Fighting Injustice by Michael E. Tigar Copyright © 2001 by Michael E. Tigar All rights reserved CONTENTS Introduction 000 Prologue It Doesn’t Get Any Better Than This 000 Chapter 1 The Sense of Injustice 000 Chapter 2 What Law School Was About 000 Chapter 3 Washington – Unemployment Compensation 000 Chapter 4 Civil Wrongs 000 Chapter 5 Divisive War -- Prelude 000 Chapter 6 Divisive War – Draft Board Days and Nights 000 Chapter 7 Military Justice Is to Justice . 000 Chapter 8 Chicago Blues 000 Chapter 9 Like A Bird On A Wire 000 Chapter 10 By Any Means Necessary 000 Chapter 11 Speech Plus 000 Chapter 12 Death – And That’s Final 000 Chapter 13 Politics – Not As Usual 000 Chapter 14 Looking Forward -- Changing Direction 000 Appendix Chronology 000 Afterword 000 SENSING INJUSTICE, DRAFT OF 7/11/13, PAGE 2 Introduction This is a memoir of sorts. So I had best make one thing clear. I am going to recount events differently than you may remember them. I will reach into the stream of memory and pull out this or that pebble that has been cast there by my fate. The pebbles when cast may have had jagged edges, now worn away by the stream. So I tell it as memory permits, and maybe not entirely as it was. This could be called lying, but more charitably it is simply what life gives to each of us as our memories of events are shaped in ways that give us smiles and help us to go on. I do not have transcripts of all the cases in the book, so I recall them as well as I can. I have changed some names to protect privacy and to fulfill my obligation as a counselor. Sometimes, I have simply omitted the last names of those who were public figures at a certain time but who may not wish to be in public view now. Some people who shared these events will remember them differently. That is, to repeat, the nature of memory. It is, for lawyers in the common law tradition, the nature of what we do. We recreate events from the varying and fallible recollections of witnesses. This book contains what I saw, or at least remember having seen. I have argued seven Supreme Court cases, and briefed more. I have argued more than 100 federal appeals in almost every circuit, and have been in countless federal and state trial courts, as well as before tribunals in other countries. To talk about the theme of justice requires that I choose from these experiences. Those who have known me will find details scarce about some personal relationships. In telling this story, I am not entitled to usurp the stories of others, which they may prefer to keep to themselves. My friend John Mage said that it is too soon to be writing anything like a memoir, because it can only lead to embarrassment. If I go ahead and do more things than are recounted here, I will have to put out a sequel, and soon I become like one of those aging musicians who keeps doing farewell tours. There is merit to that view. Somebody said: “When is your life work finished? Are you alive? Then, not yet.” Race Horse Haynes was questioning a prospective juror in Tyler, Texas and asked her, “Have you lived in Tyler all your life?” She said, “Not yet.” Same idea. So this is not a complete work. I want to tell some stories for their own sake, and hope to entertain, instruct and maybe point a direction. I will in this retelling be unjust to hundreds of people with whom I have worked, for I will not mention all of their names and all they did. Brecht, writing of Cortez, asked, “were there no cooks in his army?” More than cooks, I tell you. Comrades, colleagues, clients, friends and lovers were all along on these journeys. I salute them all, and apologize if their recollections and mine diverge. Mary Kay Rockwell had the idea for this book, and Priscilla Schwab edited it with customary patience and flair. Caeb Colravy and Rachel Gader were my diligent research assistants. St. Francis, it is said, prayed to understand and not to be understood. It would be entire vanity for me to suppose that this book has no element of self-justification in it. But I have tried, now as with the other things I have written, to keep all that to a minimum. The first three chapters of this book are chronological, charting my path into the legal profession. The later ones are thematic, grouping cases and other struggles that focused on particular issues. In deciding to become involved in a case, or in looking back SENSING INJUSTICE, DRAFT OF 7/11/13, PAGE 3 in self-evaluation, I have tried to see how the case jarred awake my sense of injustice. The thematic organization seems to make that analysis clearer. To be sure, many of these cases overlap, and the arrangement is necessarily somewhat arbitrary. When a predominantly black university fires a professor for expressing his views on the Vietnam war, is that a civil rights, free speech or antiwar case? It is, of course, all three, but you will find it in the chapter on free speech and academic freedom. Where possible, I have put in citations to cases, court records, and historical accounts. You will find these in Chapter Notes, so as not to break up the text with footnotes. In several places, I have borrowed from articles and books that I wrote, and those attributions are in the Chapter Notes as well. SENSING INJUSTICE, DRAFT OF 7/11/13, PAGE 4 Prologue All rise! The Supreme Court of the United States, November 20, 1969. I sat at counsel table, ready for my first Supreme Court argument. Chief Justice Warren Burger, Associate Justices William O. Douglas, Hugo Black, John M. Harlan, William J. Brennan, Jr., Potter Stewart, Byron R. White, and Thurgood Marshall. Their chairs were not all alike. Each had his own. The chamber is massive, with imposing columns and bas-relief. You can tell that William Howard Taft had a hand in designing it. Yet the space between counsel and the Justices is relatively small, the setting more intimate than many federal courts of appeals and even some district courtrooms of the older, ceremonial variety. It can’t, I thought, be better than this. Now, after hundreds more cases, hearings and trials I have lost count, I am moved to deconstruct that thought. “It can’t be better than this.” “This” What was “this?” I had been a bar member for little more than two years. Mel Wulf of the American Civil Liberties Union asked me to brief and argue this case. Because I had not been admitted to the bar for three whole years, Mel had to file a motion to admit me pro hac vice, for this time only. This was an oral argument. Thirty minutes on a side, down from the hour on a side that the Court used to provide. I had been to the Court. I had helped Edward Bennett Williams prepare to argue. But “this” was my argument, or as much mine as it could be after weeks of working on it with co-counsel and days of intensive going over every possible question the Justices might ask. In retrospect, it is arrogant to think of “this” as my argument. On October 16, 1967, as part of a nationwide protest, David Earl Gutknecht had tossed his draft card on the ground in a gesture of protest against the Vietnam War. His local draft board punished him for this act by calling him for immediate induction. He refused to submit, and was tried, convicted and sentenced to four years in prison. If I lost, he would join some 3,000 other young men in federal prison who had done similar things with similar consequences. So “this” was David Gutknecht’s argument, just as one of my later cases was Gary Graham’s argument, and one was Dorsie Johnson’s argument. The State of Texas killed those two young African-Americans, even though the jury was never told in so many words that their youthful age could mitigate against a sentence of death. “This” is a search for at least five votes out of nine, and if you only get four you lose. It is so easy for to forget that it is not about them, but about the client. Emile Zola is reputed to have said of Dreyfus “he is the one who has not understood it at all. He is completely unworthy of the Dreyfus affair.” “This” argument was unique in Supreme Court history. At the government’s counsel table sat William Ruckelshaus, an Assistant Attorney General. The Solicitor General of the United States, Erwin Griswold, sat in the spectator seats with his arms folded. Griswold, who had been Dean of Harvard Law School, looked pleased to be there, and especially pleased to be sitting a couple rows back from Ruckelshaus. The Solicitor General is the government’s lawyer in the Supreme Court, and supervises most government appellate litigation. Supreme Court law clerks seek jobs in the “SG’s office.” In Gutknecht’s case, Erwin Griswold thought that the government’s SENSING INJUSTICE, DRAFT OF 7/11/13, PAGE 5 position was wrong. He told Attorney General John Mitchell that he would not sign the government’s brief. This was 1969, of course, well before Attorney General Mitchell and his cohorts were convicted of obstruction of justice and other crimes they committed along with President Nixon.