the impact of the court psci 2481. empowering the court: judicial review judicial review is the...

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 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.

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.

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 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.

Supreme Court “Activism”, by Chief JusticeChief Prior Acts of StateJustice USSC Congress Law

Overturned Overturned Overturned1801 - 1835 Marshall 0.09 0.03 0.511836 - 1864 Taney 0.14 0.03 0.721865 - 1873 Chase 0.44 1.11 3.671874 - 1888 Waite 0.87 0.60 0.471889 - 1910 Fuller 0.18 0.64 3.321910 - 1921 White 0.42 1.00 8.921921 - 1930 Taft 0.60 1.20 13.101930 - 1940 Hughes 1.91 1.27 7.091941 - 1946 Stone 2.50 0.33 4.171947 - 1952 Vinson 2.17 0.17 6.331953 - 1969 Warren 3.21 1.79 10.711969 - 1986 Burger 2.89 1.89 10.671986 - 2005 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 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.

Under What Conditions Can A Court Have “Impact”

1. United Court2. Unambiguous Opinion3. Knowledge of the Court’s decision must

become widespread4. 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 so.

A Powerful or Powerless Court?

Three examples

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.

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.)

The Trials of Bob WhiteTrial I:

Before Judge W. B. BrowderSpecial Prosecutor Z. L. Foreman

The Defense:1. Rogers asked for the confession to be excluded. It was not.2. Rogers asked for footprint casts taken at the crime scene. They

were not provided.3. Rogers asked for a change of venue to a less hostile community.

Denied.4. 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.)

5. 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 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.

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.

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?

1. The systematic exclusion of blacks from the jury did not deny White a fair trial.

2. The refusal to permit admission of medical evidence about the victim was judged not prejudicial. (White has a venereal disease. Ruby Cochran 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 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.

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?

The Trials of Bob White

Trial III: June 10, 1941

Before Judge W.B. BrowderSpecial 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: 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.

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?

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)

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.

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.”

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”

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.

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.

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”.

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%

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

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?)

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

The Powerful Court?

POLICY

The Court in a System of Checks and Balances

POLICY

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 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.

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!

The Bay Harbor Poolroom

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”

Gideon v. Wainwright

The Trial (August 4, 1961)

The original case name is State vs. Gideon.

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 insanity?

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 Bench.

The Court: Now tell us what you said again, so we can understand you, please.

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.

Raiford Prison

Gideon’s petition to the USSC

Gideon’s petition to the USSC

Gideon v. Wainwright

US Supreme Court• “In forma pauperis” Miscellaneous Docket• The case was originally called Gideon v

Cochran.

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 previously.

• 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 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