by Jim Newton
In his place, Johnson appointed one of his closest friends and advisers, Abe Fortas, who was best known to the brethren for his argument in Gideon but whose career already was studded with admirers and detractors, evidence of his abiding intelligence as well as his difficult temperament. Fortas at least nominally resisted the appointment. (He had founded a Washington law firm, and felt obligated to help build it; he and his wife, the tough and bright Carol Agger, had just purchased a home and had debts to pay. Laura Kalman, Fortas’s able biographer, suggests that Agger believed Fortas should spend more time with the firm and wait for a later spot on the Court.23) On the day of Stevenson’s funeral, even as Johnson was working on Goldberg, Fortas asked not to be considered, citing his obligations to the Johnson family, whose legal interests he protected, and to his law firm.24 But Fortas did not object to being courted, and Johnson was not in the mood for no. He lobbied and enlisted the help of others, and when Fortas still resisted, Johnson in effect tricked him, luring him to the White House on a pretext and only then telling Fortas that he was about to announce the appointment. Fortas accepted. His wife was so angry she refused to speak with the president of the United States for the next two months.25
On the surface, the switch meant little—a trade of one liberal justice for another. And indeed, the immediate consequences of Goldberg’s departure and Fortas’s arrival were muted. In the area of business and economic regulation, Fortas, the corporate lawyer, was more forgiving of financial interests than Goldberg, the labor attorney. Beyond that, the new justice largely picked up where the departing one had left off. What neither Johnson nor Warren could have guessed was that the fuse that would detonate the Warren Court had just been lit.
BY THE MID-1960S, the Court was no longer moving alone, as it had in the early days of the civil rights movement. Lyndon Johnson had refused to yield until the Senate adopted the Civil Rights Act of 1964, relieving the Court of the sole burden for breaking down racist barriers in public places. The following year, too quickly for Johnson’s taste, pressure built for a similar campaign against obstacles to black voting. Just as Birmingham had provided the moral and political impetus for the Civil Rights Act, so, this time, did Selma supply the urgency for federal action on voting. As 1965 opened, Martin Luther King, now a Nobel laureate, for the Peace Prize he had received the previous year, turned his attention to Selma and to the pernicious efforts there to thwart black voter registration. And just as Birmingham had served up a thuggish cop—there, Bull Connor—so too did Selma sink to that occasion, providing the civil rights mission with its counterpart this time in the form of Jim Clark, a thick brute all too happy to resort to violence in order to preserve racism. After weeks of skirmishing, protests began in Selma on January 19 and escalated with the now familiar routine of peaceful protest followed by mass arrest. King demanded federal action to protect voting rights. Johnson agreed in principle but held back on supporting a specific bill.
King scheduled a march from Selma to the state capitol in Montgomery, and set March 7 as the day it would leave Selma. Governor George Wallace refused to allow it, and Clark massed his officers to block the demonstration. Although King himself was not present, the march proceeded on schedule. As the demonstrators came off the Edmund Pettus Bridge, marching two-by-two behind John Lewis and Hosea Williams, police swarmed upon them, “a blur of blue shirts and billy clubs and bullwhips” cloaked in billowing tear gas.26 Choking and hysterical, the marchers fell apart under the assault by police; when residents of a nearby housing project began to throw rocks at the marauding police force, the confrontation for a moment teetered on the precipice of disaster. The assault took place directly in front of reporters and photographers, and accounts of the brutality flooded the nation that night. ABC interrupted its programming to bring the pictures, and thus many viewers learned about the Selma brutality in the midst of watching that night’s special presentation, Judgment at Nuremberg. The juxtaposition, though unintentional, spoke for itself.27
March 7 became known as “Bloody Sunday,” and the same nation that winced in the face of Birmingham did so again, its moral reflexes this time twitching in sympathy with the movement’s demand for voting access. At the Virginia home of Hugo and Elizabeth Black, the justice and his wife mourned the death of a family friend on the battlefield of Selma. Jim Reeb, a Unitarian minister from Boston who had performed the marriage of Hugo’s daughter, walked into the wrong part of town, the white part, after the march and was set upon by a group that beat him and his companion. One thug struck Reeb with a club; he died en route to a Birmingham hospital after a Selma hospital refused to let one of its ambulances take him there.28 “My poor Alabama!” Elizabeth Black groaned to her diary.29
Johnson, cautious at first in the face of King’s insistence on federal action, now rose to the occasion. On March 15, 1965, Johnson appeared before his old colleagues in the Congress and delivered the most memorable speech of his life. “I speak tonight for the dignity of man and the destiny of democracy,” Johnson began. He compared Selma to Lexington and Concord, to Appomattox. Congress and its invited guests listened silently, expectantly, as did the “great, rich, restless country” beyond the chambers on that late-winter night. In Selma, Johnson said, “long-suffering men and women peacefully protested the denial of their rights as Americans. Many were brutally assaulted. One good man, a man of God, was killed.”30
Johnson that night drew upon his own life and summoned the best of his rhetoric. He well knew that the realities of voter registration were such that there was only one way to qualify to cast a ballot in many states. Literacy tests and registration requirements were a sham; “the only way to pass these barriers is to show a white skin,” Johnson said. He was plain and eloquent, beseeching Congress to join him, not merely to follow. But he was uncompromising on the underlying principle: Negroes were going to be allowed to vote, and no obstacle to that right was going to be allowed. “This time, on this issue, there must be no delay, no hesitation and no compromise with our purpose,” he commanded. The members applauded long and hard.
Johnson’s speech was a masterpiece with an unusual structure. Its apex came not at its conclusion but near the middle. After reviewing the situation in Selma and outlining the bill he intended to send to Congress, he asked that body’s members to join him in long nights and deliberations, to absorb the “outraged conscience of a nation” and pass a law to eliminate all illegal restrictions against voting. But, he warned:
Even if we pass this bill, the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life.
Their cause must be our cause, too. Because it’s not just Negroes, but really it’s all of us, who must overcome the crippling legacy of bigotry and injustice.
Johnson had not always accepted the cause of civil rights. He’d used the word “nigger” and disparaged the lot of American blacks. He’d shuffled on the Southern Manifesto and dodged on Brown. But now, moved by Selma and determined to bring his Great Society to all of America, Johnson delivered his signature line. Yes, all Americans suffered under the heavy weight of bigotry and injustice. But the time had come to end that suffering. The time had come for men such as himself to join the great cause of freedom urged by blacks. Yes, said the president of the United States, leader of his divided and heartfelt people, “We shall overcome.” Watching in Selma, Martin Luther King shed a tear.31 The Congress sat stunned. But moments later, when Johnson pledged to put the power of his office behind the cause of civil rights, members of Congress jumped to their feet and thundered with applause.
They were not alone. Four members of the Court attended that night’s speech. Whatever proprieties are expected in the relationship between the branches of American government were, in that moment, forgotten by the nation’s chief justice. Earl Warren rose along with the Congress and cascaded Johnson with a
standing ovation.32
Prodded by Congress and shamed by Selma, Congress moved quickly to give Johnson his act, and a delighted Johnson signed it in August of that same year.33 As with the Civil Rights Act, the Court leapt at the chance to rule on a challenge to it. In this case, it came from South Carolina, which protested the act’s provisions that allowed the attorney general to intervene in states where voting registration or turnout were suspiciously low—fewer than half of South Carolina voters had cast ballots in the 1964 presidential elections—and where tests impeded some voters from registering. The Fifteenth Amendment barred discrimination in voting by race and gave Congress the right to “enforce this article by appropriate legislation.” 34 In this case, however, South Carolina argued that its literacy test was racially neutral and that the act went beyond enforcement of the Fifteenth Amendment, giving the government the authority to regulate, not merely enforce. The justices allowed South Carolina to bring its case directly to the Court, bypassing the normal route of appeal and accepting the state’s bill of complaint. Other states were invited to weigh in, and Warren set arguments for January 17 and 18, 1966, less than six months after the act was adopted.
None of those who assembled can have had much doubt about where Warren himself would end up in the case. He was in his twelfth year of a campaign against Southern racism, and his impulsive leap to his feet at Johnson’s introduction of the Voting Rights Bill telegraphed his feelings. The Court was another matter, however, and when the lawyers gathered in January, there were, in Warren’s words, “emotional overtones” to the arguments.35 South Carolina’s lawyers tried to persuade the Court to ignore what it knew to be true—that state and local officials there would use any means at their disposal to repress its Negro population. Johnson knew it, Warren knew it, and one suspects that South Carolina’s lawyers and leaders knew it, too, however much they tried to insist otherwise. Once the case was argued, Warren assigned it to himself, and turned around his opinion for the Court in under three months. In it, Warren made clear that he valued voting, that he was offended by those who had spent decades stripping citizens of their right to engage in it, and that he specifically knew who was guilty of it and why:
Beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting. Typically, they made the ability to read and write a registration qualification and also required completion of a registration form. These laws were based on the fact that as of 1890 in each of the named States, more than two-thirds of the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write. At the same time, alternate tests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, “good character” tests, and the requirement that registrants “understand” or “interpret” certain matter.36
The Voting Rights Act, Warren wrote, was a legitimate response to devious attempts to perpetuate that discrimination. When that opinion was handed down in March, all the brethren joined except Black, who by then had slipped into a reflexive defense of the South. His opinion accepted most of Warren’s analysis, but he broke in order to express the offense he took at a law that so blatantly challenged his home, Elizabeth Black’s “poor Alabama.” The Voting Rights Act required any state whose elections failed its tests to suspend registration tests—in this case, the literacy test—and then seek preapproval of any other tests from the federal government. Known as “pre-clearance,” that requirement struck Black as patronizing and offended his sudden regard for states’ rights.37 Warren once looked to Black for guidance and counsel. No more.
One week after the argument in the South Carolina case, the justices considered another popular method of controlling voting, the poll tax. The poll tax was well on its way to oblivion by 1966, already having been struck in federal elections and disappearing from state elections as well.38 But Warren had written that “the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights.”39 Given that, any impairment was an offense, and one he was committed to eradicating. The Fifteenth Amendment made it illegal to prevent Negroes from voting. The poll tax worked its mischief against the poor (though, often, they were Negroes as well). In theory, there were at least two problems with defending the poor from discrimination at the polling place: the Court already had upheld it, and no constitutional provision or amendment prevented states from enacting such a tax. That might have slowed a different Court, but not Warren’s, not at the height of its power and in the face of such an easily understood discrimination. Warren assigned the case to Douglas, who had long opposed the tax. He delivered as expected. “We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes affluence of the voter or payment of any fee an electoral standard,” he wrote in an opinion that Warren naturally joined. “Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. ”40 Harlan, joined by Stewart, dissented to renew his objections to the Court’s adventurism in rectifying bad voting laws—objections he stated in Reynolds and restated in this case. Black sputtered another dissent. But Warren and Douglas had their votes.
The Court’s rulings in South Carolina v. Katzenbach and Harper v. Virginia Board of Elections upheld the Voting Rights Act against relatively easy challenges—brought by Southern states in defense of discredited practices. The third of the Court’s three major voting cases that term turned on a more novel question and arose from outside the South. In 1922, the State of New York imposed a requirement for voting—namely, that any voter must be able to read and write English.41 Section 4(e) of the Voting Rights Act, however, stated that any person who had completed the sixth grade in any American state, territory, District of Columbia, or Puerto Rico was entitled to vote even if he or she was not literate in English. That language was written specifically to extend the franchise to the hundreds of thousands of Puerto Ricans who had immigrated to the United States—largely to New York—many of whom were literate but not in English. It was not the result of extensive congressional analysis but rather a floor amendment introduced by Senator Robert Kennedy and accepted into the act without hearings.42
For the Court, the difficulty in striking New York’s law in favor of the Voting Rights Act requirement was that the Court itself had upheld racially neutral literacy tests as a valid condition for voting. “The ability to read and write,” the Court unanimously ruled in 1959, “. . . has some relation to standards designed to promote intelligent use of the ballot. . . . We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.”43 In a footnote to that opinion, the Court specifically recognized that of the nineteen states that required literacy among voters, some went further and required a demonstration of English literacy and aptitude.44
So if literacy was an acceptable condition of voting and states were allowed to make command of English a requirement, how could Congress now undo the work of the Court? And if Congress could undo that work, what would prevent it from trying its hand at other areas of constitutional doctrine? It was one thing to extend the vote, another to open the door to congressional meddling in the Court’s constitutional domain.
Black had dissented from the two voting cases coming from the South, but he was more sympathetic now that the challenged state was New York. Seeing the opportunity to bring Black home to the liberal majority, Warren asked him to take the case. Black declined, saying he feared his view of the disputed section of the act would not command a majority of the Court.45 Faced then with the doctrinal challenge posed by the complexity of the case, Warren instead assigned the opinion to Brennan, who undertook that assignment with substantial help from Black. Brennan managed to protect
both the Court and Puerto Rican voters by emphasizing the vote as an instrument of civic authority. Voters have power, and power secures for those voters the blessings of their government; without power, those blessings would fall elsewhere, and for that to happen to an ethnic group was intolerable and unconstitutional—well within the power of Congress to eliminate. “This enhanced political power will be helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community,” Brennan wrote. The disputed section of the act thus “enables the Puerto Rican minority better to obtain ‘perfect equality of civil rights and the equal protection of the laws.’ ”46 That satisfied half the Court’s mission—extending the vote. But could Congress, using its power to enforce the equal protection clause, pass other legislation that the Court would disapprove of? Harlan raised that question in dissent, and Brennan answered with a footnote stressing that Congress had the right only to “enforce the guarantees of the Amendment.” It had no comparable right to “restrict, abrogate, or dilute these guarantees.” 47 If that was half a gift—permitting Congress to expand rights but not to contract them—it nevertheless was a reminder that the Warren Court was not bent on preserving for itself the entire domain of civil liberties; it openly invited Congress to come along, just not to impede.
