He Calls Me by Lightning

by S Jonathan Bass

  The senior circuit judge on the panel was seventy-one-year-old Richard Taylor Rives. Decades before, in 1912, Dick Rives made his livelihood pressing pants at a small self-owned business on Dexter Avenue in Montgomery. One customer, attorney Wiley Hill (an uncle to future Alabama senator Lister Hill), sent him a note that read, “If you would like to study law, I’ll show you which books to read.” Rives never considered a legal career, but he jumped at the opportunity to read the law with Hill. At the time, young Dick Rives never suspected that his father visited Hill and asked the attorney to take the boy under his tutelage. Almost two years later, on March 13, 1914, nineteen-year-old Dick Rives passed the Alabama bar examination and joined Hill’s practice. Thirty years later, Rives was one of Alabama’s most prominent and well-paid trial lawyers, whom friends described as a neopopulist political activist with liberal leanings. During the presidential election of 1948, he remained loyal to Harry Truman while most Alabama Democrats bolted the party in favor of the Dixiecrat candidate Strom Thurmond. That same year, while Truman was losing white southern voters by advocating civil rights, Rives fought an unsuccessful personal battle to defeat a state amendment to further restrict black voting rights. “When we use arbitrary law as the basis for white supremacy,” he proclaimed at the time, “we are building on quicksand.” In paternalistic tones common to his generation, he added:

  But when we assert the white man’s leadership in terms of intelligence, character and sense of justice we are building upon a solid foundation. The chains we forge to shackle qualified Negroes can be used to keep white voters of Alabama from walking in the polls. These chains would not only breed resistance in the Negro, but for worse, would rub a moral cancer on the character of the white man.

  In 1951, Alabama’s two U.S. senators, Lister Hill and John Sparkman, convinced President Truman to nominate “loyal Dick Rives” to succeed Leon McCord as a judge on the Fifth Circuit.

  Throughout the 1950s and 1960s, Rives’s civil rights rulings stirred the “wrath and embitterment” of white citizens in Alabama. One journalist believed that these rulings left Rives a pariah in his hometown of Montgomery, where he “suffered indignity and brutality” at the hands of radical segregationists. “For all we ever saw,” a Montgomery paper reported in 1966, “Judge Rives bore his cross sorrowfully, but without flinching.”

  A decade before the Washington v. Lee case, Rives, Frank Johnson, and Seybourn Lynne sat on another three-judge panel that struck down segregated seating on municipal buses in Montgomery. The Browder v. Gayle decision was a significant and long-awaited legal victory for civil rights activists during the Montgomery Bus Boycott—although the boycott continued several more months while the city appealed the ruling to the U.S. Supreme Court, which ultimately upheld the decision. Nonetheless, the three-judge ruling was not unanimous. Seybourn Lynne cast the dissenting vote and proclaimed that “only a profound, philosophical disagreement . . . that the separate but equal doctrine can no longer be safely followed as . . . the law would prompt this, my first dissent.”

  Unlike Richard Rives, Seybourn Harris Lynne decided at an early age to become a lawyer—no doubt influenced by the fact that his father, grandfather, uncles, and several cousins were all attorneys. “It never occurred to me to be anything but a lawyer,” Lynne said. Born on July 25, 1907, in the Tennessee River city of Decatur, Lynne earned his law degree from the University of Alabama in 1930 and won a 1934 election to a judgeship in his native Morgan County. During World War II, he earned a Bronze Star and achieved the rank of lieutenant colonel in his handling of a wide variety of legal matters for the judge advocate general. Following the war, President Truman appointed him to the federal bench on January 9, 1946, succeeding the late T. A. M. Murphree.

  Lynne’s first case was a lengthy thirty-defendant white lightning moonshine trial that, as one observer noted, provided the new judge an “intensive workout the first week of his return to the civilian bench.” By 1953, he became the chief judge of the Northern District of Alabama, and his rulings during the civil rights era would define his career. During the 1950s and 1960s, one critic noted, Lynne, who ironically opposed judicial activism, designated himself as the “great deterrent to desegregation,” and his rulings time and again helped preserve the “southern way of life.” Nonetheless, in 1963, Lynne prohibited Governor George Wallace from barring two black students (Vivian Malone and James Hood) from attending the University of Alabama. “The governor of a sovereign state has no authority to obstruct or prevent the execution of lawful orders of a court of the United States,” he wrote. From the bench, Lynne preferred to deal with tax cases because they were explicit, leaving little room for interpretation. He preferred the absolute rather than cases that compelled him to ponder the intricacies of the law. “A trial judge is . . . engaged in the business of moving cases along,” he once said.

  Making an informed ruling in Washington v. Lee would not be so easy or straightforward for Seybourn Lynne or the other judges. The case would be lengthy and complex and require voluminous paperwork, much to the chagrin of Lynne. Chuck Morgan described Lynne as “bright, competent, and consistently wrong.” On the other hand, Morgan believed the prison integration case would find sympathetic jurists in Frank Johnson and Richard Rives. “Unlike many—perhaps most—judges, south and north,” Morgan wrote, Johnson and Rives “really believed in the Constitution.”

  Judge Johnson ordered the plaintiffs and the defendants to submit briefs to the court on the legal and constitutional questions involved by November 1, 1966. Seven lawyers would be representing various defendants. Sheriff Mel Bailey used the legal services of Birmingham attorneys Frank Dominick and Walter Fletcher. Warden Bob Austin used J. M. Breckenridge and Earl McBee of the City of Birmingham’s law department. Commissioner Frank Lee and the five members of the board of corrections would be defended by Richmond Flowers and assistant attorney general Gordon Madison, who would handle most of the workload. Madison, whom Flowers described as a “brilliant, experienced lawyer,” headed the federal section in the attorney general’s office. “He was constantly negotiating,” Flowers recalled. “He trusted me, and I trusted him.”

  The affable sixty-six-year-old James Gordon Madison served under five Alabama attorney generals since his appointment by Si Garrett in 1952. A native of the simple crossroads village of Denbigh, Virginia, Gordon Madison descended from an illustrious family of Virginia lawyers, who included President James Madison and a great-grandfather who studied law with Thomas Jefferson. In 1917, Gordon Madison moved to Perry County in the Alabama Black Belt. Following his graduation in 1921, he went on to earn a law degree from the University of Alabama in 1925 and began his law practice in Tuscaloosa with the firm of Foster, Rice, Madison & Rosenfeld. White Tuscaloosa voters elected him to the Alabama Senate in 1942, and he quickly gained a reputation as a hardworking and efficient leader. His efforts gained the attention of Senator Lister Hill, who tapped Madison to run his 1944 reelection bid. It would become a bruising referendum on the senator’s support of Franklin Roosevelt’s New Deal. Hill’s challenger was James Simpson, a cheerless Birmingham corporate lawyer who used white supremacy as his battle cry and, as Time magazine reported, “lambasted Lister Hill as a traitor to southern ideals, a tool of Washington’s ‘radical Yankee’ administration, a ‘rubber stamp’ for ‘C.I.O. bosses,’ [and] a typical New Dealer.” Hill, however, remained confident of victory, especially with the “clear and able” Madison running his campaign. Hill defeated Simpson by 25,000 votes. Almost immediately, speculation emerged that Madison would receive a nomination to the federal judgeship in Birmingham, but the nod went to Seybourn Lynne.

  Although he remained loyal to Hill and the Democratic Party during the political upheavals of the Dixiecrat era, Madison was no supporter of civil rights. As the head of the federal section in the attorney general’s office, he would lead Alabama’s legal opposition to civil rights throughout the 1950s and 1960s. “The people of Alabama are never going to send white
children to nigra schools,” he once told a federal judge in Montgomery, “and the sooner these Justice Department people understood that, the sooner we can give a quality education to everyone.” Nonetheless, the assistant attorney general believed in compliance with final court rulings. As an individual and as a citizen of Alabama, Madison said, he opposed integration, “but as a lawyer, I can’t say that.” Defying integration was like playing bridge, he supposed. “You play each hand so you lose as few hands as possible.”

  By the late 1960s, Gordon Madison was weary of defending the state in a storm of civil rights suits. His brief in Washington v. Lee reflected this fatigue and disillusionment. It began with the monotone announcement that the case was yet “another desegregation suit,” but this time it focused on prisons and jails. Black prisoners did not want to be segregated, Madison continued, and made note of a recent court decision that “made it unmistakably clear” that racial discrimination by government representatives would not be tolerated. Judicial intervention stopped racial discrimination in schools, housing, recreational facilities, and employment, the court emphasized in the Edwards v. Sard decision, but prisons were different. Madison jumped on this point: “Unless perhaps in extreme cases the courts should not interfere with the conduct of a prison or its discipline.” He also highlighted the Tally v. Stephens case, where the court specified that prison officials must have “wide latitude and discretion” in managing and operating a prison. “The Courts cannot take over the management of prisons,” the decision noted, “and they cannot undertake to review every complaint made by a convict about his treatment while in prison.”

  Next, Madison reviewed the fourteen sections of Title 45 of the Alabama Code referred to in the complaint, and he concluded that half of the sections made no reference to separating prisoners according to race and needed no consideration by the court. However, the other seven sections dealt with racial separation and “should be considered by the court in light of the cases cited in the brief,” especially the Edwards and Tally decisions. In other words, the state was inviting the court to rule on the Fourteenth Amendment issues of due process and equal protection.

  Madison, however, strongly disagreed with the plaintiffs’ conclusion that racial segregation of prisoners was a violation of the cruel and unusual punishment clause of the Eighth Amendment. “This contention is plainly without merit,” he wrote. Before the 1954 Brown decision, racial separation was legal throughout American society and upheld by some of the greatest jurists in the country. “If the Constitution is to be considered in the light of developing civilization,” Madison added, “a good long look should be taken of present day events in this country before any new or novel constitutional pronouncements are made by this court.”

  In response, Chuck Morgan submitted his twenty-one-page brief on October 31. In it, he argued that Alabama’s prison segregation statutes violated the cruel and unusual punishment clause of the Eighth Amendment and the due process and equal protection clauses of the Fourteenth Amendment. “The underlying legal principles seem not contested,” he added, because states could no longer constitutionally mandate segregation in the public sphere. The principle within the Brown decision extended to all state institutions. The central issue before the three judges was whether there was any reason to exclude jails and prisons from the “broad proscriptions” of the law. “There are none,” Morgan wrote, and the “compelling need” in the case was a “speedy and effective” integration of the state’s correctional facilities.

  Morgan rejected the defendants’ notion that prison officials maintained racial segregation for prison security and discipline. This was not a case that involved a fight between inmates or disciplinary action taken by prison officials. “Plaintiffs have broken no prison rules of any kind,” he added. This case was about “statutory segregation” in prisons and jails in Alabama, and race-based separation was unconstitutional in any form. Justifying racial segregation as a way to avoid violence was a well-worn position of whites who opposed integration. The prophets of segregation predicted “blood flowing in the streets” if public schools were integrated, but there were few violent incidents. They argued that the integration of lunch counters and restaurants would bring “thorough-going” racial violence because community standards were too deeply entrenched “to be touched by a mere external act of the government.” But after integration, Morgan wrote, southerners discovered that the real problem was “the fear and distrust that the old custom of separation had created and preserved.” In fact, the attorney supposed, segregationists predicted that every public meeting between whites and blacks would bring violence and discord, but these “prophecies proved empty” too. “Violence is not the child of integration,” Morgan argued, but “the child of distrust and fear.”

  Therefore the “threat of violence and disorder is not pertinent,” Morgan wrote. “Even if desegregation of Alabama’s penal institutions were to inevitably occasion some racial disturbance, no grounds exist to deny Negroes their constitutional right to be free from racial segregation.” Maintaining separation by race did nothing to prepare inmates for life outside the walls of prison in an integrated society. The former white prisoner was unprepared to face this reality because he came from a world where he learned that blacks and whites could never live together because the differences were too pronounced. “This is sinister and even cruel preparation for men who must learn to live in a society struggling to solve racial problems,” Morgan emphasized. Black inmates in Alabama prisons and jails received a reverse education, he argued, and learned only disrespect for the rule of law and resentment over the unfairness created by unjust laws—especially Jim Crow laws that forced a prisoner “to live in segregated quarters, eat in a segregated dining room, sleep in a segregated cell block, exercise in a segregated prison yard, work on a segregated work detail and worship in a segregated prison chapel.” By maintaining segregated prison facilities, the state of Alabama denied the “elemental concepts of decency,” depreciated the “dignity of man,” and violated the cruel and unusual punishment clause of the Eighth Amendment. “The history of civil rights legislation and the decisions of the courts,” Morgan emphasized, “makes it too plain for argument that the practice of racial discrimination is a violation of the fundamental concepts of American democracy and the commitment of that democracy to the belief in the dignity and sanctity of each citizen.”

  In the end, Morgan believed the court should declare unconstitutional the sections of the code that required segregation and order the state to take affirmative steps to integrate.

  On November 29, 1966, Chuck Morgan and Gordon Madison presented oral arguments before judges Johnson, Rives, and Lynne in Montgomery. Morgan’s key expert witness was John O. Boone, who worked for fourteen years at the Atlanta Federal Penitentiary and conducted a lengthy study of prisons in the Deep South for the Southern Regional Council. On cross-examination, Madison asked Boone to discuss the integration process at the federal level. “How long did it take?” he asked.

  “Overnight,” Boone answered. He testified that when the process of integrating a prison was handled well, racial tensions and violence decreased.

  The assistant attorney general then tried to get Boone to agree that federal prisoners and state prisoners were completely different types of criminals.

  “I have met some of your ex-inmates,” Boone said. “In fact, I have encountered hundreds and hundreds of them in federal prisons.”

  “Are not the type of prisoners usually found in federal penal institutions different?” Madison continued.

  Boone said no.

  “[Different] than those in state [prisons]?” Madison asked.

  “No, sir,” the witness said, “they are the same men.” Boone showed, much to Madison’s dismay, that former Alabama inmates were serving time in desegregated federal prison without any of the prophesized bloodshed.

  Attorney Madison had no better luck questioning the state’s witnesses. Birmingham Jail warden Rober
t Austin testified that in his experience integration “created no problems” with respect to trusties, work gangs, farm crews, and maintenance crews. He added that he did not “foresee much problem” in integrating the Birmingham Jail, except in the drunk tanks.

  Jefferson County sheriff Mel Bailey, whom Morgan described as “too wholesome to be real and too outsized to argue with,” echoed similar themes. At over six-foot-five, Bailey’s country-boy innocence masked an intelligent and unflappable lawman. The sheriff was up for reelection in 1966 and courting black voters, so he provided only limited answers to Madison’s questions. But when Judge Johnson asked, “Is there any instance in your experience where it is necessary to classify solely because of race . . . in order to maintain and operate your prison properly?” Bailey said, “I would have to say no.” The state’s witness admitted that segregation was unnecessary for maintaining safety and order in an Alabama jail.

  This was a key point of emphasis when Johnson, Rives, and Lynne handed down their unanimous ruling on December 12, 1966. In writing the opinion, Judge Johnson pointed out that this notion of maintaining “routine prison security and discipline” was the state’s only defense in refuting that the prison segregation statutes violated the equal protection clause of the Fourteenth Amendment. “We disagree,” he wrote. Prisoners forfeited many privileges and rights upon being incarcerated. However, the judges emphasized, due process and equal protection “follow them into prison and protect them from unconstitutional action on the part of prison authorities carried out under color of state law.” Johnson gave as an example the drunk tank in the Birmingham Jail, which might get so crowded on Saturday nights that the warden might need to separate the races. The recognition of these special situations did nothing to justify those sections in the Alabama Code and the general practice of separating the races arbitrarily. “Such statutes and practices must be declared unconstitutional,” Johnson stressed.