Gideon's Trumpet

by Anthony Lewis

  Most of the law under which an American lives is the law of his state. His marriage, his property, his will are all governed by state law. If he gets into a lawsuit about a business contract or a real estate deal or an automobile accident, the result will ordinarily be determined by state law—law laid down in state and local statutes and by the decisions of state courts.

  Cases of this kind, which are brought by the hundreds of thousands in the United States every year, are almost all tried by state courts. They can get into the federal courts only in one circumstance—if they are suits between citizens of different states. This diversity-of-citizenship jurisdiction of the federal courts, as it is called, was included in Article III of the Constitution to protect out-of-state litigants from prejudice in the local courts: The Vermonter involved in a lawsuit in South Carolina could hope for more impartial justice from a federal judge. But in diversity-of-citizenship cases federal courts must apply state statutes and state decisions; if state courts have held that a certain kind of oral contract is binding, the federal judge hearing a diversity case on that issue must follow the same rule, no matter how wrong-headed it may seem to him. The Supreme Court so held in 1938, brusquely overruling a hundred-year-old precedent that allowed federal courts to ignore state-court decisions in diversity cases.

  On the pervasive issues of state law the Supreme Court has absolutely no power to revise the decisions of state courts. When the Supreme Judicial Court of Massachusetts rules that an automobile driver was negligent, he has no recourse on that issue in the Supreme Court of the United States. The same is true of most rulings in most criminal cases. A state court’s decision of a claim that certain evidence was inadmissible as hearsay is not reviewable in the Supreme Court. Thus the Supreme Court never has anything to do with the vast majority of cases decided every year by courts across the country. Of the more than 10,000,000 cases tried in American courts every year, no more than 300,000 are appealed at all, and only 2,500 or so are taken to the Supreme Court.

  The decisions which the Supreme Court can and does re-examine are those involving questions of federal law. The question might be the meaning of a Congressional statute—whether, for example, the Taft-Hartley Law permits a union to picket in a certain way. It might be a question of the right of an injured seaman or railroad worker to recover damages under federal statutes that protect these occupations because they are in maritime and interstate commerce. It might be a treaty question: Does an agreement with Canada to protect a species of migratory birds override a state game law declaring open season on them? Or, not least, it might be a question arising under the Constitution—whether, for example, a man had been convicted of crime in a trial so unfair that it could not be called “due process of law.” That was Gideon’s case.

  The Gideon case illuminates a curious and vital aspect of the American legal system. This is that many issues of federal law arise in the state courts. If all questions of federal law were confined to federal courts, life would be simpler for law students and judges. But it is easy to see that they cannot be so confined. When a state judge is asked by a struck company to enjoin the union’s picketing, the union lawyer will doubtless argue that federal law—the Taft-Hartley Act—forbids a state-court injunction; then the judge has to become for the moment an expert on federal legislation. When Clarence Earl Gideon stood up and said that the Constitution entitled him to a lawyer, the trial judge in Panama City and then the Supreme Court of Florida had to pass on his federal claim.

  When state courts decide issues of federal law, the Supreme Court has power to review their decisions. But that power was not always taken for granted. It was, in fact, one of the first great issues of federal-state conflict in this country. Some states and their courts, arguing from what today would be called a states’-rights position, bitterly resisted such review by the Supreme Court as an intrusion on their independence.

  The Constitution made clear that federal law, within its sphere, was superior to state law and had to be applied by state courts. Article VI provided: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The states’-rights argument was that the highest court of each state should be relied upon to interpret and apply the federal Constitution, laws and treaties, free of any supervision by national authority. The First Congress thought otherwise; one of the very first statutes it enacted, the Judiciary Act of 1789, explicitly gave the Supreme Court of the United States (which did not yet exist) jurisdiction to review state-court decisions on federal questions. But still there was resistance.

  The issue came to a head in 1816, in the great case of Martin v. Hunter’s Lessee. The dispute was basically about the ownership of lands in Virginia, but it turned on whether title was determined by an old Virginia statute or by the Jay Treaty of 1794 between the United States and Britain. The Virginia court said the state statute ruled. The Supreme Court reversed that judgment, saying the treaty must prevail. The Virginia court then simply refused to comply. Under the bitter leadership of its presiding judge—Spencer Roane, a friend of Jefferson and like him an implacable enemy of their fellow Virginian, John Marshall, the great Chief Justice of the United States—the Virginia Court of Appeals unanimously resolved “that the appellate power of the Supreme Court of the United States does not extend to this court.…”

  When that resistant decision was taken to the Supreme Court, Chief Justice Marshall did not sit; he had a claim to some of the lands in dispute. The opinion of the Court was written by Justice Joseph Story, first in a line of Massachusetts scholars (he continued to lecture at Harvard while a justice) to serve on the Supreme Court, who was just thirty-two years old when appointed in 1811. Justice Story, for a unanimous bench, reaffirmed the constitutionality of the Supreme Court’s jurisdiction over state-court decisions on issues of federal law. His opinion dipped deep into governmental philosophy to answer the states’-right argument.

  “A motive perfectly compatible with the most sincere respect for state tribunals,” Justice Story wrote, “might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity, of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the Constitution.

  “Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the Constitution itself; if there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties and the Constitution of the United States would be different in different states and might, perhaps, never have precisely the same construction, obligation or efficacy in any two states.

  “The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they would have escaped the enlightened convention which formed the Constitution. What, indeed, might then have been only prophecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils.…”

  It is no exaggeration to call the decision in Martin v. Hunter’s Lessee an essential ingredient in the survival of the United States as a nation. For what was still to a large extent prophecy when Justice Story wrote in 1816 has since become fact many times: The states and their courts have interpreted the federal Constitution and laws in different ways, jarring and discordant, and it has required the Supreme Court of the United States to harmonize the decisions into uniformity. Again and again there have arisen those who would challenge the Court’s power to interpret and apply to every state and every section “the supreme Law of the Land”; for examples one need look no farther back than Oxford, Mississippi, and Little Rock, Arkansas. Without that unifying judicial power it is doubtful that a great federal union c
ould have been created on this continent, and preserved.

  All this discussion is by way of indicating that so abstract-seeming a question as the jurisdiction of the Supreme Court may involve great issues of policy and power in the real world. For the purposes of Gideon’s case, history had settled the question. There were still many evidences of resentment, on the part of state judges and other officials, of Supreme Court review, especially in criminal cases such as Gideon’s. But the case was unquestionably within one of the constitutional categories of Supreme Court jurisdiction. The Court had power under the Constitution to review the Florida judgments that kept Gideon in prison.

  But that was only the first of many obstacles that Gideon had to overcome. Over the years other limits on the Court’s jurisdiction have been developed, by Congress and the Court itself, with the aim in part of minimizing state objections to Supreme Court scrutiny.

  One statute provides that the only state-court decisions reviewable in the Supreme Court are “final judgments or decrees rendered by the highest court of a State in which a decision could be had.” The purpose behind this requirement is evident. Proper respect for the judicial system of a state demands that it be allowed to complete its processing of a case before the federal Supreme Court steps in; intervention from Washington is not justified to correct some preliminary ruling, or one that may still be reversed by higher state courts. It should be noted that the “highest court” rule does not prevent the Supreme Court from reaching down to the bottom rung of a state judicial ladder when that is the highest level at which a decision “could be had.” In 1960 the Court reviewed a judgment of the Police Court of Louisville, Kentucky, imposing two ten-dollar fines on one Sam Thompson. “Shuffling Sam,” as the newspapers called him, had been convicted of loitering and disorderly conduct after the police found him shuffling in a café. Under Kentucky law, fines under twenty dollars could not be appealed to any state court, so Sam Thompson’s lawyer went directly to the Supreme Court of the United States. There the convictions were found unconstitutional—in violation of the Fourteenth Amendment’s due-process guarantee—because there was absolutely no evidence to support them.

  A person with a federal claim on which he may eventually want the Supreme Court to pass must raise that claim at the earliest possible moment in a state court proceeding. The Supreme Court, again in deference to the states, will not consider federal issues injected into a lawsuit as an afterthought or as a desperate measure by someone defeated on the battlefield of state law. But if a state appellate court agrees to hear, and actually decides, a federal claim raised late, then the state has in effect waived any objection to tardiness and the rule does not apply.

  Finally, among these requirements designed to pay proper respect to state judicial systems, there is the rule that the person with a federal claim must follow procedures generally applicable in the state courts. If he filed his state appeal two weeks after the deadline and the state supreme court threw his case out for that reason, it does not matter how compelling his basic argument on federal law may be; the Supreme Court will not hear it. Once more there is a logical exception to the rule: If a state court applies its procedural requirements in a way that discriminates against parties claiming federal rights, an alleged procedural flaw will not be permitted to bar review in the Supreme Court. The Alabama Supreme Court dismissed an appeal by the National Association for the Advancement of Colored People on the ground that the N.A.A.C.P. had used the wrong form of writ. But the United States Supreme Court found that the Alabama judges had never applied such a rule before and had evidently devised it just for the N.A.A.C.P.; the Court put aside the Alabama findings and took jurisdiction of the case. State courts, said Justice Holmes in 1924, may not in their procedural rulings set “springes” for federal rights.

  When someone asserts that an action of government, state or federal, violates the Constitution, he faces further barriers to Supreme Court review. These have been erected over the years by the Court itself, out of a recognition that it is a grave step to invoke the Constitution against government officials—one not to be taken lightly—and that the Court has occasionally got itself into deep difficulty by venturing too hastily into constitutional decisions. Chief Justice Taney’s opinion in the Dred Scott case, holding that Congress had no power to prohibit slavery in new territories, brought the severest criticism on the Court and hurt its reputation for years; Chief Justice Hughes called it a “self-inflicted wound” because the issue need not have been decided at all.

  “The most important thing we do is not doing,” Justice Louis D. Brandeis used to say, expressing his almost Puritan resistance to the temptation of making great constitutional decisions. It is to avoid premature or unnecessary invocation of the Constitution that the Court has developed rules of self-control—“for its own governance,” Justice Brandeis said, adding that under these precepts the Court had “avoided passing upon a large part of all the constitutional questions pressed upon it for decision.”

  One concept, found in the law generally but applied with special care by the Supreme Court in constitutional cases, is “standing.” This means that the party complaining of some action in a lawsuit must show that he was personally injured or affected by it. If Tom assaults Dick, Harry has no standing to sue Tom for damages. A well-meaning citizen in Panama City, Florida, charged with no crime himself, could not bring a suit to make the state appoint counsel for Clarence Earl Gideon. A noted decision on standing arose from Connecticut’s birth-control law, making it a crime to use contraceptives. The Supreme Court threw out a Connecticut doctor’s claim that the law deprived his patients of their constitutional rights, holding that the doctor had no standing to assert the patients’ rights. Years later some Connecticut women in medical need of contraceptives themselves sued, but then a divided Supreme Court invoked another doctrine to dismiss the case. The women had sued to have the law declared unconstitutional rather than waiting to be subjected to a criminal prosecution for using contraceptives. In those circumstances, the Court said, there was no sign that Connecticut would actually enforce the archaic birth-control law and the Court should not decide so new and delicate a constitutional question.

  If there is any other way to resolve a case, the Court makes it a practice to avoid constitutional issues, no matter how strongly pressed. At the height of Federal Government’s loyalty-security program, the dismissal of those who were alleged to be security risks on the basis of secret charges by unnamed informants was attacked as unconstitutional in the Supreme Court. Both the Government and lawyers for the dismissed employee who had brought the case urged the Court to decide the basic constitutional issue; but a majority of the justices declined to do so, finding instead that the dismissal was invalid because Government officials had violated their own regulations. Ten years later the constitutionality of security dismissals on undisclosed charges has still not been settled, and it may never be. The rule, in Brandeis’s language, is that the Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.”

  The Court has made it a practice not to give advisory opinions, even to Presidents. (Washington sought one and was turned down by the justices.) Nor will the Court ordinarily decide “feigned cases,” got up by friends just to obtain an interpretation of the Constitution. Ours is an adversary system of justice, and its assumption is that the truth is best brought out in a genuine lawsuit between genuinely opposing parties. Brandeis said: “The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.”

  Gideon’s case appeared to meet all these requirements. He had certainly raised his federal claim, that the Constitution entitled him to a lawyer, at the earliest possible moment—when his case was called for trial. He had not appealed his conviction, and in some states t
hat would have been a fatal procedural error. But in Florida a prisoner may challenge the constitutionality of his conviction by petitioning the state supreme court to issue a writ of habeas corpus. Gideon had done just that, stating his constitutional claim for counsel again in the petition, and the Florida Supreme Court had presumably passed on and rejected the claim when it summarily denied his petition. Its judgment was final, and therefore ripe for review in the United States Supreme Court. Since this was a criminal case, such problems as standing did not arise; a man who has been sent to jail in a manner he terms illegal certainly has been injured, and his case is not feigned or advisory or premature.

  The claim that Gideon presented to the Supreme Court was, in sum, one that the Court could hear. Whether the Court would hear it was another and very different question.

  If the Court were required to hear every case that a nation of one hundred and eighty million litigious people could contrive to bring within its jurisdiction, the judicial process would quickly break down. Chief Justice Charles Evans Hughes explained in 1937:

  “No single court of last resort, whatever the number of judges, could dispose of all the cases which arise in this vast country and which litigants would seek to bring up if the right of appeal were unrestricted.”

  Hughes wrote this in a letter to Senator Burton K. Wheeler that was instrumental in defeating President Franklin Roosevelt’s plan to pack the Court. The President wanted to add a justice for each member of the Court over seventy years old—six at the time. Everyone knew his real reason was that he disapproved of the judicial philosophy of the 1937 Court, but he gave the explanation that the older judges needed help to turn out their work. In addition to showing that the Court was well up on its work, the Hughes letter devastated the argument that more judges would, as he put it, “promote the efficiency of the Court.” To the contrary, he noted, “there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” (Writing of the same problem of collective judging exactly a hundred years earlier, when there were eight Supreme Court justices, Justice Story said: “I verily believe, if there were twelve judges, we should do no business at all, or at least very little.”) An efficiency expert would doubtless recommend that the Court sit in panels of three instead of all nine in every case. Dealing with that idea, Hughes remarked that the Constitution speaks of “one supreme Court” and concluded—some thought he was giving an advisory opinion—that “the Constitution does not appear to authorize two or more Supreme Courts or two or more parts of a Supreme Court functioning as separate courts.” In any case, whether constitutionally permissible or not, it seems most unlikely that the country would tolerate having the decisions of so final and powerful a judicial body depend on which three justices happened to sit in each case.