A People's History of the Supreme Court

by Peter Irons

  The Warren Court told criminal defendants they did not have to speak with police, but during the Vietnam War, many Americans wanted to speak out against American policies. The Court decided several cases that raised First Amendment issues. The hardest cases involved “symbolic speech” in which protest was expressed without words. For young men, the most visible symbol of the government’s power over their lives was a small piece of cardboard. Federal law required men of draft age to carry their draft card at all times. When the war heated up, some protested by burning their cards. Congress promptly made it criminal to “destroy or mutilate” draft cards, but this law did not extinguish the protests. David O’Brien burned his card in 1966, and was sentenced to prison for his symbolic act. After a federal appellate court reversed his conviction on First Amendment grounds, the government protested to the Supreme Court. Warren wrote the opinion in 1968 that sent O’Brien to jail, placing the “smooth and efficient functioning” of the draft system ahead of his free-speech rights. This was one of the few cases in which the Chief Justice sided with the government in a First Amendment dispute, but Warren generally deferred to the military in clashes with civilians. William Douglas filed the sole dissent in United States v. O’Brien; his fellow First Amendment absolutist, Hugo Black, joined Warren’s opinion.

  The next year, the Court shifted positions in another “symbolic speech” case. Mary Beth Tinker did not have a draft card, but she displayed her opposition to the war by wearing a black armband to her eighth-grade classes at Warren Harding Junior High in Des Moines, Iowa. School officials had gotten wind of her plans and quickly issued an order banning armbands from the city’s schools. Mary Beth was suspended when she wore her armband to school in December 1965. Her protest upset the “smooth and efficient functioning” of her algebra class, where the teacher argued with her about patriotism. Justice Abe Fortas, writing in Tinker v. Des Moines, admitted that “symbolic speech” like Mary Beth’s armband “may start an argument or cause a disturbance.” But “our Constitution says we must take this risk,” he added. Fortas declared that schools “may not be enclaves of totalitarianism.” Crotchety in his eighties, Justice Black dissented and lectured Mary Beth that “uncontrolled liberty is an enemy to domestic peace.” He lumped Mary Beth, whose protest was totally quiet, with the “loudest-mouthed” students who “have too often violently attacked” their classmates. Only Justice Harlan, three months shy of seventy, joined Black in telling Mary Beth to sit down and shut up.

  Our final Warren Court snapshot was taken in 1960, but was not developed until 1964. The “sit-in” movement against lunch counter segregation began in February 1960 in Greensboro, North Carolina, and rapidly spread across the South. Demonstrators filled local jails, and civil rights groups quickly ran out of bail money. Notable figures like Nat King Cole, Sammy Davis, Jr., and Jackie Robinson lent their names and prestige to a fund-raising effort that included a full-page advertisement in the New York, Times on March 29, 1960. Under the headline “Heed Their Rising Voices,” the ad detailed the “wave of terror” against sit-in protesters. “I Montgomery, Alabama, after students sang My Country ‘Tis of Thee’ on the State Capitol steps,” the ad stated, “their leaders were expelled from school, and truckloads of police armed with shot-guns and tear gas ringed the Albany State College campus.” The facts were slightly different; the students actually sang the national anthem, protest leaders were suspended but not expelled, and police were deployed but did not “ring” the campus.

  The Times ad did not name any Montgomery officials, but police, commissioner L. B. Sullivan brought a libel suit against the paper, claiming that readers would connect him with the police activities and that his reputation had been damaged. The ad’s minor errors persuaded an all-white Montgomery jury to conclude that Sullivan had been libeled; they awarded him a $500,000 judgment against the Times. justice William Brennan wrote for a unanimous Court in reverging the judgment. He delivered the most stirring defense of free expression since the time of Holmes and Brandeis. Brennan viewed the case of New York Times v. Sullivan “against the backdrop of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Brennan imposed on officials like Sullivan the high burden of proving that statements about them were published with “reckless disregard” of their truth or falsity. Few officials have met that burden since Brennan wrote his landmark opinion.

  Earl Warren endured many vehement, caustic, and sharp attacks during the sixteen momentous years he presided over the Supreme Court. During the 1960s, the far-right John Birch Society launched a campaign to “Impeach Earl Warren,” a response more to the Warren Court’s rulings in cases that dealt with Communists than to its school segregation decisions. The efforts to impeach Warren failed, but they provided ironic evidence of his commitment—through the Court’s First Amendment decisions—to the uninhibited debate on public issues on which the democratic process depends. Earl Warren’s heart finally stopped beating on July 9, 1974, but his spirit lived on in the hearts of millions of Americans. For two days after his death, Warren’s body lay in a flag-draped casket in the Supreme Court’s rotunda, while thousands of people—most of them very ordinary Americans—filed by to honor this extraordinary American. Many of those who paid their respects were black, and most had never before entered the Court’s imposing edifice. Mac. Taylor, who was sixty-six and had worked on the cleaning staff of the Capitol, just across the street, came to say goodbye to a man she had never met. “We owe a lot to him, he wanted equal rights for all people,” she told a reporter. “America is a better place because he lived.”

  America is a better place because Earl Warren lived, but during the two decades before his death, the American people witnessed—and many took part in—bitter conflicts over civil rights and the Vietnam War. Confrontations in scores of towns and cities—from Boston to Birmingham to Berkeley—erupted into battles that pitted angry demonstrators against police officers, state troopers, federal marshals, National Guardsmen, and army troops. The forces of “law and order” used clubs, dogs, tear gas, fire horses, bayonets, even bullets to quell the disorder that swept the country.

  Many people died in the struggles to end segregation at home and warfare abroad. We cannot list all the victims here, but some names still ring faint bells of remembrance. Four little black girls—Denise McNair, Addie Collins Cynthia Wesley, Carole Robertson—died in their Sunday dresses when a bomb destroyed the Sixteenth Street Baptist Church in Birmingham, Alabama, in 1964. Three voter registration workes—James Chaney, Andrew, Goodman, Michael Schwerner—were murdered that same year by Klansmen in Philadelphia, Mississippi. When the Vietnam War spilled into Cambodia in 1970, Ohio National Guard troops shot and killed four young people—Allison Krause, Jeffrey Miller, Sandra Scheuer, William Schroeder—during a protest rally at Kent State University. No monument like the Vietnam Memorial in Washington honors those who died in America’s domestic wars, but the Warren Court’s judicial opinions form a symbolic monument to their memory.

  SECTION VI

  “A Right of Personal Privacy”

  32

  “You’ve Been Taking Pure Thalidomide”

  Richard Nixon won the presidency in 1968 by offering voters a “secret plan” to end the Vietnam War, while his Democratic opponent, Vice President Hubert Humphrey, could not untangle himself from Lyndon Johnson’s disastrous Vietnam policies. Humphrey received twelve million fewer votes than Johnson had won in swamping Barry Goldwater in 1964. Almost ten million of the defectors, however, voted for George Wallace rather than Nixon, who barely squeaked past Humphrey at the finish line. In his last-ditch battle for wavering voters, Nixon turned his guns on the Warren Court, charging it with going “too far in weakening the peace forces as against the criminal forces in this count
ry.” There was some irony in the spectacle of one former Republican California politician attacking another, particularly since Earl Warren had been a tough prosecutor and Nixon—although he had a law degree—had never tried a criminal case. But many Warren Court decisions, including Miranda in 1966, had sparked public outcries, and Nixon knew that denouncing the Supreme Court had never cost a politician votes. George Wallace had proved that in running for president in 1964, and Nixon would not let Wallace outflank him on the right.

  Before he left office, Lyndon Johnson handed Nixon the chance to replace Earl Warren as Chief Justice. Warren privately detested Nixon, but he shared the blame with Johnson and Justice Abe Fortas for this political and judicial blunder. Assuming that Johnson would run for a full presidential term in 1968, Warren had announced in June that he would retire when his successor was confirmed. Warren knew in advance that Johnson would name Fortas as Chief Justice, and heartily approved his choice. However, reports that Fortas had accepted large fees for short lectures quickly made headlines and prompted Republicans to hold up his confirmation hearings. The slow drip of news stories about Fortas’s shady financial dealings finally eroded Johnson’s resolve to stand behind his old friend, but Fortas stubbornly refused to withdraw until three weeks before the presidential election, too late for Johnson to make another nomination. Warren could have withdrawn his proffered resignation and remained as Chief Justice, but this would have looked duplicitous. The Chief was a man of his word, and he loyally allowed his political enemy Richard Nixon to appoint his successor. In truth, Warren Burger owed his nomination as Chief Justice to the greed and untruthfulness of Abe Fortas.

  President Nixon had met Burger only on ceremonial occasions before choosing him to replace Warren as Chief Justice. But his attorney general, John Mitchell, recommended Burger as a “law and order” judge, just what Nixon, ordered for the Supreme Court. Born in St. Paul, Minnesota, in 1907, Burger epitomized the Horation Alger model for success. Raised in a working-class family, he worked during the day to pay his way through law school at night. Burger practiced law and Republican politics for more than twenty years, and swung his state’s delegation behind Dwight Eisenhower at the 1952 GOP convention. Ike rewarded Burger in 1953 with an appointment to head the justice Department’s Civil Division. Two years later, the president placed Burger on the District of Columbia federal appellate court, one of the nation’s busiest and most influential. Liberal judges dominated that court, and Burger wrote stinging dissents in many cases. He almost always upheld criminal convictions, and he publicly denounced the Supreme Court’s Miranda decision in speeches and articles.

  Richard Nixon hoped and expected that Warren Burger would preside over the dismantling of the Warren Court’s liberal edifice. The great irony of Burger’s seventeen years as Chief Justice is that he did little more than chip the marble of its sturdy walls. One scholar aptly called the Burger Court “the counter-revolution that wasn‘t” The Chief’s inability to lead the Court was the primary reason for this failure. And Burger’s lack of leadership allowed justice William Brennan, the Warren Court’s real leader, to minimize the damage and even to erect new walls that sheltered new rights, most notably the “right to privacy” that gave birth to Roe v. Wade in 1973.

  Few Americans had any knowledge of the Roe case until the the Supreme Court announced its decision on January 22, 1973. Most lawyers would date Roe’s beginning to March 3, 1970, when a young lawyer named Linda Coffee entered the federal courthouse in Dallas, Texas, and filed a complaint for “Jane Roe” against Henry Wade, the county’s district attorney, seeking to block enforcement of the state’s abortion law. Historians would look back to 1854, when the Texas legislature made abortion a criminal offense except to save a pregnant woman’s life. From another perspective, however, the Roe case began in Phoenix, Arizona, on July 20, 1962. On that day, a twenty-nine-year-old pregnant woman named Sherri Finkbine received a call from her doctor, warning that she faced a high risk of having a badly deformed baby. Sherri, the mother of four healthy children and the hostess of Romper Room, a popular children’s television show, had been treating daily headaches with pills her husband, Bob, had brought with him from a trip to England. The label on the pill bottle read “Distaval,” but Sherri had recently seen an article in the Phoenix newspaper, the Arizona Republic, about an epidemic of deformed babies in England and West Germany. Their mothers had taken a medication called thalidomide for headaches and morning sickness; Sherri wondered in Distaval might be the same thing, and called her doctor to find out. The call she got back confirmed her worst fears. “You’ve been taking pure thalidomide,” he said.

  The next day, Sherri and her husband visited the doctor, who showed them pictures in a medical journal of “thalidomide babies” with no arms or legs. Sherri had great misgivings about the morality of abortion, but the graphic pictures of babies with little fingers at their shoulders or toes at their hips overcame her qualms. “That did it,” she later said. Sherri decided to have an abortion, and her doctor arranged one at Good Samaritan Hospital for the next week. Arizona law allowed abortions only to save the pregnant woman’s life, but Sherri’s doctor convinced the hospital’s abortion committee that continuing her pregnancy might endanger her life. Most hospitals kept these questionable cases quiet, and Sherri’s abortion would have passed without notice had she not called a friend at the Arizona Republic to thank him for the story that alerted her. Sherri then got a call from the paper’s medical editor; she told him about the pictures her doctor had show the Finkbines and her decision to end her pregnancy. The next morning’s front-page Republic headline read, “Pill Causing Deformed Infants May Cost Woman Her Baby Here.” The story did not identify Sherri by name, but the next day, hospital officials canceled her abortion after the county attorney warned them of legal action. The day after that, the Finkbines’ lawyer asked a state judge to restrain state and county attorneys from intervening. Sherri’s name became public, and the following day newspapers around the country informed their readers of her predicament.

  Two weeks after Sherri called her doctor, Life magazine spread pictures of the Finkbines’ healthy children and their mother across two pages, under the headline “Abortion—With the Future Grim, Should the Unborn Die?” The Newsweek headline over her story read, “Abortion: Mercy—or Murder?” Balancing opinions on the issue, Newsweek quoted two men on the issue. “No matter how praiseworthy the motives that inspire abortion,” stated Father Thurston Davis, editor of the Jesuit magazine America, “the answer must always be no. To deliberately terminate the life of an innocent being is, in one word, murder.” Dr. Alan Guttmacher, chief of obstetrics at Mount Sinai Hospital in New York, answered that many women died from illegal abortions and warned that “criminal abortion will continue to be a serious medical-legal disease” until states repealed their laws. “Don’t tell me your town doesn’t have a criminal abortionist,” Dr. Guttmacher said to opponents. “You’re just too naive to know who he is.”

  The Good Samaritan Hospital closed its doors to Sherri Finkbine, and she had no intention of looking for a back-alley abortionist in Phoenix. Unwilling to wait until Arizona judges decided their suit, the Finkbines decided to seek an abortion outside the country. A Swedish newspaper offered to arrange their travel in return for interviews, and American reporters trailed Sherri and her husband to Stockholm. “We don’t believe in abortions, really,” she told one. “But the main thing is to do what is right for the baby. I don’t feel it morally right to bring a deformed child into the world.” Sherri finally ended her pregnancy on August 18, 1962. The doctors told her the fetus was “not a baby,” and Bob Finkbine told reporters that “we both feel extremely relieved.” But not everyone felt relieved. Speaking for the Roman Catholic Church, the Vatican radio called Sherri’s abortion a “homicide” and said “the victim was a human beng.” However, the Gallup Poll reported in September 1962 that 52 percent of its respondents felt that Sherri had done the r
ight thing, and only 32 percent disagreed. When they put down their newspapers and magazines, Americans began talking about abortion with friends and neighbors. Arguments over this emotional issue, mostly polite but sometimes heated, began moving from living rooms into courtrooms.

  Rosa Parks had not planned in advance her decision in December 1975 to remain seated in the “whites-only” section of a bus in Montgomery, Alabama. But her arrest for defying the Jim Crow system of segregation helped to focus public attention on the plight of southern blacks and spurred a national campaign for civil rights. These efforts—which culminated in the Civil Rights Act of 1964 and its approval that same year by the Supreme Court—were led by the NAACP and defended in court by an experienced legal staff headed by Thurgood Marshall. Sherri Finkbine had also not planned in advance her decision in August 1962 to end her pregnancy outside a state that made abortion a criminal act. These two women—unlike in race, religion, and social class-shared one thing: their determination to defy laws they considered wrong, But unlike Rosa Parks, Sherri Finkbine could not turn for support to a large organization like the NAACP or a staff of experienced lawyers, In this respect, the campaign for abortion rights began with handicaps that only determination and persistance could overcome. There was, in fact, no abortion rights movement in the 1960s with any political clout or celebrity backers.