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									The Impact of the Court

       PSCI 2481
        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 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.
             Two Traditions
Conservative Tradition    Liberal Tradition
• Courts should stand     • Courts should defend
  as a bulwark to           individual liberties and
  safeguard property        civil rights against
  rights, privilege and     government intrusion.
  preferred status.       • Judicial review is
• Judicial review is        necessary to uphold
  necessary as a veto       civil liberties against
  over legislative          the arbitrary and
  attempts to dominate      zealous acts of
  government.               executive officials.
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
         Judicial Review

• Judges have used this power very
• The power has only been used about
  140 times (in 200 years) to strike
  down acts of Congress.
• Although the USSC has acted more
  frequently (over 1200 times) to
  invalidate acts of state legislatures.
     Supreme Court “Activism”,
          by Chief Justice
              Chief         Prior        Acts of      State
              Justice       USSC       Congress        Law
                          Overturned   Overturned   Overturned
1801 - 1835   Marshall      0.09         0.03          0.51
1836 - 1864   Taney         0.14         0.03          0.72
1865 - 1873   Chase         0.44         1.11          3.67
1874 - 1888   Waite         0.87         0.60          0.47
1889 - 1910   Fuller        0.18         0.64          3.32
1910 - 1921   White         0.42         1.00          8.92
1921 - 1930   Taft          0.60         1.20         13.10
1930 - 1940   Hughes        1.91         1.27          7.09
1941 - 1946   Stone         2.50         0.33          4.17
1947 - 1952   Vinson        2.17         0.17          6.33
1953 - 1969   Warren        3.21         1.79         10.71
1969 - 1986   Burger        2.89         1.89         10.67
1986-         Rehnquist     3.50         1.17          7.67
          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.
Reasons for Criticism
   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?
      Judicial Policy Making and
• All judges make 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.
   Under What Conditions Can A
       Court Have “Impact”
1. United Court
2. Unambiguous Opinion
3. Knowledge of the Court‟s decision must
   become widespread
4. Legitimacy must not be questioned. (The
   Court must be seen as the proper institution to
   issue a decision.)
5. The decision must be enforceable and
   enforced by those who have the power to do
A Powerful or Powerless
    The Supreme Court in a Hostile
  Environment: The case of Bob White
The “Facts”
• Ruby Cochran (white) raped by a black man in her bedroom on a
  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.

• All were asked to read a statement in the presence of Mrs. Cochran.

        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
        The Trials of Bob White
• The state appointed a local attorney to defend Bob

       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 realizing that it would affect
  any future business he might do locally. Houston
  attorney J.P. Rogers stepped in the defend White. (While
  White did not have money Rogers hoped the NAACP
  would step in an help defray the cost of the defense.)
         The Trials of Bob White
Trial I:
   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 hositle community.
• 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.
      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, 1938 - The Texas Court of
  Criminal Appeals reversed the decision:
  – The environment was hostile.
  – The local court was non-responsive to the
    motions filed by Rogers.
  – The local court obstructed the appeal.
     The Trials of Bob White
Trial II:
• The trial was moved to Conroe (in the
  same judicial district).
• Judge Browder presided over the new

• The Outcome: White was found guilty
  and sentenced to death.
      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:
     1. The systematic exclusion of blacks from the jury
        did not deny White a fair trial.
     2. The refusal to provide medical evidence about the
        victim was judged not prejudicial. (White has a
        venereal disease. Ruby did not.)
     3. The “coerced” confession was not excluded since
        the jury had been instructed to discount it unless
        they believed it had been freely given.
         The Trials of Bob White
To the US Supreme Court

• The request for writ of certiorari reached the USSC on June 6,
  1939 (one day after adjournment).
• White was scheduled to die June 2, 1939 and had been moved
  to Huntsville. But the State of Texas put off the execution until
  the Supreme Court could act.
• On November 13, 1939, The US Supreme Court refused citing
  no grounds for appeal.

• 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 attorney’s hearing of this case made a
  last plea for reconsideration of his case citing the forced
        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
  informa 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 Supreme
  Court set free a man that 2 juries has convicted and who
  had confessed?
        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.
        The Trials of Bob White
Trial IV: (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
  judged innocent of murder and released.
         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)

• Argued 1952
• Argued 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.
     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.”
• Immediate reaction. Thurgood Marshall:
• How long will it take for segregation to end?
• “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”
• The decision announced did not include “relief” for the
   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,
• Cases remanded to local courts to
  supervise public school desegregation.
    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
    Brown v. Board of Education:
  The “end” of separate but equal
Public Beaches and Bathhouses      Inter-state Transportation
• Mayor and City Council of        • Boyton v Virginia, 1960
  Baltimore v Dawson, 1955
Public Golf Courses                • Turner v Memphis, 1962
• Holmes v City of Atlanta, 1955
                                   Public Parking
City Parks and Recreation          • Burton v Wilmington Parking
• New Orleans City Parks Assoc       Authority, 1961
   v. Detiege, 1958
                                   Courthouse Cafeteria
State Parks                        • Derrington v. Plummer, 1956
• Wright V Georgia, 1963
                                   Public Libraries
Intra-state Transportation         • Brown v Louisiana, 1966
• Gayle v Browder, 1956
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.
     Integrating Southern Schools:
     Black Children in Elementary & Secondary
            Schools with White Children

•   1954-55           .001% (Brown v. Board)
•   1955-56           0.12%
•   1956-57           0.14%
•   1957-58           0.15%
•   1958-59           0.13%
•   1959-60           0.16%
•   1960-61           0.16%
•   1961-62           0.24%
     Integrating Southern Schools:
     Black Children in Elementary & Secondary
            Schools with White Children

•   1962-63            0.45%
•   1963-64            1.2%
•   1964-65            2.3%
•   1965-66            6.1%
•   1966-67           16.9%
•   1967-68
•   1968-69           32.0%
•   1969-70
•   1970-71           85.9%
A System of Checks and Balances
• Why don‟t things change more quickly?
  Shouldn‟t people do what the Supreme Court
• Remember Hamilton‟s words (“Neither the
  power of the sword nor the power of the purse.”)
• And then-President Dwight Eisenhower‟s
  comment (“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?)
             Historical Events
• Can government change society?
• Kennedy Administration embraces civil rights
• 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
An “enforceable” decision?
          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
• 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.
        Gideon v. Wainwright
• Who was Clarence Earl
  – The defendant
  – Drifter - Indigent
  – Arrested for B&E (Burglary
    of pool hall & its vending
  – Tried (and convicted) w/o
    an attorney despite
    requesting one!
         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
        Gideon v. Wainwright
The Trial (August 4, 1961)
 The original case name is State vs.

 Judge Robert McCray, jr. presided over
 the trial.
     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

The Defendant: No, Sir.

The Court: Why aren‟t you ready?

The Defendant: I have no 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

The Court: Now tell us what you said again, so we can understand you,
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 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.
         Gideon v. Wainwright
US Supreme Court
• “In forma pauperis”  Miscellaneous Docket
• The case was originally called Gideon v

        H. G. Cochran          Louie Wainwright
• 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.
         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.”
         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.)
           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
• California expanded the rule to include a guarantee of
  attorney through the appeals process.
           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.
   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 23 2005), 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.”
           The Bottom Line
• Courts can have an impact on public
  – 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

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