen as the proper institution to issue a decision.)
The decision must be enforceable and enforced by those who have the power to do so.

12. A Powerful or Powerless Court?
Three examples

13. The Supreme Court in a Hostile Environment: The case of Bob White
The “Facts”
Ruby Cochran (a white woman) was raped by a black man in the bedroom of her ranch in Livingston, TX
She did not see her assailant. It was dark. He was barefoot, armed with a knife, had bad breath and “was undoubtedly a Negro”.
Bob White, along with another 15 field hands on a farm 10 miles away, was arrested. All were locked up for 7 days.
In the presence of Mrs. Cochran, each was asked to read a statement.
Ruby: Don’t you know what the Cochrans will do to you?
Assailant: I don’t care what they do to me; I don’t care what happens to me.
On the basis of Ruby’s voice identification, White was repeatedly “interrogated” by Texas Rangers in the woods behind the jail until he confessed.

14. The Trials of Bob White
The state appointed a local attorney to defend Bob White.
A court-appointed attorney was required for capital cases by the US Supreme Court’s decision in Powell v Alabama (1932) (Rape at this point in time - especially rape of a white woman by a black man - was a death penalty offense).
After visiting Livingston and meeting his client, the state-appointed attorney withdrew. He realized that defending Bob White would affect any future business he might do locally. Houston attorney J.P. Rogers stepped in the defend White. (While White did not have any money, Rogers hoped the NAACP would step in an help defray the cost of the defense.)

15. The Trials of Bob White Trial I: Before Judge W. B. Browder
Special Prosecutor Z. L. Foreman
The Defense:
Rogers asked for the confession to be excluded. It was not.
Rogers asked for footprint casts taken at the crime scene. They were not provided.
Rogers asked for a change of venue to a less hostile community. Denied.
Rogers asked for a continuance (delay) to prepare his case. The Court refused to grant a continuance. (The trial begins 20 days after the date of the rape.)
Rogers secured affidavits to prove White’s alibi. The black witnesses were intimidated from appearing at the courthouse.
The Outcome:
White was found guilty and sentenced to death.

16. The Trials of Bob White
Rogers found a partner to help with the appeal and the NAACP agreed to help pay for the appeal.
April 6, The Texas Court of Criminal Appeals reversed the decision on the following grounds:
The environment was hostile.
The local court was non-responsive to the motions filed by Rogers.
The local court obstructed the appeal.

17. The Trials of Bob White Trial II:
The trial was moved to Conroe (in the same judicial district).
Judge Browder presided over the new trial.
The Outcome: White was found guilty and sentenced to death.

18. The Trials of Bob White White’s attorneys appealed again.
March 22, 1939
The Texas Court of Criminal Appeals refused to reverse the trial court decision. Why?
The systematic exclusion of blacks from the jury did not deny White a fair trial.
The refusal to permit admission of medical evidence about the victim was judged not prejudicial. (White has a venereal disease. Ruby Cochran did not.)
The “coerced” confession was not excluded since the jury had been instructed to discount it unless they believed it had been freely given.

19. The Trials of Bob White To the US Supreme Court
The request for writ of certiorari reached the USSC one day after adjournment for the Oct 1938 Term. (June 6, 1939)
White was scheduled to die June 2, 1939 and had been moved to Huntsville. But the State of Texas delayed the execution until the Supreme Court could act.
On November 13, 1939, The US Supreme Court refused to delay White’s execution, citing no grounds for appeal. Texas prepared to move forward with the execution.
February 12, 1940
The USSC announced its decision in Chambers v Florida. In this case, the court unanimously overturned a FL conviction based on outrageous behavior by local police authorities including the eliciting of a confession by use of force.
White’s attorneys, hearing of the Court’s decision in this case, made a last plea for reconsideration citing White’s forced confession.

20. The Trials of Bob White
On March 25, 1940, the US Supreme Court changed its mind about White v. Texas. It accepted White’s petition for writ of certiorari and granted him to move forward in forma pauperis.
The Supreme Court overturns the Texas court decision, reversing White’s conviction, and remanding the case to Texas for a new trial. It identified the confession as coerced and required Texas to free White or convict him at trial without us of the confession.
The community reaction in TX: How can the US Supreme Court set free a man who had confessed and who 2 TEXAS juries had convicted?

21. The Trials of Bob White Trial III: June 10, 1941
Before Judge W.B. Browder
Special Prosecutor Z. L. Foreman
The first day of the trial focused on finding unbiased jurors, 100 white men were examined and only 9 were chosen by 12:00 Noon.
Just before lunch on the first day on the new trial, all sheriff’s deputies leave the courtroom. “Dude” Cochran enters courtroom, walks up to the railing behind Bob White and shoots him in the back of the head.
Bob White dies in the courtroom.

22. The Trials of Bob White Trial IV: The Trial of Dude Cochran
(Six days later.)
Before Judge W.B. Browder
At trial, the DA argues for acquittal of “Dude” Cochran on murder charges:
“If I were on the jury, I would not hesitate to find the defendant NOT guilty.”
The jury deliberated for 2 minutes. “Dude” Cochran is declared innocent of murder and released.

23. The Supreme Court’s “Failure”
Did the Supreme Court do all it could?
What are our expectations of the Court?
What factors prevented the Supreme Court from having a more positive impact in this case?

24. Brown v. Board of Education
The Law prior to Brown v Board:
Plessy v Ferguson (1896)
The doctrine of “Separate but Equal”
Brown vs Board of Education:
Brown vs Board of Education of Topeka (KS)
Bolling v Sharpe (DC)
Briggs v Elliott (SC))
Davis v School Board Prince Edwards (VA)
Gebhardt v Belton (DE)

25. Brown v. Board of Education
Background:
Argued 1952
Re-argued in 1953 (under new CJ Earl Warren)
At the time 17 Southern and Border states + DC maintained segregated elementary and secondary schools and 4 other states -- AL, KS, NM, WY -- allowed segregation by local option.

26. Brown v. Board of Education
Announced May 17, 1954
The decision was unanimous 9-0:
“…in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherent unequal.”

27. Thurgood Marshall, Attorney for the NAACP & the Brown plaintiffs, meets the press
Q: “How long will it take for segregation to end?”
A: “It might take up to 5 years. By the 100 anniversary of the Emancipation Proclamation, segregation in all its forms will have been eliminated from the nation”
Thurgood Marshall meets with the media after the Brown v. Board decision is announced.

28. Brown v. Board of Education
BUT…
The decision announced did not include “relief” for the plaintiffs.
Marshall had to return to the Supreme Court to figure out how to enforce the decision.

29. Brown v. Board of Education
Brown vs Board of Education II
4 day argument, April 1955
Attorney Generals of 6 other southern states plus the US through the SG participated as “amici curiae”
Decision in Brown II announced May 31, 1955
Cases remanded to local courts to supervise public school desegregation.

30. Brown v. Board of Education
Expectations set out in the Brown II opinion:
Lower federal courts were in the best position to ensure compliance. They would enter orders and decrees consistent with the opinion in Brown I.
These orders would be “necessary and proper” to establish racially non-discriminatory schools.
This process must proceed “with all deliberate speed”.

31. Brown’s impact of southern schools
How long did it take to integrate southern schools after the SC announced it’s decision in 1954? The immediate response from the southern states was “Until Hell Freezes Over”.
It took more than 10 years. The Court could not integrate the south on its own and it took executive action (in some cases involving the US National Guard) combined with a variety of federal laws finally enacted by Congress in the mid-1960’s to force southern response to BvB.

32. Integrating Southern Schools: Black Children in Elementary & Secondary Schools with White Children
% (Brown v. Board) % % % % % % %
So (when) does Brown change anything?

33. Integrating Southern Schools: Black Children in Elementary & Secondary Schools with White Children% % % % % % %

34. Brown v. Board of Education: The “end” of separate but equal
Public Beaches and Bathhouses
Mayor and City Council of Baltimore v Dawson, 1955
Public Golf Courses
Holmes v City of Atlanta, 1955
City Parks and Recreation
New Orleans City Parks Assoc v. Detiege, 1958
State Parks
Wright V Georgia, 1963
Intra-state Transportation
Gayle v Browder, 1956
Inter-state Transportation
Boyton v Virginia, 1960
Airports
Turner v Memphis, 1962
Public Parking
Burton v Wilmington Parking Authority, 1961
Courthouse Cafeteria
Derrington v. Plummer, 1956
Public Libraries
Brown v Louisiana, 1966

35. A System of Checks and Balances
Why don’t things change more quickly? Shouldn’t people do what the Supreme Court says?
Remember Hamilton’s words (“Neither the power of the sword nor the power of the purse.”)
And then-President Dwight Eisenhower’s comment abut the Brown decision: “They made their decision, now let them enforce it.”*
How important are the other branches of government? (Does each need the other to be effective or have impact?)
Eisenhower merely echoed President Andrew Jackson who said the same thing about the Supreme Court’s decision about the rights of the Cherokee Indians almost 200 years ago. HOWEVER, Eisenhower did try to enforce the court’s decision. In 1957 he sent federal troops to Little Rock Arkansas to try to support the attempt to integrate that school district.

36. Historical Events Can government change society?
Kennedy Administration embraces civil rights leaders.
The political parties change positions.
Impact of the Kennedy assassination and his civil rights legacy.
The role of the 1964 Democratic landslide. And the rise of northern liberal wing of the party over the southern conservatives.
Passage of the Civil Rights Act and Voting Rights Act in 1964 and 1965

37. The Powerful Court? POLICY
Not very often – and not in Brown vs Board although that is the common historical example of a powerful court.

38. The Court in a System of Checks and Balances
POLICY
Essentially we have a weak system of government. Rarely does one institution get very far acting alone.

39. An “enforceable” decision?

40. A Right to Counsel?
The 6th Amendment guarantees every person accused of a crime the right to an attorney for his or her defense, regardless of ability to pay for counsel.
The 14th Amendment, meanwhile, guarantees all citizens equal rights regardless of race or national origin.
All too often, these rights are violated by indigent defense systems that leave low-income people, including many people of color, without adequate representation.
ACLU

41. Gideon v. Wainwright Who was Clarence Earl Gideon? The defendant
Drifter - Indigent
Arrested for B&E (Burglary of pool hall & its vending machines)
Tried (and convicted) w/o an attorney despite requesting one!

42. The Bay Harbor Poolroom
The right to counsel began with a burglary at the Bay Harbor Poolroom, on the outskirts of Panama City, Florida

43. Gideon v. Wainwright What was the existing law? Powell v Alabama, 1932
Lawyer must be appointed in capital (death penalty) cases
Betts v Brady, 1942
No universal assurance of a lawyer’s help in state criminal trial. Only required if to be tried w/o one amounted to a denial of “fundamental fairness”

44. Gideon v. Wainwright The Trial (August 4, 1961)
The original case name is State vs. Gideon.
Judge Robert McCray, jr. presided over the trial.

45. From The Trial Transcript…
The Court (Judge Robert L. McCrary, Jr.): The next case on the docket is the case of the State of Florida, Plaintiff, versus Clarence Earl Gideon, Defendant. What says the State, are you ready to go to trial in this case?
Mr. Harris (William E. Harris, Assistant State Attorney):The state is ready, your Honor.
The Court: What says the Defendant? Are you ready to go to trial?
The Defendant: I am not ready, your Honor.
The Court: Did you plead not guilty to this charge by reason of insanity?
The Defendant: No, Sir.
The Court: Why aren’t you ready?
The Defendant: I have no counsel.

46. The Court: Why do you not have counsel
The Court: Why do you not have counsel? Did you not know that your case was set for trial today?
The Defendant: Yes, sir, I knew that it was set for trial today.
The Court: Why, then, did you not secure counsel and be prepared to go to trial?
The Defendant answered the Court’s question, but spoke in such low tones that it was not audible.
The Court: Come closer up, Mr. Gideon, I can’t understand you. I don’t know what you said, and the Reporter didn’t understand you either.
At this point the Defendant arose from his chair where he was seated at the Counsel Table and walked up and stood directly in front of the Bench.
The Court: Now tell us what you said again, so we can understand you, please.

47. The Defendant: Your Honor, I said: I request this Court to appoint counsel to represent me in this trial.
The Court: Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint counsel to defend you in this case.
The Defendant: The United States Supreme Court says I am entitled to be represented by counsel.
The Court: Let the record show that the defendant has asked the court to appoint counsel to represent him in this trial and the court denied the request and informed the defendant that the only time the court could appoint counsel to represent a defendant was in cases where the defendant was charged with a capital offense. The defendant stated to the court that the United States Supreme Court said he was entitled to it.
Gideon didn’t know what he was talking about. He had no right to counsel.

48. Gideon Loses No lawyer No real defense
No answer to the prosecution’s evidence that he was in the courtroom and later seen with pockets full of small coins.
The 6 man jury found Gideon guilty.
The Judge sentenced him to the maximum term of 5 years in the state prison.

49. Raiford Prison
Gideon served his time at Raiford Prison in Union County, Florida.

50. Gideon’s petition to the USSC

51. Gideon’s petition to the USSC

52. Gideon v. Wainwright US Supreme Court
“In forma pauperis”  Miscellaneous Docket
The case was originally called Gideon v Cochran.
So who is Cochran and where did Wainwright come from?
H. G. Cochran
Louie Wainwright

53. The Supreme Court hires an attorney to represent all its pauper cases
The Supreme Court hires an attorney to represent all its pauper cases. In this instance it asked Abe Fortas, Washington DC attorney (and later to become a Justice on the same court) to serve as Gideon’s representative and to make arguments on his behalf.
Fortas determined that this was a good case to challenge the existing precedent of Betts v. Brady because it was “ordinary”. There wasn’t something special about this case that would make it unique and distinguishable.

54. The USSC Decision The USSC is Unanimous: 9-0!
Court’s Opinion by Justice Hugo Black
Additional opinions by Justices Douglas, Clark and Harlan (all concurring)
The judgment is reversed and the case remanded to the Supreme Court of Florida for action not inconsistent with this opinion.”
Did the precedent cases matter?
Justice Hugo Black (Speaking a few weeks after the decision): “When Betts v Brady was decided, I never though it would be overturned.”
Black is able to criticize Betts v. Brady using an earlier precedent Powell v. Alabama. Betts was the departure from logic that spans both Powell and Gideon.
The Florida SC sent it back to the trial court for a new trial.

55. Gideon v. Wainwright The Second Trial (August 5, 1963)
ACLU volunteers to help. Sends attorneys.
Gideon refuses to accept ACLU help. A local attorney, Fred Turner, is assigned to assist Gideon despite his demand to handle his own defense (AGAIN).
Judge Robert McCray, jr
The Outcome: Gideon wins! (but only because his local court appointed attorney figures out how the crime actually occurred.)

56. Gideon v. Wainwright The Impact of the Decision
By May, 1963, pressured by Gov. Farris Bryant, Florida legislature approved a public defender law to establish offices in all state court districts in Florida
Within the year North Carolina, Alabama, Mississippi and South Carolina (the four southern states w/o any system for dealing with non-capital defendants w/o attorneys) established plans with local bar associations to form pools of attorneys willing to serve.
Colorado and Oregon followed suit allowing counties to establish public defender offices. New Hampshire & Vermont modified their laws. The Minnesota legislature authorized compensation where there had been none previously.
California expanded the rule to include a guarantee of attorney through the appeals process.

57. Gideon v. Wainwright The Impact of the Decision
The laggard? The US Congress. The Supreme Court had actually indicated the right to an attorney in all federal cases 25 years prior to Gideon (Johnson v Zerbst) but Congress did not provide funding for public defenders except in the DC until the late 1960’s. (This is – unfortunately – another example of how the Court has neither the power of the sword or the purse.)
The message got out early to elites.
The message got out to the public a few years later – in the form of the Miranda Warning.
But the Miranda warning itself required another court decision – Miranda v. Arizona – which we’ll talk about next week.

58. The Long Term: There are no guarantees (Halbert v. Michigan)
1999 – The Michigan legislature passes a law forbidding judges from appointing counsel for indigent defendants who wish to appeal their convictions if they plead guilty.
In Halbert v. Michigan (June ), the USSC rules that Michigan’s denial of legal representation to poor people is unconstitutional.
2006, the ACLU files a class action suit against the state to force MI appeals court judges to act in compliance with the Halbert ruling.
MI Judge Dennis Kolenda: “I have no obligation or intention of following the Supreme Court’s ruling. It is incorrect and illogical.”

59. The Bottom Line Courts can have an impact on public policy BUT
They have to have help (other Institutions)
We have to listen
They have to speak clearly and precisely
We have to be willing
They have to not ask too much
The lack of “the purse” and “the sword”!