Few of the paupers’ petitions turn out to be worth the Supreme Court’s time. Only about 3 percent are granted, as compared with approximately 13 percent of the petitions for certiorari on the regular docket. The prisoners’ claims, Justice William O. Douglas has said, “are often fantastic, surpassing credulity. They are for the most part frivolous.” (One recent petitioner said he was a descendant of the Spanish Grandee of Southern California and thus owned all the land.)
Given the difficulty of processing all these applications, it would be understandable if the Court did not try very hard to find the occasional needle in the haystack. But as Justice Walter V. Schaefer of the Illinois Supreme Court once said of a comparable problem, “It is not a needle we are looking for in these stacks of paper, but the rights of a human being.” And so the Supreme Court has devised a careful procedure for sifting the frequently incomprehensible documents that pour in from the country’s prisons. Justice Douglas has said he is confident that this procedure “dispenses justice at a level long neglected in the nation.”
The Gideon case was handled in the usual way for in forma pauperis cases. Gideon’s handwritten papers were held for thirty days, in their red envelope, to allow time for a reply by the Florida authorities. They knew of his petition because he had been required by the rules to mail a copy to the named respondent, H. G. Cochran, Jr., head of the Florida prison system. But the states rarely answer prisoners’ petitions, and there was no response to Gideon’s during the thirty days. When that time was up, on February 8, 1962, the papers were sent to the office of Chief Justice Earl Warren.
The Chief Justice’s three law clerks have the special duty of scrutinizing the in forma pauperis applications. (He has three instead of the two clerks allotted to other justices so that this arduous job can be done.) One of the clerks prepares a typewritten memorandum on each case, stating what the claim appears to be and any relevant legal framework. The memorandum is then circulated among the nine justices. If the claim seems to be a serious one, and in all cases of prisoners under death sentence, the original red envelope containing the application is attached to the law clerk’s memorandum when it is circulated; in any case a justice can call for the file. If a case raises a question that the law clerk examining the file thinks may interest the Court, he may suggest to the Chief Justice even before the papers are circulated that the state authorities be asked to file a response. The hope is that a response may clarify the legal issues, fill in the factual background and bring out any obstacles to the Court’s taking jurisdiction of the case.
That is what was done in Gideon’s case. The Chief Justice’s office instructed the Clerk’s Office, which sends all such communications, to call for a response. On March 8, 1962, Michael Rodak, Jr., the assistant clerk who had originally handled Gideon’s petition, sent this letter to the attorney general of Florida, Richard W. Ervin:
RE: GIDEON V. COCHRAN
No. 890 Misc., October Term, 1961
Dear Sir:
On January 8, 1962, Clarence Earl Gideon, an inmate of the Florida State Prison, at Raiford, filed a petition for writ of certiorari in this Court to review the order of the Supreme Court of Florida, dated October 30, 1961, in the above-entitled case. Our records indicate that you have been served with a copy of the petition.
The Court has directed this office to request that you file a response to the petition. One typewritten copy of your response, together with proof of service thereof, should reach this office on or before April 7, 1962.
John F. Davis, Clerk
by Michael Rodak, Jr.
Assistant
On April 9th the Court received a brief in opposition signed by Attorney General Ervin and one of his assistants, Bruce R. Jacob. It was thirteen typewritten pages, and it sounded one theme: Gideon had not been entitled to trial counsel under the rule of the 1942 decision in Betts v. Brady, that the Constitution guaranteed free counsel to indigent defendants in state criminal cases only when “special circumstances” showed that a fair trial would otherwise be impossible. The brief reviewed the cases since Betts v. Brady and then rested on the indisputable fact that Gideon had never even claimed to be the victim of any special disabilities which would bring him within the rule of that case.
“Petitioner Gideon,” the brief said, “has made no affirmative showing of any exceptional circumstances which would entitle him to counsel under the Fourteenth Amendment.… There has been presented no evidence of petitioner’s maturity or capacity of comprehension. Petitioner merely alleges that he was without funds, that he pleaded not guilty and that he requested court-appointed counsel, while being tried on a non-capital charge. The petition contains no allegations as to petitioner’s age, experience, mental capacity, familiarity or unfamiliarity with court procedure, or as to the complexity of the legal issues presented by the charge. [All these were factors that had been held to produce special circumstances under the Betts rule.] Petitioner has made no showing of unfairness or of a lack of fundamental justice in the trial proceedings. In fact, his petition is notable for its lack of material allegations such as would entitle him to counsel under the Fourteenth Amendment. Since there have been no allegations as to exceptional circumstances, the presumption must be indulged that the trial proceedings were fair and just.”
The one thing notable about the response, to an outside observer, was its assumption that the rule of Betts v. Brady was inviolate. The possibility that the Court might be prepared to overrule it was never considered.
The response ended with a certification by Assistant Attorney General Jacob that he had mailed a copy “to Mr. Clarence Earl Gideon, In Proper Person, Box 221, Raiford, Fla.” On April 21st the Court received a reply brief from Gideon. It was four pages long, again written in pencil, and it began with a modest disclaimer.
“Petitioner cannot make any pretense at being able to answer the learned Attorney General of Florida,” Gideon wrote, “because the petitioner is not attorney or versed in law nor does not have the law books to copy down the decisions of this Court. But the Petitioner knows there is many of them.”
The reply brief stuck resolutely to the simple proposition Gideon had argued from the beginning.
“The respondent claims,” it said, “that a citizen can get a equal and fair trial without Legal counsel.… Petitioner will attempt to show this Court that a citizen of the state of Florida cannot get a just and fair trial without the aid of counsel.… If the petitioner would of had attorney there would not of been allowed such things as hearsay, perjury or Bill of attainer against him.… It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused.…”
The reply was, in fact, telling in its simplicity. “It makes no difference how old I am or what color I am or what church I belong too if any.” Intended or not, that sentence was an effective parody of the sophisticated reasoning that in past years had determined—under the “special circumstances” approach—whether a man should have had a free lawyer at his trial.
By the time the Florida response and Gideon’s reply had come in, the Court was in its busiest period. Every spring the justices struggle to overcome procrastination, to compromise their differences, to finish up opinions on all the argued cases so that they can end the term in June, as scheduled, and go off to lie in the sun or make speeches at lawyers’ meetings, as the spirit moves them. In the office of the Chief Justice the in forma pauperis petitions may not have top priority. But the Gideon papers were again examined and summarized by a law clerk, and now his memorandum—with the full file attached—was circulated to the other eight justices.
During the last week in May the Chief Deputy Clerk of the Court, Edmund P. Cullinan, was informed that the case of Gideon v. Cochran was ready for discussion at the formal conference of the Court. It was then Cullinan’s duty to include the case on the next conference list—a
mimeograph, distributed to the justices, that shows all the items ready for the next conference. Cullinan put Gideon v. Cochran on the list for the conference of Friday, June 1st.
The nine justices meet in a formal conference every Friday during or preceding a week in which cases are argued or opinions announced—about three Fridays out of four during the October-to-June term. The conference room is an oak-paneled chamber adjoining the Chief Justice’s office in the rear of the Court building. Book shelves lining the walls are filled with law reports, and there is a long massive table in the center of the room. A single portrait, of Chief Justice John Marshall, looks down at the justices seated around the table.
The conference has a record for secrecy probably unrivaled in official Washington. So far as is known, no one not a justice of the Supreme Court has ever been allowed into the conference room during one of the sessions. No secretaries, no law clerks, no librarians, no messengers. If a message arrives, the junior justice—the one most recently appointed—goes to the door to get it. The purpose of this absolute secrecy is twofold. It ensures against premature disclosure of the Court’s decisions, and it protects the privacy of the justices’ discussion. The latter may be the more important reason. Genuine intellectual exchange among men of strong views is not always easy at best; it would be the more difficult if each justice had to fear public recriminations about some argument he advanced in the heat of debate. The justices must be free to argue to the hilt, without fear of reading in some popular journal that “Justice X wanted another Munich.”
Members of the Court have disclosed, however, the general way the conference is conducted. It begins at ten A.M. and usually runs on until late in the afternoon. At the start each justice, when he enters the room, shakes hands with all the others there (thirty-six handshakes altogether). The custom, dating back generations, is evidently designed to begin the meeting at a friendly level, no matter how heated the intellectual differences may be. The conference takes up, first, the applications for review—a few appeals, many more petitions for certiorari. Those on the Appellate Docket, the regular paid cases, are considered first, then the paupers’ applications on the Miscellaneous Docket. (If any of these are granted, they are then transferred to the Appellate Docket.) After this the justices consider, and vote on, all the cases argued during the preceding Monday through Thursday. These are tentative votes, which may be and quite often are changed as the opinion is written and the problem thought through more deeply. There may be further discussion at later conferences before the opinion is finally handed down.
Because so many men are involved, with the resulting risk of chaos, the discussion follows a quite formal procedure. The Chief Justice begins the consideration of each case by stating the issue and his views. The senior associate, now Justice Black, speaks next, and so on down the line. As presiding officer the Chief Justice shapes the character of the conference, not only by the way he first formulates the issues but by deciding, for example, how long to let debate continue before calling for a vote. Chief Justice Hughes was regarded by some as the greatest master of the conference. “To see him preside,” wrote Justice Frankfurter, “was like witnessing Toscanini lead an orchestra.” But during the Hughes years Justice Harlan F. Stone complained that the Chief was too firm, too controlling. Then Stone became Chief Justice, and his colleagues protested that the conferences dragged because he was not firm enough.
At the typical conference these days the justices pass on nearly one hundred matters, a formidable number. A little arithmetic will quickly indicate how impossible a burden that would impose if every justice were to talk on every case. Ten years ago, when the docket was significantly shorter than today’s, Justice Jackson figured that the average conference list would permit “five minutes of deliberation per item, or about thirty-three seconds of discussion per item by each of the nine justices.… All that saves the Court from being hopelessly bogged down,” Jackson added, “is that many of these items are so frivolous on mere inspection that no one finds them worthy of discussion, and they are disposed of by unanimous consent.” Each justice, before the weekly conference, sends to the Chief’s Office a list of cases he considers not worthy of discussion; the cases on which all nine are agreed are thereupon passed over at the conference.
Voting in the conference is in inverse order to discussion: the junior justice first. It takes only four votes to grant certiorari or to put an appeal down for oral argument. The theory of having less than a majority grant review is that a case deemed important by as many as four justices is at least worthy of the Court’s consideration; the majority is always free to work its will later, on the merits of the issue presented. (Justice Frankfurter argued that a majority of five should be free, indeed, to dismiss the writ of certiorari as “improvidently granted,” but this view was rejected as inconsistent with the integrity of the so-called Rule of Four for granting review.) Even when there are fewer than four justices who personally want to take on a case, the necessary four votes may well be obtained by judicial log-rolling. (You vote for my case and I’ll vote for yours.) The outside world does not know how the Court reaches the decision to grant or deny review of a case—or how it reaches any decision at conference, although some of these secrets have been disclosed by the publication of justices’ papers. Most thoughtful persons have concluded that there should be no such publication at least until all participants in the events described have left the Court, lest freedom of discussion at conference be inhibited by the fear of premature disclosure. One member of the present Court was so distressed by the gossip retailed in one judicial biography that he ordered all his own papers burned—to prevent their misuse in the event of his death.
At the conference of June 1, 1962, the Court had before it two jurisdictional statements asking the Court to hear appeals, twenty-six petitions for certiorari on the Appellate Docket, ten paupers’ applications on the Miscellaneous Docket and three petitions for rehearing. (The last are almost never granted.) There were some important cases among these. One was a challenge to the constitutionality of New York’s legislative districts; the justices decided to send this back to a federal court in New York for reconsideration in light of their recent decision, in a Tennessee case, that federal courts could scrutinize state legislative apportionments. Another case arose from the Freedom Rides. Six Negroes had been convicted of breach of the peace for their effort to desegregate a Shreveport, Louisiana, bus terminal. The Court, having read the printed petition and response in this case, decided to grant the petition for review and then summarily to reverse the convictions for lack of any supporting evidence except the constitutionally impermissible fact that they had violated the custom of segregation. The Kohler Company of Wisconsin was asking the Court to review the finding of the National Labor Relations Board that it had committed unfair labor practices in the bitter dispute, dating back to 1954, with the United Automobile Workers. The justices also considered some of the cases that had been argued earlier in the term and that now were ready for disposition. They discussed some draft opinions. They decided to put down for re-argument next fall the great dispute between Arizona and California over the water of the Colorado River. And, finally, they passed on the handwritten petition for certiorari filed by Clarence Earl Gideon, prisoner No. 003826, Florida State Penitentiary, Raiford, Florida.
The results of the deliberations at this conference were made known to the world shortly after ten A.M. the following Monday, June 4th, when a clerk posted on a bulletin board the mimeographed list of the Supreme Court’s orders for that day. One order read:
890 MISC. GIDEON V. COCHRAN
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The case is transferred to the appellate docket. In addition to other questions presented by this case, counsel are requested to discuss the following in their briefs and oral argument:
“Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered?”
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In the Circuit Court of Bay County, Florida, Clarence Earl Gideon had been unable to obtain counsel, but there was no doubt that he could have a lawyer in the Supreme Court of the United States now that it had agreed to hear his case. It is the unvarying practice of the Court to appoint a lawyer for any impoverished prisoner whose petition for review has been granted and who requests counsel.
Appointment by the Supreme Court to represent a poor man is a great honor. For the eminent practitioner who would never, otherwise, dip his fingers into the criminal law it can be an enriching experience, making him think again of the human dimensions of liberty. It may provide the first, sometimes the only, opportunity for a lawyer in some distant corner of the country to appear before the Supreme Court. It may also require great personal sacrifice. There is no monetary compensation of any kind—only the satisfaction of service. The Court pays the cost of the lawyer’s transportation to Washington and home, and it prints the briefs, but there is no other provision for expenses, not even secretarial help or a hotel room. The lawyer donates that most valuable commodity, his own time.
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