May 18, 1896 – The U.S. Supreme Court Upheld the Constitutionality of “Separate-But-Equal” Segregated Public Facilities in Plessy v. Ferguson (163 U.S. 537)

The state of Louisiana enacted a law that required railroads in that state to provide “equal but separate” cars for blacks and whites. In 1892, Homer Adolph Plessy–who was seven-eighths Caucasian–took a seat in a “whites only” car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested.

The statute was attacked upon the grounds that it conflicted with both the Thirteenth Amendment, abolishing slavery, and the Fourteenth Amendment, which requires states to provide “equal protection of the law” to all their citizens.

The Court concluded that the Louisiana statute was an appropriate exercise of the state’s police power within constitutional boundaries. The majority, in an opinion by Justice Henry Billings Brown, upheld state-imposed racial segregation. The Court held that the inapplicability of the Thirteenth Amendment was “too clear for argument,” finding that that amendment applied only to conditions of involuntary servitude.

The crux of the case was whether the statute met the requirements of “equal protection” under the Fourteenth Amendment. Justice Brown conceded that the 14th amendment intended to establish absolute equality for the races but only in the application of the law. But Brown wrote that “in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory to either.” In short, segregation does not in itself constitute unlawful discrimination. He noted:

“Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced….”

“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it….”

“Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

Justice Henry Billings Brown

The Court observed that “every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.” Justice Brown wrote, “In determining the question of reasonableness, it [the legislature] is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable…”

He further pointed out that the question of how much blood in a person constitutes “a colored person, as distinguished from a white person” is up to the states, and at any rate, was not at issue in this case.

Although the Plessy case became know as establishing the “separate but equal” doctrine, that phrase does not appear in the body of the opinion. Rather, the term “equal but separate” appears in the language of the challenged statute.

Justice John Marshall Harlan dissented vigorously, writing:

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. … In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”

Justice John Marshall Harlan

On May 17, 1954, the Court repudiated the separate but equal doctrine, at least insofar as it applied to public education, in Brown v. the Board of Education. After hearing arguments by NAACP lawyer Thurgood Marshall, a unanimous Court adopted Justice Harlan’s position that state-imposed segregation in education violated the equal protection clause of the Fourteenth Amendment. Although the Brown court was careful to limit its holding to the case of public education, most commentators have interpreted the Brown decision as a complete overruling of Plessy.

Authors: Jill Broderick, M.A., and Jim Broderick, J.D.

April 17, 1905 – The U.S. Supreme Court Decided Lochner v. New York

Is it the function of the Judiciary to second-guess the elected representatives of the people? Or can it be assumed the majority knows best? Should economic power confer political power? These are some of the questions posed by one of the most famous cases in U.S. Supreme Court history, Lochner v. New York.

In New York at the end of the 19th Century, bakers were paid by the day, which could run from ten to fourteen hours. Bakers wanted shorter workdays and were also concerned about the health hazards in their workplaces. A “muckraking” reporter for the New York Press published stories about unsanitary working conditions in small bakeries, confirmed by inspection reports. New York’s Bakeshop Act of 1897 regulated some sanitary conditions and strongly supported the baker’s union, establishing the 60-hour maximum workweek.

Utica bakery owner Joseph Lochner fought the union, which then filed a complaint against him for employing a baker for more than sixty hours in one week. Lochner was found guilty and appealed, arguing that The Bakeshop Act violated the Fourteenth Amendment (which holds that “No state shall make or enforce any law which shall … deprive any person of … liberty…without due process of law….”)

Justice Rufus Peckham, writing for a five-Justice majority of the Supreme Court, found that “The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment of the Federal Constitution.” This included the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power. Justice Peckham did not consider the health effects of a 60- hour workweek to be a “reasonable ground” for interference with the liberty of contract under federal law. Moreover, restriction of hours is “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.” (The Court previously had agreed that some state police power is appropriate with respect to labor conditions, such as for underground mining, but apparently working in a bakery did not arouse much interest in the Court. Justice Peckham wrote: “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.” No one dissenting expressed disagreement on the point of whether bakers were more intelligent than miners.)

Justice Rufus Peckham

As for the deleterious effects of working in a bakery, The Court contended that “all occupations more or less affect the health.” But does that fact, Justice Peckham asked, put us all “at the mercy of legislative majorities?” The bottom line for the Court was that “The [Bakery Act] is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts.”

(Interfering with contracts on the grounds of public policy is controversial because first, it empowers a court to interfere in private agreements. Second, there is no bright line between acceptability and abuse. And third, it is not clear that courts should impose their value judgments not only on private individuals but on popularly-elected legislatures.)

Justice Oliver Wendell Holmes, Jr. notably dissented (Judge Richard Posner characterized the Holmes dissent as “the best Supreme Court opinion ever written”), maintaining that the real issue was whether the Court had the right to impose its own preferences over the right of the majority as manifested by the legislation it enacts. Holmes wrote “It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. … I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.” Holmes’ view was eventually adopted, but not for some thirty years.

Justice Oliver Wendell Holmes, Jr.

With this decision, the Supreme Court embarked upon the so-called Lochner Era of its history. Over the next three decades, the Court struck down numerous attempts by state governments to improve working conditions or protect consumers, all pursuant to the Lochner holding of “liberty of contract.” The term “substantive due process” is often used to describe the Court’s approach – that is, ruling on the “substance” of legislation rather than the process used to enact it. And in fact, “Lochnerism” is used as shorthand to indicate judicial activism, as well as, somewhat ironically, judicial conservatism.

In the late 1930’s, in the new atmosphere created by the administration of Franklin Roosevelt, the Court rejected the approach of safeguarding private business from government encroachment, and began to uphold the constitutionality of the regulatory scheme, deferring to the expertise and findings of the legislature.

March 29, 1937: The Switch in Time That Saved Nine: West Coast Hotel Co. v. Parrish

March 29, 1937 is the date the Supreme Court issued its landmark decision in West Coast Hotel Co. v. Parrish (300 U.S. 379), in which it upheld the constitutional validity of Washington state’s minimum wage statute, and by implication, much more of the New Deal.

The five to four decision reflected an unexpected shift in the voting of Associate Justice Owen Roberts.

President Franklin D. Roosevelt had been frustrated in his efforts to push through several New Deal measures intended to bolster economic recovery during the Great Depression, because they had been struck down by the Supreme Court. He sought to counter the opposition to his program by expanding the number of justices, in order to create a pro-New Deal majority on the bench. Roosevelt proposed the Judiciary Reorganization Bill of 1937, frequently called the “Court-packing plan.” This legislation would have granted the President power to appoint an additional Justice to the U.S. Supreme Court for every sitting member over the age of 70½, up to a maximum of six.

The legislation was presented to Congress on February 5, 1937. The West Coast Hotel ruling came several weeks later, with Associate Justice Owen Roberts joining the more liberal wing of the bench. Justice Roberts had previously ruled against most New Deal legislation. Thus his switch here was widely seen by contemporaries as an effort to maintain the Court’s judicial independence by eliminating Roosevelt’s rationale for judicial reorganization. (This interpretation of Roberts’s action was later called into question.) His move came to be known as “the switch in time that saved nine.”

Justice Owen Roberts

Ultimately, Roosevelt’s proposed court packing plan failed. The entire episode created a public relations nightmare for Roosevelt and also sapped his influence over Congress.

None of this gainsays the importance of the West Coast Hotel case itself. Here are the facts:

The plaintiff, Elsie Parrish, an employee of the West Coast Hotel Company, received sub-minimum wage compensation for her work. Parrish brought a suit to recover the difference between the wages paid to her and the minimum wage fixed by state law. The question before the Court was: Did the minimum wage law deprive the employer and employee of liberty without due process of law under the Fourteenth Amendment? The specific liberty allegedly infringed was that of freedom of contract.

The Court had previously held in Adkins v. Children’s Hospital that the District of Columbia’s very similar minimum wage act was invalid because it denied freedom of contract under the due process clause of the Fifth Amendment.

(Under the Fifth Amendment, “no person…shall be…deprived of life, liberty, or property, without due process of law….” Under the Fourteenth Amendment, “No State…shall deprive any person of life, liberty, or property, without due process of law….”)

But in West Coast Hotel, the Court held that the State of Washington’s establishment of minimum wages for women was constitutionally legitimate. In effect, they were ruling that Atkins had been decided incorrectly. The Court noted that the Constitution did not mention “freedom of contract” and that “liberty” was subject to the state’s reasonable exercise of its police power (because “liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people”). The Court noted that employers and employees were not equally “free” in negotiating contracts, since employees often were constrained by practical and economic realities. This was especially true in the case of women.

The Court wrote: “The State has a special interest in protecting women against employment contracts which through poor working conditions, long hours or scant wages may leave them inadequately supported and undermine their health; because:

(1) The health of women is peculiarly related to the vigor of the race;
(2) Women are especially liable to be overreached and exploited by unscrupulous employers; and
(3) This exploitation and denial of a living wage is not only detrimental to the health and wellbeing of the women affected, but casts a direct burden for their support upon the community.”

Law Professor J.M. Balkin points out that the opinion in West Coast Hotel displayed “radical, humanitarian aspects.” Balkin observes: “…by daring to label the common law regime of property and contract a ‘subsidy for unconscionable employers,’ (379 U.S. at 399), West Coast Hotel affirmed the connection between economic equality and substantive liberty, between economic power and political right.” (83 Nw. U.L. Rev. 275, 310). Balkin suggests that “if the legislature was right to alter the economic status quo because that regime violated human liberty, then the distribution of economic power in society had everything to do with the liberty guaranteed by the due process clause.” (ibid)

This recognition of the nexus between political and economic liberty lasted only one year, however, until the April 25, 1938 decision U.S. v. Carolene Products. Stay tuned to this blog to hear about Carolene Products on April 25, a decision that contains the most famous footnote in the history of law!

March 26, 1962 – The U.S. Supreme Court Decides Baker v. Carr

Baker v. Carr, 369 U.S. 186 (1962), was a landmark United States Supreme Court case which decided that federal courts had the power to rule on the constitutionality of reapportionment plans and decisions (that is, changes in the boundaries of voting districts) made by state governments.

This case is one of the most cited in Supreme Court history. Why? There are at least two reasons it has engendered so much attention.

The first is the intrinsic importance of apportionment to the exercise and maintenance of political power. Canny setting of boundaries can establish “safe” districts for the party in power and dilute the concentration of voters for its opponents. The majority party in state politics generally has the power to set the boundaries of voting districts, and has a strong incentive to maximize the number of legislative seats it can control. Almost by definition, minority parties cannot use the legislative process to prevent the majority from setting boundaries that favor the majority. Thus the minority has an incentive to fight the majority’s reapportionment decisions in any way it can, the most effective of which has proved to be constitutional litigation.

The second reason for the frequency of citation of Baker is the controversy over the separation of powers among the branches of government. The courts use the term justiciable to describe matters that are amenable to resolution through the judicial process. The Supreme Court has always held that matters that are purely “political” do not fall within the purview of the judiciary. However, deciding whether a matter is political or justiciable can be a very thorny issue. The Court has striven mightily to articulate the distinctions between those two legal categories, and Baker v. Carr is its seminal effort on this question.

The defendant in Baker v. Carr unsuccessfully argued that reapportionment of legislative districts is a “political question.” Plaintiff Charles Baker was a Republican who lived in Shelby County, Tennessee, the county in which Memphis is located. (Defendant Joe Carr was sued in his position as Secretary of State for Tennessee.) Baker complained that the Tennessee State Constitution required legislative districts be redrawn every ten years according to the federal census to provide for districts of substantially equal population, but that Tennessee had not in fact redistricted since the census of 1901. By the time of Baker’s lawsuit, the population had shifted such that his district in Shelby County had about ten times as many residents as some of the rural districts. Thus, the votes of rural citizens were worth more than the votes of urban citizens. Baker argued that this discrepancy failed to afford him the “equal protection of the law” required by the Fourteenth Amendment.

Justice Brennan reformulated the applicable doctrine, proposing a six-part test for determining which questions were “political” and thus, not “justiciable.” He stated that cases deemed to be political would evince: [1] “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” [Numerals in brackets added for clarity.]

Justice William Brennan

The Court found that none of those characteristics applied to Baker’s complaint. In doing so, it had to distinguish many previous cases in which it had chosen not to rule because of political considerations. Most previous reapportionment cases had unsuccessfully argued that the states’ actions had violated the constitutional clause guaranteeing a “republican form of government.”

But Baker did not rely on the so-called “Guarantee Clause,” which if anything militates against judicial interference with the acts of the legislature. The Court majority found Baker’s complaint to be more similar to that in Gomillion v. Lightfoot, 364 U.S. 339 (1960). Gomillion was a Negro who had been a resident of the City of Tuskegee, Alabama until the municipal boundaries were so recast by the State Legislature as to exclude practically all Negroes. He claimed deprivation of the right to vote in municipal elections. The defendant unsuccessfully argued that states enjoyed unrestricted control over municipal boundaries.

In this case, the Court relied on the Fifthteenth Amendment. (It reads in part: “Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”) The Court applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a racially discriminatory impairment of voting rights.

Citing the Gomillion case, Justice Brennan wrote “Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. . . . The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.”

The Court did not want to get into the business of drawing legislative district boundary lines, a task for which it was ill-suited. Instead, it found that the Fourteenth and Fifteenth Amendments acted as constraints on the acts of the legislature. The legislature was free to draw the boundaries as it wished (one might say, in a political manner), so long as those boundaries did not impinge on rights secured by the Amendments.

After the case was first argued in the Supreme Court, it had to be put over to the next session for re-argument because no clear majority emerged in conference for either side. Justice Charles Evans Whittaker was so troubled by the case that he eventually recused himself, and the arduous decisional process in Baker is often blamed for Whittaker’s subsequent health problems, which forced him to resign from the Court.

The opinion was finally handed down nearly a year after it was initially argued. The Court split 6 to 2 in ruling that Baker’s case was justiciable, producing, in addition to the opinion of the Court by Justice Brennan, three concurring opinions and two dissenting opinions.

Justice Tom C. Clark switched his vote at the last minute to a concurrence on the substance of Baker’s claims. Justice Felix Frankfurter, joined by Justice John Marshall Harlan II, dissented vigorously and at length, arguing that the Court had shunted aside history and judicial restraint and violated the separation of powers between legislatures and Courts.

Justice Felix Frankfurter

The large majority in this case can in many ways be attributed to Justice Brennan, who convinced Justice Potter Stewart that the case was a narrow ruling dealing only with plaintiff’s power to challenge the legislature’s failure to act. Brennan also talked down Justices Black and Douglas from their usual absolutist positions to achieve a compromise.

[Baker v. Carr can be found in Cornell’s online Supreme Court Library, here.]

Special Update:

Litigation involving the drawing of voting district boundaries made headlines on March 9, 2009, when the Supreme Court decided Bartlett v. Strickland, interpreting the Voting Rights Act of 1965. The Act deals with an entirely different kind of diminution of voting power through boundary setting. The Act was designed to make certain that districts containing a substantial number of minority voters would not be carved up and affixed to predominantly white districts, thus making it very difficult to elect minority legislators.

In Bartlett, as a result of migration and other neighborhood changes, a district that had formerly been a geographically compact black majority district now was found to contain less than 36% black voters. The State of North Carolina gerrymandered the boundaries of the district to bring the concentration of black voter up to 39.36%, with the intention of complying with the Act and the expectation that black voters and “cross over” voters could still elect candidates preferred by the black voters. In a 5 to 4 decision, the Court ruled that the protections [of Section 2] of the Act apply only to districts that contain a 50% or greater majority of black voters. In other words, districts with less than a majority of minority voters can be carved up in a diminution of the minority sector’s power. The rationale the Court gave was that, more or less, we are now basically in a “post-racial” society.

The issue in Bartlett was substantially different from the issue in Baker. In fact, the Court in Bartlett does not even cite the Baker case. Baker was a constitutional case in which the plaintiff claimed that his voting power was diluted because he was in a very populous district that elected the same number of legislators (one) as far less populous districts. In Bartlett, no constitutional rights were allegedly violated. Instead, the issue was one of statutory construction.

March 18, 1963 – The U.S. Supreme Court Decided Gideon v. Wainwright

Clarence Earl Gideon was an indigent defendant charged with a noncapital felony in Panama City, Florida. He asked the court to appoint and pay for counsel, but was denied on the ground that the state law authorized appointment of counsel for indigent defendants in capital cases only. He then conducted his own defense, was convicted, and sentenced to imprisonment. He applied to the Florida State Supreme Court for a writ of habeas corpus on the ground that without the benefit of counsel, his trial in state court did not meet the standards of due process guaranteed him under the Fourteenth Amendment of the Federal Constitution. (A writ of habeas corpus challenges the legality of imprisonment.) The State Supreme Court denied all relief, and his appeal eventually reached the U.S. Supreme Court.

The Supreme Court, by Justice Hugo Black, held that “The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment. The Court’s earlier precedent of Betts v. Brady, 316 U.S. 455 (1942), was overruled.

Justice Hugo Black

The Sixth Amendment, which guarantees “In all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defense,” applies only to the Federal government, not to the states. Moreover, it does not say who is to pay for such counsel. Gideon argued (as had the defendant in Betts before him) that the Fourteenth Amendment incorporated the rights enumerated in the first eight amendments, and applied them to the states.

The facts in the Betts case were substantially the same as those in Gideon. But in Betts, the Court reasoned:

“The Sixth Amendment of the national Constitution applies only to trials in federal courts. The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment, although a denial by a State of rights or privileges specifically embodied in that and others of the first eight amendments may, in certain circumstances, or in connection with other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth. Due process of law is secured against invasion by the federal Government by the Fifth Amendment, and is safeguarded against state action in identical words by the Fourteenth. The phrase formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. …”

The Betts Court traced the history of the right to counsel under common law. It showed that before the 18th century, defendants in cases of treason and some other felonies had no right to consult with counsel, whether they could afford one or not. The Court observed:

“In the light of this common law practice, it is evident that the constitutional provisions to the effect that a defendant should be ‘allowed’ counsel or should have a right ‘to be heard by himself and his counsel,’ or that he might be heard by ‘either or both,’ at his election, were intended to do away with the rules which denied representation, in whole or in part, by counsel in criminal prosecutions, but were not aimed to compel the State to provide counsel for a defendant. At the least, such a construction by State courts and legislators cannot be said to lack reasonable basis….[W]e cannot say that the [Fourteenth] Amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.”

By the time the Gideon case reached the Court, a sea change in the perception of what constitutes fairness had occurred. Twenty-two states filed briefs supporting the overruling of Betts. The Court agreed.

Justice Black, writing for a unanimous Court, reasoned that “the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment.” As in Betts, the Court refrained from explicitly incorporating in the Fourteenth Amendment all the rights enumerated in the Bill of Rights—it limited incorporation to those “which are fundamental safeguards of liberty.” But it clearly found that counsel appointed and paid for by the court was one of those fundamental safeguards. Justice Black wrote: “reason and reflection require us to recognize that, in our adversary system of criminal justice, any person haled [sic] into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.” What had become obvious in 1963 had not been so obvious in 1942.

A 1964 book, Gideon’s Trumpet, by Anthony Lewis, told the story of the case, and a made-for-TV movie based on the book was released in 1980, starring Henry Fonda as Clarence Earl Gideon and José Ferrer as Abe Fortas, who represented Clarence Earl Gideon’s appeal before the Supreme Court.

March 9, 1964 – The Supreme Court Decided New York Times Co. v. Sullivan

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a United States Supreme Court case that established the “actual malice” standard for cases of defamation brought by public officials or public figures. It is a key decision enhancing freedom of the press. The actual malice standard requires the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the defamatory statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, such cases—when they involve public figures—rarely prevail.

Taylor Branch, writing in Parting the Waters, explains the circumstances that led to the Supreme Court case. In 1960, Martin Luther King, Jr. was arrested on income tax charges in Alabama following a new wave of lunch-counter sit-ins. In New York, the Committee to Defend Martin Luther King and the Struggle for Freedom in the South bought a full-page ad in The New York Times that ran on March 29. The ad, according to Branch, “followed capsule descriptions of official reactions against the sit-ins with a brief history of the efforts to prosecute and intimidate King.” The ad maintained that King’s perjury indictment was part of a Southern strategy “to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.”

Montgomery, Alabama Police Commissioner Sullivan demanded a retraction, and when he did not get a satisfactory response, he filed a libel action against the newspaper and four ministers listed on the ad as endorsing it. Sullivan claimed that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.

The Times maintained that the case against it was brought to intimidate news organizations and prevent them from reporting illegal actions of public employees in the South as they attempted to continue to support segregation.

The Sullivan case put the Court in a delicate political situation. Branch observed: “Eventually, the Justices of the U.S. Supreme Court avoided the racial content of the facts by inventing a new standard of law. To do so, they redefined the legal concept of defamation in a case that mentioned no names, and based the standard of allowable news reporting on a paid advertisement that was touched by no reporter and never passed through a newsroom.”

According to Lawrence Tribe in American Constitutional Law, the Supreme Court took as its premise “the central meaning of the First Amendment” found by previous rulings to be a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open….” Tribe noted that in Sullivan, “first amendment principles were violated not by some state official’s act of censorship but by the overall shape of the state’s body of judge-made rules…” (103 Harv. L.R. 1, 26, 1989).

Justice William Brennan

Justice William Brennan, writing for a unanimous Court, ruled against Sullivan, holding that “[a] State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.“ Or, as the Court said in 1941, “[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”

(The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The First Amendment was originally addressed only to action by the Federal Government. The Fourteenth Amendment applies the First Amendment’s restrictions to the States.)

The Court concluded that a public official bringing a libel suit must establish that the defamatory statement was directed at the official personally, and not simply at a government unit. It also held that all defamation claims of aggrieved public officials must be examined closely to forestall what would otherwise be a back door to official censorship.

Additionally, to remove the inhibitory effect of defamation laws, the Court created a constitutional privilege for good faith critics of government officials. Public officials must prove a statement was made with “actual malice” – that is, knowledge that it was false or with “reckless disregard” for its truth or falsity. Tribe avers “Implicit in this rule is the proposition that the first amendment establishes a right to speak defamatory truth….”

Subsequent cases have limited the scope of the Sullivan decision to actions by public officials for defamation regarding their official actions. A more relaxed standard of proof applies to actions by private persons.

Review of “Dred Scott and the Problem of Constitutional Evil” by Mark A. Graber

Mark Graber begins his book with the observation that legal scholars almost universally proclaim that the Dred Scott decision was wrong. To the contrary, Graber argues that “the result in Dred Scott v. Sandford may have been constitutionally correct….” (For an analysis of this decision, see our previous post here.) The consensus that it was wrong, Graber suggests, inhibits a serious discussion of the problem of constitutional evil. Specifically, he contends that the Constitution represented a bargain made between the North and the South, and the South understood that bargain as one that would protect its interests as slaveholders. What is the proper response, Graber asks in this book, to a constitution that secures a practice considered to be evil?

Somewhat bizarrely, Graber writes as if the only parties having an interest in Constitutional interpretation in the antebellum United States were the white anti-slavery and white pro-slavery adherents. He delineates the pros and cons of different methods of compromise that could have made both parties happy or at least non-bellicose, always with the end in mind of the best way to preserve the peace, rather than a consideration of what was happening to black people.

Lincoln, he writes, “failed the Constitution” because he chose to promote justice over peace. People are inherently diverse, Graber observes, so that “[f]inding grounds on which these people can live together – not implementing some vision of justice – is the fundamental constitutional task.”

It never seems to occur to Graber, infatuated with abstract theories as he is, that this diverse people included those of color; that men, women and children had their lives stolen from them; they were not only forced to work at hard labor for no wages whatsoever; they were also branded, shackled, raped, mutilated, whipped, and beaten. Families were routinely torn asunder, either for economic reasons or just for punishment. Slaves, with rare exceptions, were not allowed to be educated. Free blacks were often treated as if they were potential slaves, and certainly if they did not have papers on them establishing their status as free, they were subject to becoming enslaved. Many in the north were against slavery not because they loved blacks but because they hated them; they did not want free blacks to live amongst them.

Graber in fact argues that John Bell, the compromise candidate in 1860, was probably a better choice than Lincoln because he was more interested in compromising with the South so as to keep the peace. Lincoln, he maintains, by being unwilling to find a middle ground between the right and the wrong, was not really protecting the Union. But, as Lincoln emphasized, he wanted a Union worth protecting. As he said in Peoria in 1854:

Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution. Let us turn slavery from its claims of “moral right,” back upon its existing legal rights, and its arguments of “necessity.” Let us return it to the position our fathers gave it; and there let it rest in peace. Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it. Let north and south—let all Americans—let all lovers of liberty everywhere—join in the great and good work. If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations.

I approached this book with interest, because I agree with much of what Stephen Douglas and Justice Roger Taney contended about the actual intentions of the Founding Fathers. I.e., when they referred to “we the people” they were referring to “we, the white, property-holding male people.” But Lincoln’s brilliant co-optation of the words used by the Founders – his insistence that this country live up to the words that comprise the compact agreed to in 1787, was a stroke of lawyerly genius that could not be gainsaid by the South. Graber, on the other hand, who also finds that Douglas and Taney were not entirely in error, takes a different approach. He insists that, if it turns out that a Constitution, or compact, has, by necessity, encompassed evil, then it is incumbent upon the signatories of that compact to respect the conditions and expectations by which that document was signed.

In 1787, the South had the expectation that it would always have a measure of control over the federal government. Southerners believed that population growth would occur in the southwest rather than the cold, inhospitable north and northwest. Therefore, Southerners with their “three-fifths” bonus headcount for each slave, would always outnumber northerners in both the House and Senate. Indeed, certain states, such as South Carolina and Georgia, may never have signed the compact had they not thought they could always protect the institution of slavery.

Northerners did not pay as much attention to the issue as they should have; they expected slavery to die out, especially since they had succeeded in getting a provision inserted into the Constitution allowing for (but not guaranteeing) anti-slave trade legislation after twenty years. [But even at the end of the Revolutionary War, American treaty writers were forced to point out that mulattoes also counted as negroes for purposes of returning purloined “property” to the United States. In other words, even then, Northerners knew that white Southern men were “creating” enough of their own slaves for the slave trade not to be a huge factor in generating more “property.”]

Graber maintains that for Northerners not to find more grounds for consensus with Southerners was a violation of the terms of the contract they believed they were signing. John Bell’s compromises might have avoided the Civil War. Lincoln’s insistence on justice, so troublesome for Graber, resulted in over 600,000 dead. But also, it resulted in the end of human bondage. It resulted in millions of people, brought over to this country against their will, to be free of the living hell that took their lives away from them as well as their freedom. Is this a “Constitutional evil” worth fighting for? Dare anyone contend it is not?

March 6, 1857 – The Supreme Court Issued the Dred Scott Decision

The Supreme Court decision Dred Scott v. Sandford was issued on March 6, 1857. Dred Scott was a slave from the state of Missouri. He sued for his freedom, alleging that he had been brought by his master to a free state (Illinois) and a free territory (Wisconsin), where slavery was prohibited. He claimed that the time he spent on free soil made him a free person. He claimed jurisdiction in federal court under the “diversity of citizenship,” provision of the Constitution, which permits citizens of one state to sue citizens of another state in federal rather than state court. The opinion, delivered by Chief Justice Roger Taney, declared that all people of African ancestry, whether slave or free, were not citizens of the United States. Therefore no Negro had the right to bring suit in Federal courts taking advantage of the “diversity of citizenship” jurisdiction. In addition, the decision declared that the Missouri Compromise (restricting slavery in certain new territories) was unconstitutional and that Congress did not have the authority to prohibit slavery in the territories. Therefore, the time Scott spent in a free territory was of no legal significance. The Dred Scott decision was overturned by the 13th and 14th Amendments to the Constitution.

Justice Roger B. Taney

Justice Taney wrote:

“The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

The language of the Declaration of Independence is equally conclusive: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.’

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

[The Framers] spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.”

The meaning and intent of the Declaration is an extremely important and interesting question, one that was debated extensively by Stephen Douglas and Abraham Lincoln.

Douglas maintained that “when [the Founders] declared all men to have been created equal – that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain – that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness. The Declaration was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country.”

Lincoln disagreed. Speaking in Springfield, Illinois on June 26, 1857, Lincoln declared:

“Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that “all men are created equal” was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.”

It is not at all clear whose interpretation of the Declaration is correct, that of Douglas and Taney, or that of Lincoln. But Lincoln’s vision, invoking the better angels of the Founders as well as all of us who followed, has prevailed.

[The text of the Dred Scott decision can be found in the wonderful online Supreme Court Collection at Cornell's Legal Information Institute, here. The words spoken by Douglas and Lincoln cited above can be found, among other places, in Lincoln in Peoria, by Lewis Lehrman.]

March 3, 1879 – Belva Lockwood Becomes the First Woman Admitted to Practice Before the Supreme Court

Belva Ann Bennett Lockwood, born in 1830in New York, was an amazing early feminist who was not only the first woman to practice before the U.S. Supreme Court but also the first woman to run for U.S. President.

At age 22, Lockwood was widowed and left with a three-year-old daughter. She went to college, taught school, and moved to Washington, D.C. for better opportunities. She married again to an elderly man, but her second husband’s health failed, and she was forced to become the breadwinner. She opened a coeducational private school and began to explore the study of law.

Around 1870 Lockwood applied to the Columbian Law School in the District of Columbia. The trustees refused to admit her as they believed she would be a distraction to male students. Lockwood finally was admitted to the new National University Law School (now the George Washington University Law School) along with several other women. Although she completed her coursework in May 1873, the law school was unwilling to grant a diploma to a woman.

Without a diploma, Lockwood could not gain admittance to the DC bar. After a year she wrote a letter to the President of the United States, Ulysses S. Grant, appealing to him as president ex officio of the National University Law School. She asked him for justice, stating she had passed all her courses and deserved to be awarded a diploma. In September 1873, within a week of having sent the letter, Lockwood received her diploma. She was 43 years old.

Lockwood was admitted to the DC bar, but had to struggle constantly with prejudice against women. One judge lectured her and told her that God Himself had determined that women were not equal to men and never could be. (And actually she was more than equal, considering that she had two marriages and had two children in addition to her studies and demanding career.)

Between 1873 and 1885 Lockwood was recorded as attorney in 100 equity court proceedings. Half of her courtroom equity work involved divorce actions. As a woman attorney, she attracted female clients and represented wives as complainants against defendant-husbands. She also worked up untold numbers of bills of sale, deeds, and wills. By 1875 she had begun to attract clients charged with more serious crimes, representation that brought her before the judges of the criminal division of the D.C. Supreme Court. From 1875 to 1885 she represented at least 69 criminal defendants in this court. She won “not guilty” decisions in 15 jury trials and submitted guilty pleas in nine. She handled most of these cases on her own with only an occasional male co-counsel.

Belva Lockwood

As Lockwood built her practice and won cases, even her detractors began to regard her as competent. But because her practice was limited in the 1870s due to social discrimination, Lockwood drafted an anti-discrimination bill to have the same access to the bar as male colleagues. She single-handedly lobbied Congress until that body passed “An Act to relieve certain legal disabilities of women,” an effort that a reporter described as having required “an unconscionable deal of lobbying.” Lockwood agreed, writing later that to succeed, “nothing was too daring for me to attempt.”

In 1879, Congress finally passed the law, which was signed by President Rutherford B. Hayes. It allowed all qualified women attorneys to practice in any federal court. Lockwood was sworn in as the first woman member of the U.S. Supreme Court bar on March 3, 1879. Late in 1880, she became the first woman lawyer to argue a case before the U.S. Supreme Court.

In 1884 Lockwood became the first woman to run a full-fledged campaign for the presidency of the United States. Jill Norgren (author of a biography on Lockwood), writing in The National Archives Prologue Magazine, explains that “She believed that her bid for the presidency would help women gain the right to vote and to be accepted into partisan politics. She could not vote, she told reporters, but nothing in the Constitution prevented men from voting for her. She outlined a 12-point platform, later refined and presented as 15 positions on a broad range of policy issues including foreign affairs, tariffs, equal political rights, civil service reform, judicial appointments, Native Americans, protection of public lands, temperance, pensions, and the federalization of family law.”

Lockwood won fewer than 5,000 votes but was not discouraged. When she ran for the presidency for a second time in 1888, she told reporters, “Men always say, ‘Let’s see what you can do.’”

Norgren observes that “Lockwood was a self-assured woman who exuded ego. She insisted on the right to prove herself, and she adopted bold positions in support of equal opportunity for women. … Lockwood rejected dependency, for herself and for other women, and did not hesitate to confront the male establishment that kept women from voting and from professional advancement.”

In later life, Lockwood balanced a career in law with tours on the lecture circuit, speaking out for women’s suffrage and equality. In 1906, in a multiparty case, she represented the Eastern Cherokee in their appeal before the U.S. Supreme Court. This time, unlike her first appearance before the Supreme Court, she made a successful argument, and her clients shared in a multimillion dollar settlement.

Lockwood believed strongly in working for world peace. She co-edited a journal called The Peacemaker, and she belonged to the Universal Peace Union; she was one of its representatives at an exposition held in Paris in 1889. She was also a delegate to an International Peace Congress in London in 1890. She continued to speak on behalf of peace and disarmament to the year of her death in 1917.

March 2, 1824 – The U.S. Supreme Court Decided Gibbons v. Ogden

U.S. Supreme Court Chief Justice John Marshall had the amazing job of helping to define the constitutional law of the early United States. In this case, he wrestled with the scope of the power of Congress to regulate economic activity.

Article 1, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, provides that “Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

The State of New York had granted to Robert Fulton a monopoly to operate steamboats in its navigable waters. Fulton then sublicensed that power to Aaron Ogden to operate steamboats between New York and New Jersey. Prior to the grant by New York, the U.S. Congress had licensed Thomas Gibbons to operate steamboats between New York and New Jersey.

Gibbons sought to have the New York grant of monopoly declared unconstitutional as repugnant to the Commerce Clause, and the Supreme Court agreed.

Importantly, Justice Marshall prefaced his ruling by a discussion of how to interpret the Constitution. He asked, should the words of the Constitution be construed strictly? If so, the federal Government would be denied power over issues that were not specifically enumerated in the Constitution. Marshall insisted “that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; … we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.”

But to decide the case, Marshall confronted another problem: the meaning of the words used in the Constitution. Language is imperfect, so sometimes one needs to resort to the context in which the words were used.

Chief Justice John Marshall

Marshall mused that “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.” He noted that historically, the Union has exercised power over navigation, and this power “has been understood by all to be a commercial regulation [emphasis added].”

“It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The [Constitutional] convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late.”

Continuing to parse the Commerce Clause, Marshall opined that “among” suggests commerce that concerns more than one state, so that internal commerce of a state may be considered reserved for the state itself.

He then turned to the word “power.” The power to regulate was deemed to be the power to prescribe the rules by which commerce is to be governed. The power, although though “limited to specified objects, is plenary as to those objects.” He reasoned that once we conclude that Congress had the power to regulate transactions that passed from one state to another, the power of Congress, then, “comprehends navigation, within the limits of every State in the Union, so far as that navigation may be in any manner connected with ‘commerce…among the several States….’ It may, of consequence, pass the jurisdictional line of New York and act upon the very waters to which the prohibition now under consideration applies.”

Marshall further observed, “In our complex system, presenting the rare and difficult scheme of one General Government whose action extends over the whole but which possesses only certain enumerated powers, and of numerous State governments which retain and exercise all powers not delegated to the Union, contests respecting power must arise.”

But, he pointed out, the Framers foresaw this conflict, “and provided for it by declaring the supremacy not only of itself, but of the laws made in pursuance of it.…[T]he [Federal] Constitution is the supreme law.”

The case is important not so much for its narrow holding [that “commerce” includes navigation], but for the Court’s expansive reading of the Commerce Clause. Although Congress did not soon enact extensive regulation, the Gibbons case laid the constitutional foundation for significant expansion of the federal government into economic activity more than 100 years later.