UCLA National Black Law Journal

Title The Viability and Reliability of the U.S. Supreme Court as an Institution for Social Change and Progress Beneficial to Blacks - Part II

Permalink https://escholarship.org/uc/item/4c3948j6

Journal National Black Law Journal, 3(1)

ISSN 0896-0194

Author Tollett, Kenneth S.

Publication Date 1973

Peer reviewed

eScholarship.org Powered by the California Digital Library University of California THE VIABILITY AND RELIABILITY OF THE U.S. SUPREME COURT AS AN INSTITUTION FOR SOCIAL CHANGE AND PROGRESS BENEFICIAL TO BLACKS - PART 11*

By KENNETH S. TOLLETT Distinguished Professor of Higher Education Howard University, Washington, D.C.

It is the part of a wise man not to bewail nor to deride, but to understand. -BARUCH SPINOZA'

I. INTRODUCTION Before undertaking the above major task, the perspective and methodology of THE WARREN COURT generally was an the writer need expansion and clarifica- instrument of social change and progress tion. First, the writer consciously and beneficial to Blacks.' However, the Unit- critically scrutinizes the Court, its ed States Supreme Court as an institution members, and its decisions in terms of historically has not served an especially their purpose, operation, and effect or beneficial role in the lives of Blacks. The impact vis A vis the Black masses. Court, like all other major institutions in Nevertheless, the writer's legal and other America, has reflected much of the over- academic training and many of his in- all racism of the society at large.' The tellectual tools and modes of analyses are Warren Court moved the Court in a sig- Western or white nurtured. nificantly different direction from its past Second, emphasis is given to five by liberally interpreting and applying the methods or themes in analyzing consti- doctrines of judicial review,4 actively tutional law data and phenomena. They recognizing egalitarian humanism and 5 * This is the second and final installment of a two-part article projecting individual integrity, and boldly affir- the direction in which the Nixon-Burger Court is moving. For the first ming the positive content and worth of installment see,Tollett, The Viability andReliability ofthe U.S. Supreme 6 Court as an Institution for Social Change and Progress Beneficial to American citizenship. The major task of Blacks, 2 Black L. J. 197(1972); hereinafter cited as Tollett, Viability and this paper is to compare the Nixon- Reliability of U.S. Supreme Court, 2 BU 197(1972). The research assistance of Ms. Marta Berkley. a third year law student Burger Court's performance with the at Howard University, and the partial support from the Faculty Warren Court's performance in these Research Program in the Social Sciences, Humanities and Education at Howard University are gratefully acknowledged. areas and project the future direction in I. Quoted in Goodwin, The Supreme Court: Viable Fallibism or Fatal which the Nixon-Burger Court is mov- Infallibility, 23 Vand. L. Rev. 251, 252 (1970). 2. Tollett, Viability and Reliability of the U.S. Supreme Court, 2 BLJ 197 ing. The completion of this task will sug- (1972). gest the viability and reliability of the 3. See, Bums, Can a Black Man Get a Fair Trial in This Country? NY. Times, July 12, 1970(Magazine) at 5. Haywood Burns, Director of the Court as an institution for social change National Conference of Black Lawyers writes: and progress beneficial to Blacks. Al- "From the very first, American law has been the handmaiden of American racism. It has been the means by which the generalized though the evidence is mixed and is racism in the society has been made specific and converted into the not overwhelming, the preliminary ver- particularized policies and standards of social control." Id. 4. Tollett, supra note 2, at 201-205. dict from the Black perspective is that the 5. Id. at 205-208: 215-218. Court has some viability and little 6. Id at 218-219. The Court reinforced its recognition of equality by ex- panding the concept of state action and removing restrictions upon the reliability. power of Congress to enforce civil rights. Id. at 209-211; 211-215. PAGE 6 THE BLACK LAW JOURNAL are contextual analysis, biography, in- poses that the Nixon Administration has tellectual integrity, label logic or concep- corrupted language and perverted law tualism, and activism versus restraint. and order, and has the stench of scandal.9 Contextual analysis emphasizes the The hypothesis posits that the Presidency historical, economic, political and so- is the beneficiary of a malignant sym- cial setting of Court decision-making. biosis. On the one hand, the President is Biographical analysis concerns the spe- behaving and becoming king-like which cial impact of the Court's personnel means he and especially those in high (their socio-cultural and eco-political places closely associated with him feel backgrounds) upon decision-making. In- they are above the law and governmental tellectual integrity involves the issue of tradition. On the other hand, the general intellectual honesty and neutrality of public yearns for and needs some major principle in the decision-making process. institutional structure which it can res- Label logic or conceptualism signifies the pect, trust, and have faith in. The special mode of reasoning most fre- President, whoever he is, is the ben- quently practiced by the Court in dis- eficiary of this need and yearning. posing of constitutional controversies. Thus, he and many closely associated Thus, decisions are largely based upon with him feel they can get away with verbal labels or characterizations of is- practically anything, whether it is bomb- sues and facts. Activism and restraint in- ing and killing in Indochina," bugging volve the questions and issues of how and eavesdropping in the Watergate,' or actively or aggressively the Court should impounding and reallocating money in pursue some idea(s) of progress and jus- the Treasury. 2 That which is corrupt or tice in its decision-making process. perverse or smells in the Nixon Ad- The above five methods or themes of ministration is overlooked, rationalized, analysis indicate the awesome complex- or disbelieved by the general populace. ity and difficulty of rigorous analysis. Indeed, it appears that the racist and an- Rarely, if ever, are all five themes or ti-Black implications of a movement methods pursued both thoroughly and toward a second post-Reconstruction are simultaneously. Each method or theme warmly approved and embraced by the may be regarded as an element in a ma- majority of the white populace. trix for the explication of a decision, a The relationship of this hypothesis to group of decisions, a term, or an era. A the Nixon-Burger Court and to the mixture of intuition, judgment, time Nixon appointed Justices in particular is limitation, resources, and analytical util- ity determines which method or com- 7. Tollett, supra note 2 at 198. 8.Id at 197. bination of methods or themes is pursued 9. Id.at 98. most thoroughly. 10. "Prior to the renewed bombing, no U.S. military commanders were expressing any fears of a new North Vietnamese assault.Infact, there Third, reference must be made to the was widespread agreement that the North had lost so many troops (an hypothesis set forth in the first install- estimated 120,000) and so much equipment and had been so badly 7 battered in the past eight months that it would take a minimum of a ment of this article which purported to year and a half for them to rebuild their forces. explain the popularity of the Nixon Ad- "Thus the current bombing campaign, in the opinion of many of these sop officials. is essenmialfy a political opea'fion. That may be a ministration and the meaning of which valid use of military power, as some see it,but it is not the way it is might directly or indirectly influence the being explained publicly. M. Getlcr. Bombing: the Damage at Home, The Washington Post. Nixon-Burger Court. The hypothesis was December 24.1972, at DI. and is largely the product of contextual 1I."Denials and Still More Questions." Time. October 30,1972, at 18-19. See also,Bernstein and Woodward. "Bugging 'Participant' Gives De- analysis. It practically supposes that the tails," The Washington Post. September 11.1972, at Al. "FBI Finds Nixon Administration is implicated "in Nixon Aides Sabotaged Democrats." The Washington Post, October 10. an apparent movement toward a second 1972, at Al. 8 12. L. Cannon, "Nixon Defends Funds Impoundment." The Washington post-Reconstruction." It further sup- Post, February I, 1973. at A12. THE BLACK LAW JOURNAL PAG E 7 THE BLACK LAW JOURNAL PAGE 7 problematical and only can be discussed that he has two 'green' Justices who are with great delicacy and circumspection. unfamiliar with Court customs, is trying The worst that can be said has already to arrogate new powers to himself"" been written, namely, "Chief Justice Although it may be a bit ungracious for Burger and his Nixon-appointed as- some Justices to think Burger is a bit sociates .. . [are] weather vanes who will pompous because he comes and goes in a point the Court in whatever direction limousine driven by an armed chauffeur Nixon winds blow and backlash and has installed expensive plastic plants counter-currents fl'w."'3 However, the in front of the Court, it is a serious matter worst said is incomplete, ambulatory, that last Term (mid-April, 1972) "the and not entirely true. Nixon appointees U.S. Supreme Court suffered its first constitute only four justices of the nor- known racial incident."' 9 Justice Thur- mally needed five-man majority. Nixon good Marshall felt he had been racially appointees serve for life, but Nixon slighted because after the Chief Justice serves, and thus his winds will blow, only postponed a conference date, which presumably for four more years. Nixon coincided with the burial of a relative of appointees have resisted some backlash Justice Marshall, the original date was counter-currents. Indeed, two very astute reinstated without notifying Justice and careful observers of the Court have Marshall. Chief Justice Burger "felt he been impressed more with the Nixon- should attend [former High Court Jus- Burger Court's continuities than with its tice] Byrnes' funeral, which was on the 20 discontinuities. 14 new conference date." Thus the con- Yet there are disturbing sounds ference was switched back to the date leaking out of the Nixon-Burger Court of the funeral of Justice Marshall's rela- which resonate with some of the noises tive and cases were disposed of without coming from the Nixon Administration. him." Justice Marshall told friends that " 'apparently the Chief Justice Burger sometimes runs the funeral of a white man Court with a "heavy-handed style."" He is more important than the funeral of a is trying to break with the tradition which Black man.' "22 requires the senior Justice in the Except for the last incident, each other majority, usually Justice William 0. incident or phenomenon in isolation is Douglas, to assign opinions when the not particularly significant but when Chief Justice sides with dissenters in the combined they are no less than aus- minority. 6 Some Justices see this practice 13. Tollett. supra note 2,at 198. of the Chief Justice as only promulgating 14. Kalven. The Supreme Court, 1970 Term - Foreword: Even When a inefficient mistakes. Others see it as a Nation is at War, 85 Harv. L.Rev. 3,4-5 (1971); Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a deliberate attempt by Burger to gain new Changing Court. A Model for A Newer Equal Protection, 86 Harv. L. powers for himself. There is even the hint Rev. 1 (1972). 15. Totenberg, Supreme Court Seethes, The National Observer, June 17, that Burger is as "tricky" as his appointer, 1972. atI. Dick Nixon, has been "reputed" to be. 16. Id 17. Id. Nina Totenberg, a reporter for a highly 18. Id. respected conservative weekly, reports: "Some Justices chuckled knowingly when Constitutional scholar Philip Kurland published an article asserting that Burger thinks of Some Justices even believe that the Chief himself as 'Lord Chancellor of the United States'." Id.at 14. on occasion casts "phony votes" in 19. Id. at1. 20. Id. conference, voting with the majority so that 21. Totenberg further reports: he can assign the opinion and then dissent- "When Marshall learned what had happened, he was outraged and ing from it when it is finally circulated. hurt. He fired offa 11/ page angry memo to his colleagues, noting (Emphasis Added) 7 that never in his tenure had he heard of a conference being held without allJustices being informed. She further reports "that a few Justices Marshall's memo stung the other Justices. They reheld the entire day-long conference, with Marshall present." Id. are quite convinced that Burger, knowing 22. Id. PAGE 9 THE BLACK LAW JO URSA L PAGE 8 THE BLACK LAW JOURNAL picious developments. Other matters pact have steadily increased in terms both could be considered, such as Justice of personnel and of atmosphere. Perhaps, Rehnquist's refusal to disqualify himself strictly speaking, a Nixon-Burger Court in a number of cases in which he had will come only after Nixon has appointed been spokesman for the Government 3 a majority of the sitting Justices. and Chief Justice Burger's apparent Thus far, Nixon has been considering implication in lobbying activities against and nominating, with a remorseless a products safety bill,24 however, it should singlemindedness, conservative "strict be even more illuminating to turn to the constructionists" who by and large reflect 27 actual decisions and opinions of the his judicial philosophy. Court as the primary basis for projecting Although the first three Supreme the direction in which the Nixon-Burger Court Terms under Chief Justice Burger Court is moving. Resonances have been will be reviewed, the 1971 Term which established between the Nixon-Burger contained four Nixon appointees from Court and the Nixon Administration. January 7, 1972, on requires and deserves There are noises in and out of chambers. greater attention because it provides a Still more importantly, the sounds which more rational basis for projecting where reverberate through the Court's decisions the Nixon-Burger Court is drifting. The and actions indicate whether Blacks can 1970 Term which fielded the "Minnesota expect to hear songs of joy and uplift or Twins," Blackmun and Burger, deserves dirges of despair and discord coming less attention since it contained only two from the Nixon-Burger Court. Justices particularly recruited to execute Nixon's game plan for the Court. And the 1969 Term deserves least attention in II. STATUS OF CONSTITUTIONAL 28 LAW AFTER THREE TERMS terms of Nixon influence and impact. UNDER CHIEF JUSTICE WARREN Warren E. Burger assumed the Chief E. BURGER Justiceship of the Supreme Court on June 23, 1969, the date Chief Justice In general the newer members of the Warren retired. It has already been writ- Court are not inclined to overrule many ten that the Court under Burger "appears previous decisions. But, with exceptions ... , they want to limit holdings regarding somewhat adrift, sometimes charting a race, the rights of persons suspected of course back toward the nineteenth cen- crime or witnesses in criminal prosecutions, tury and at other times, maintaining the and rights arising under the First Amend- liberal-progressive course of the Warren ment. 29 2 Court." In the words of Professor -ROBERT M. HUTCHINS 5 Gunther the High Tribunal is Some explanation should be given for ... a transitional Court accepting much the difference in labeling various of received doctrine as it happened to stand Supreme Courts. The first installment of at the end of the preceding era, a Court this one have referred to gnawing at the fragile edges of the heritage this article and without confronting its underpinnings, by the "Warren Court" and to the "Nixon- and large a Court standing pat and surer Burger Court." The question logically arises why not speak of the present Court 23. Seepp. 11-14 infra. as the Burger Court? Ultimately, it may so 24. See note 49 and accompanying text infra. be labeled, but presently "Nixon-Burger" 25. Hutchins, The Ne. Supreme Court, The Center Magazine, September- /October 1972, at 15-16. is used to connote the influence and im- 26. "President Nixon has demonstrated that he has the political savvy to in terms not capitalize on America's recessive bigotry by giving it dignity." W. pact of Nixon on the Court Raspberry. Critical Timefor Blacks, The Washington Post, November 8, only of his appointments but also of his 1972, at A27. creating a political, moral and economic 27. See Tollett, supra note 2 at 197, n. I. 26 28. For a briefstory ofNixon's Court denigrating nominating record see ld. atmosphere. Nixon's influence and im- 29. Tollett, supra note 2 at 197. THE BLACK LAW JOURNAL PAGE 9 THE BLACK LAW JOURNAL PAGE 9

about where it does not want to go than roughly in the same order they were dis- 30 about articulating new directions. cussed in the first installment.36

Notwithstanding the ambiguous as- A. The Management of Judicial Review37 surance Blacks may derive from the un- certain direction in which the Nixon- Both Taft and his present successor [Bur- Burger Court is sailing, the ambiguity ger] seem to have regarded their proper role themselves suggest the as more akin to that of a Lord Chancellor and uncertainty than of a Lord Chief Justice .... "Taft's unreliability of the Court as an institution great place in judicial history ... will be as a for social change and progress beneficial law reformer." It may well be that Chief to Blacks. Furthermore, there are a Justice Burger aspires to a similar place in number of decisions and positions enun- history. ... Taft's extra judicial functions the Court about which there did not add to the strength of the Court or to ciated from his role as presiding officer of the Court. The is ominous certainty. Chief Justice of the United States is not Civil liberties and freedom of religion particularly well-equipped to supervise have an erratic and most problematic substantive or procedural law reform future.3' The Court's treatment of con- throughout the nation. Such behavior at worst gives the impression of attempting to gressional enforcement of civil rights circumvent the Court's own decision by probably will remain static except that judicial and legislative politicking because the Court may approve far-reaching con- he cannot command a majority of that tribunal. gressional power where it negatively 3 B. KURLAND 8 affects Blacks. The concept of state ac- -PHILIP tion will be diluted, certainly not ex- Chief Justice Burger "has emerged as panded.33 Blacks as an identifiable group leader of the reform and modernization will find a great threat to their interests in movement in state as well as federal decisions of the Nixon-Burger Court ex- courts."39 Just as President Nixon is de- cept when their claims are framed in terms reminiscent of nineteenth century 30. Gunther, supra note 14 at 6. 31. See "Civil Liberties and Freedom of Religion," pp. 44 infra. property interests or coincidental to the 32. See "Court Treatment of Congressional Enforcement of Civil Rights." nouveau malheureux, such as middle class pp. 29 infra. 33. See "Dilution of State Action Concept," p. 27 infra. white women, the aged, and non- 34. E.g., Roe v. Wade, 41 LW 4213 (Jan. 22, 1973) and Doe v. Bolton, 41 smokers.34 Although there have been and L.W. 4233 (Jan. 22, 1973) (holding that the right of personal privacy includes the abortion decision which says a state has very little, if any, will continue to be a few decisions pro- power to regulate prior to approximately the end of the first trimester tecting the rights of the accused, an area and after then only may regulate abortion procedures reasonably relat- ed to maternal health). It should be noted that many 1972 Term of greater threat and danger is that of the decisions are not covered in this article. The opinions primarily under rights of the criminally accused.3" The discussion may be found in volumes 396 through 408 of the United States official reports. way judicial review will be operated or Reference to non-smokers is a symbolic reference to ecophilism and a managed under Burger will pose the facetious allusion to Chief Justice Burger's attack on AMTRAK for permitting smoking in its club cars. greatest threat to the needs, rights, and Reference to the aged is that they may soon become a new passing aspirations of Blacks. The Nixon-Burger concern. See Tollett, What Price Ecology? The Center Magazine, July 1970, at 20. Court is generally taking a less liberal See also Jonathan Kozol, Moving On - To Nowhere, January 1973, stance toward the doctrines of judicial Saturday Review of Education, December 9, 1972, at 6. 35. See"Rights of the Public or'Law and Order': Waffling the Rightsof the review which determine the extent to Accused," pp. 34 infra. which the Court will intervene on behalf 36. See "Equality Under the Law." "The Concept of State Action." "Court Treatment of Congressional Enforcement of Civil Rights," "Rights of of individuals or groups seeking to in- the Accused," and "Civil Liberties and Freedom of Religion," begin- voke its jurisdiction to protect and secure ning respectively Tollett, supra note 2 at 205,209, 211,215,218. 37. This subject was discussed in the first installment under the heading of equality, liberty, participation and fair "The Operation of Judicial Review," Tollett, supra note 2 at 204-205. treatment. 38. 1970 Term: Notes on the Emergence of the Burger Court, 1971 THE SUPR ME COURT REVIEW 265, 270 (P. Kurland ed. 1971). The Nixon-Burger Court's treatment 39. Swindler, The Chief Justice and Lau Reform, 1921-1971, 1971 THE of the above topics will be considered SUPREMECOURT REVIEW 241 (P. Kurland ed. 1971). PAGE 10 THE BLACK LA W JOURNAL PAGE 10 THE BLACK LAW JOURNAL

termined to streamline and modernize the Great Society by his "administra- the management of government," Chief tive tidying-up" and "small Super- Justice Burger is determined to moder- Cabinet"? 6 nize the management of the judicial sys- The Chief Justice broke even more tem. In "a unique event - the first State interesting turf in his third annual State of the Judiciary address by a Chief Justice of the Judiciary message before the of the United States-" (emphasis added) American Bar Association. He said: Burger called for the application of In recent years Congress has required "modern business" techniques "to the every executive agency to prepare an "en- administration or management ...of the vironmental impact statement" whenever a courts."'" Although the words in quota- new highway, a new bridge or other federally funded projects are planned. I tion marks were contextually restricted to suggested with all deference, that everypiece "the purely mechanical operation of the of legislation creating new cases be accom- courts,"42 nevertheless they display a panied by a "court impact statement", technocratic managerial mind-set which prepared by the reporting committee and experienced plaintiff lawyers would submitted to the judiciary committees of the Congress with an estimate of how many avoid like a plague in choosing juries in more judges and supporting personnel will most personal injury cases, and likewise be needed to handle the new cases. 7 experienced defense lawyers would skirt in criminal cases. Such mind-sets are Although Burger disclaimed any inten- frequently insensitive to human suffering tion to "suggest that Congress reject and impatient with the usually despised legislation simply because it would person caught up in the operations of the increase litigation in the federal courts,''" criminal administration process. Indeed, Representative John Moss (D-Califor- although recognizing that the Court had committed itself "to values higher than 40. See,G. Homer, Nixon Takes Initiativein Streamlining Government, The ... Washington Star-News, January 6, 1973. at A4. cols.1-8. The President pure efficiency when dealing with made three of his Cabinet members overseers of policy infields involv- human liberty," the Chief Justice seemed ing seven Cabinet departments and several independent agencies. to complain about the long time taken in Homer further reports: 'The action .. isdesigned to achieve as much as he can without the trial of a criminal case "because of the legislation - toward his reorganization plan. which Congress has closer scrutiny we now demand as to failed to acton for some 19 months.'" Id. atCol. 1. 41. Chief JusticeBurger, The State of the Judiciary- 1970, 56 A.B.A.J. 929 things as confessions, identification wit- (1970). (Emphasis added) nesses and evidence seized by the police 42. More money and more judges alone are not the primary solution. Some of what iswrong isdue to the failure to apply the techniques of "43 modem business to the administration or management of the purely The organizational and managerial mechanical operation of the courts- of modern record keeping and systems planning for handling the movement of cases. Some isalso due turn of Burger's mind, which echoes to antiquated, rigid procedures whichnot only permit delay butoften Nixon's mind, is underlined by his re- encourage it." Id. 43. Id at 930. emphasis of the need for a Joint Judi- 44. See ChiefJustice Warren E.Burger, The State ofthe Federaliudiciary- 197157 A.B.A.J. 855-866 (1971). ciary Council in his second State of the 45. Id. Judiciary speech.' The Council, repre- 46. See generally, Nixon Counterrevolution, N.Y. Times (editorial). of govern- December 30. 1972 at 20. senting all three branches "President Nixon'sappointments and administrative rearrangements

ment, would "oversee the needs and •... j mreoe than ...administrative tidytg-up.It is... iatended to advance an ideological grand design. By administrative fiatand fiscal problems of the federal court system off Social '45 attrition the President apparently wants to kill many Federal and its jurisdiction. It is difficult not to programs, cut back others and reverse the thrust of Federal policy as it is developed over the last fourdecades. In short. Mr.Nixon seeks to be anxious about this reorganizational accomplish a retrogressive counterrevolution in the guiseof an ad- and administrative oversight of the ministrative reorganization." Id. Treasury Secretary Shultz was made overlord of economic policy, judicial system. May it not be the basis John Ehrlichman, domestic affairs; and Henry Kissinger. foreign affairs. for undoing or undermining the work See also, note 31supra. 47. Chief Justice Burger. The Stateof the Federal Juciciarv-1972, 58 of the Warren Court in the way Nixon A.B.A.J. 1049,1050 (1972). (Emphasis added) is dismantling the New Frontier and 48. Id. THE BLACK LAW JO URNA L PAGE 11 THE BLACK LAW JOURNAL PAGE 11 nia) accused Burger of "arrogant in- During the past two decades, the ad- terference in the legislative process" ministrative office proposed 203 bills, he added. when Burger sent the chief administra- "This takes nothing away from the tive officer of the Federal courts and his legislative prerogative of Congress, but long time associate to meddle in con- simply supplies its members with informa- 52 sumer legislation before Congress tion they need and generally want." because it might increase the caseloads of Yet Blacks and other oppressed un- 49 federal courts. derclasses must wonder about the values The Chief Justice denied meddling but and interests to which Nixon's appoin- said that "he will continue to call atten- tees to the Court are committed. Later, tion to the impact new laws have on the reference will be made to Mr. Justice 5 caseloads of federal courts." However, Rehnquist's thoughts on disqualification. Burger did not deny that he sent In fact, the closing paragraph of a Post Rowland Kirks, a top aide and U.S. editorial is worth quoting at length: Courts Administrator, who was accom- Now comes the celebrated Nixon Court - panied by Washington lobbyist Thomas the court of judicial restraint that the G. (Tommy the Cork) Corcoran, to President is so proud of.... Now comes the House Speaker Albert's office to discuss Chief Justice of the United States, ap- the pending products safety bill. parently caught deep in the legislative Washington Post staff writer MacKenzie process dealing with legislation side by side with a direct party interest. Call it what you reported: will; concern for the caseload of the courts, Corcoran, who represents drug industry ignorance, vanity, lack of balance, or just clients opposed to the products safety bill, plain wrong-headedness. By any of the was quoted last week by columnist Jack names, it demeans the office Mr. Burger Anderson as saying, "Kirks, acting for the holds and gives us some measure of the man chief justice, asked me to take him to the Mr. Nixon chose to lead the Court back to a speaker."si more "restrained and responsible path."53 The bill not only would have created a new products safety agency but also 1. DOCTRINES OF JUDICIAL REVIEW: would permit more consumer law suits STANDING, RIPENESS, ABSTENTION AND against producers and distributors of un- POLITICAL QUESTIONS- safe products. The position reportedly With few exceptions to be noted or taken in opposition to the bill by Kirks discussed later,5 the Court under Burger and Corcoran is very close to the position has been non-liberal in applying the taken by the Chief Justice in his third doctrines ofjudicial review in vindicating State of the Judiciary speech. Indeed, egalitarian values and individual in- The Washington Post later reported that tegrity and in affirming the positive con- Burger wrote in the Judicial Center's tent and worth of American citizenship. newsletter to all federal judges that he a) Standing - Although in the 1969 was far more restrained than Chief Jus- tice Taft and added: 49. J.P MacKenzie, ChiefJustice Denies Lobbying Charge, The Washing- "I intend to continue to stimulate ton Post, October 14. 1972, at Al. interaction with members of the Judiciary to 50. Id. develop consensus on what our needs are 51. Id. at AlO, col. 4. and to see that Congress and the public are 52. B. Schweid, Burger Defends Advising Congress, The Washington Post. December 26, 1972.at A2. informed on the problems of the courts." 53. ChiefJustice Burger and Judicial Restraint. The Washington Post, Oc- tober 12. 1972.at A-18. Federal laws require the administrative 54. In the first installment judicial review in operation was discussed under courts, the federal five subsections: 1. Standing. 2. Abstention. 3. Removal. 4. Habeas office of the federal Corpus, and 5. Political Questions. Tollett, supra note 2. at 201-205. judicial center and the chief justice to sub- 55. E.g., notes 59, 74 and accompanying text infra. Peters v. Kiff, 407 U.S. mit recommendations to Congress, Burger 493 (1972) (reversing conviction of a white man where Blacks were said. excluded from both the grand jury and the petit jury.) PAGE 12 THE BLACK LAW JOURNAL PAGE 12 THE BLACK LAW JOURNAL Term the Court took a liberal standing service by such an organization, just as a view of the administrative process,"6 black Pennsylvanian would suffer cogniza- ble injury if the State were to enforce a generally the Court has taken a less lati- segregated bus system, whether or not he tudinarian view than did the Warren had ever ridden or even intended to ride on Court toward standing or who may bring such a bus." an action over which the Court should b) Ripeness - Just as the denial of take cognizance. In Boyle v. Landry" standing operated in tandem with the during the 1971 Term the Court held that denial of civil rights in the Moose Lodge seven groups of Black Civil Rights Act case, so the denial of ripeness' operated plaintiffs had no standing to seek de- in tandem with the infringement of civil claratory and injunctive relief against liberties in Laird v. Tatum.6 Laird v. Ta- the enforcement of an Illinois intimida- turn involved widespread Army in- tion statute where none of them had ever telligence "surveillance of lawful civilian been prosecuted, charged, or even political activity." The activities subject- arrested under the particular statute. 8 ed to Army surveillance were protests Only Mr. Justice Douglas dissented. against government policies. The Army Moreover, during the 1971 Term except 9 contended the surveillance was necessary for Eisenstadt v. Baird, the Court con- for obtaining information to deal with tinued its new hostile attitude toward potential. disruptions. The plaintiffs finding standing, even in close cases in- volving the Administrative Procedure Act.' In still another decision in which it 56. Association of Data Processing Service Organizations v. Camp, 397 U.S. 50 (1970) (relaxing requirements for standing to seek judicial review of displayed a callous attitude toward who administrative action by holding data processors' association and data could complain about what, the Nixon- processing corporation had standing to seek review of Comptroller of Currency's ruling that national banks may make data processing ser- Burger Court made one of its most vices available to other banks and to bank customers); Barlow v. Collins, 397 U.S. 150 (1970) (holding that a tenant had standing and judicial ominous decisions concerning Blacks. review was not precluded concerning the Secretary of Agriculture's The case arose out of the dining room regulation permitting tenant farmers to assign federal farm payments to expulsion of a Black guest of a white their landlord to secure rental obligations). 57. 401 U.S. 77 (1971). member of a Moose Lodge. In the course 58. Mr. Justice Douglas wrote: of reversing a three-judge district court "In sum, Landry and his group allege the 'intimidation' section is one of se-esal statutes wh'ih isht state Is using en masse as pas of a plan to decision favorable to the Black guest, the harass them and discourage their exercise of their First Amendment Court held through Justice Rehnquist rights. There is thus a lively and existing controversy concerning First Amendment rights. And I believe that the federal court acted in our that the guest had no standing to finest tradition when it issued the stay." 401 U.S. at 64. challenge the Lodge's membership 59. 405 U.S. 438 (1972) (holding that a person convicted for violating a Massachusetts statute forbidding the distribution of contraceptive ma- policy since his injury resulted not from terials to unmarried persons had standing to assert the constitu- the lodge's racial membership restric- tional rights of the unmarried persons). 60. Sierra Club v. Morton. 405 U.S. 727 (1972) (holding that the Sierra Club tions but from its racial restrictions on6 which was a membership corporation with a special interest in con- who may be guests of its members. ' serving and maintaining national parks did not allege that it was in fact so injured as to render it "adversely affected" or "aggrieved" within the Rehnquist emphasized the fact that Irvis meaning of the Administrative Procedure Act and thus establish stand- had never sought to become a member of ing to challenge the Interior Department's plan to develop Mineral King 62 Valley. Both Blackmun and Douglas dissented, Blackmun questioning the lodge. Justices Douglas, Brennan the rigidity and inflexibility of procedural concepts in the face of new and Marshall dissented. Justice Douglas, issues). 61. Moose Lodge No. 107 v. Jrvis, 407 U.S. 163 (1972). For discussion of joined by Justice Marshall wrote con- important "state action" aspects of this decision see "Dilution of State Action Concept," p. 27 infra. cerning the standing issue: 2 62. But see, Tollett, supra at 202 and n.n. 23-26. 63. 407 U.S. at 183-184 n.4. In my view moreover, a black Pennsyl- 64. "The basic objective of the law of ripeness is easy to state: Judicial vanian suffered cognizable injury when the machinery should be conserved for problems which are real and State supported and encourages the main- present or imminent, not squandered on problems which are abstract tenance of a system of segregated fraternal or hypothetical or remote. The objective applies to all work of the courts..." K. Davis, Administrative Law: Cases, Text, Problems 397 organizations whether or not he had himself (1965), sought membership in or has been refused 65. 408 U.S. 1 (1972). THE BLACK LAW JOURNAL PAGE 13 THE BLACK LAW JOURNAL PAGE 13 sought declaratory and injunctive relief Court. Because Rehnquist had appeared on the ground that the governmental as an expert witness for the Justice surveillance has a "chilling effect" upon Department before a Senate hearing the exercise of First Amendment rights.66 investigating the subject matter of the Chief Justice Burger wrote for the 5-4 case, had intimate knowledge of the majority that the plaintiffs did not point evidence underlying the allegations in to any definite injury but only to a fear the case, and had declaimed publicly the that the information collected might be lack of merits in the plaintiff-respon- improperly used in an unspecified man- dents' suit, the respondents had moved ner at some future date. For the first that Rehnquist disqualify himself from time the Court demanded ripeness in a participating in the decision. If he had proceeding alleging a chilling effect upon disqualified himself, the decision below First Amendment rights. Burger required against the Army surveillance would specific present objective harm or a have stood. Rehnquist insisted he had threat of specific future harm; however, participated neither of record nor in an theretofore the essence of the "chilling" advisory capacity in the conduct of the effect doctrine was that the governmental case. Further, he argued he was not a action complained of discouraged or material witness in the case and his tes- chilled the exercise of freedom of timony before the Senate hearing was not expression or other fundamental rights. based upon any personal knowledge of Furthermore, Burger minimized the the case.68 The Washington Post made the scope and extent of the Army sur- following editorial comment upon veillance.67 Rehnquist's decision: Justices Douglas, Marshall, Brennan, Mr. Justice Rehnquist's participation in a and Stewart dissented. Justice Douglas number of cases last spring of which he had emphasized the fact that the respondents official cognizance while serving as a prin- charged that the purpose of the sur- cipal policy-making figure in the Depart- ment of Justice gave us some pause about veillance was to harass, intimidate, and his proclivities in these matters. His refusal deter them from political protest. He this week to stand aside when directly agreed with the lower court's holding that challenged in an apparently clear conflict is probably a definitive statement about his the Army surveillance exercised a present 69 inhibiting effect upon the full expression sensibilities. of First Amendment rights. Further Jus- Since this memorandum was filed tice Douglas insisted that surveillance of during the early days of the 1972 Term civilians was none of the Army's consti- little more will be said about it. tutional business and Congress had not authorized it to undertake such a func- 66. See Dombrowski v. Pfister,supra note 2, at 202. tion. 67- But see: "Once begun, the Army's domestic intelligence program grew ex- Justice Brennan felt that the respon- ponentially to a point where its average of 1200 weekly spot or incident dents' contention that the present exis- reports covered just about every kind of political activity within the country, from candlelight peace vigils by church groups to reports tence of the Army surveillance system (based entirely on a photograph taken at a picnic) of a political alliance exercised a present inhibiting effect on between the Reverend Jesse Jackson and Illinois State Treasurer (now Senator) Adlai Stevenson, 111. The Army had agents at both the their full expression and utilization of Democratic and Republican conventions in 1968, infiltrated activist First Amendment rights made the case groups, photographed demonstrators, and even attempted to stir up trouble within radical groups in Chicago. The very size of this in- ripe for adjudication. telligence gathering effort, its indiscriminate nature, and its obtuseness This decision resulted in the unusual (one prominent civil rights leader was described as 'known to have many known affiliations') made it entirely useless for the purpose of event of a justice, Mr. Justice Rehnquist, predicting civil disturbances, its formal justification." filing a memorandum in which he T. Powers, The Government is Watching: Is There Anything the Police Don't Want to Know? The Atlantic Monthly, October 1972, at 53. explained his reasons for refusing to 68. Laird v. Tatum, 409 U.S. 824, (1972). disqualify himself from sitting with the 69. Note 53 supra. PAGE 14 THE BLACK LA W JO URNA L PAGE 14 THE BLACK LAW JOURNAL Rehnquist treated the motion almost en- v. Constantineau.4 Justice Douglas wrote tirely as a question whether he was for the Court that the abstention rule disqualified by 28 U.S.C. §455. Tech- applies only if the issue of state law is nically and legalistically, the memoran- uncertain. Constantineau,however, is out dum makes a prima facie defense of of line with the case-disposing impact of Rehnquist's refusal to disqualify himself. Younger, Boyle. Samuels, Perez, Dyson, Yet his behavior is not inconsistent with and Byrne.5 the suggestion earlier made that officials d) Removal and Habeas Corpus - high up in and associated with the Nixon Removal and habeas corpus are men- Administration feel, think, and act as if tioned only because they were the subject they are above the law, custom, and con- of two subsections in the earlier install- ventional official propriety. ment.76 Both raise questions of equity, c) Abstention - The Court's begin- comity, and the problem of federalism. ning retreat from the "chilling effect" The Warren Court did not break sig- doctrine of Dombrowski while Warren nificantly new ground protective of was still Chief Justice0 practically be- human rights in the removal area. The came a full-scale rout during the 1970 Nixon-Burger Court has not significantly and 1971 Terms. Dombrowski seemed to retreated from the federal courts' have held that the enforcement of vague favorable stance toward habeas corpus.77 and overbroad state statutes which However, since the Chief Justice has chilled the exercise of First Amendment repeatedly indicated he wishes to reduce rights could be declared void or enjoined the caseload of the federal judiciary, it is without the exhaustion of state remedies. just a question of time before the Nixon- Younger v. Harris7 held that Dombrowski 70. See discussion of Cameron v. Johnson. 390 U.S. 611 (1968) in Tollett, did not eliminate the requirement that supra note 2, at 203. n. 35. bad faith or harassment be shown when 71. 401 U.S. 37 (1971). 72, For acase adopting similar abstention policy in declaratory relief casesee an attempt is made to enjoin the enfor- Samuels v. Mackell. 401 U.S. 66 (1971) (holding that where an injunc- cement of a vague or overbroad criminal tion against a pending state prosecution would be impermissible, or- dinarily declaratory relief also should be denied); in declaratory and statute because of its "chilling effect." injunction relief case see Dyson v. Stein, 401 U.S. 200 (1971) (holding in National policy still required federal the absence of finding irreparable injury three-judge district court improperly both declared unconstitutional a Texas obscenity law and courts to abstain from staying or en- enjoined newspaper's prosecution under the law) See also Byrne v. joinining pending state court proceedings Karalexis,401 U.S. 216 (1971): Perez v. Ledesma, 401 U.S. 2 (1971); and 7 2 circumstances. Of Boyle t. Landry, supra note 57. except under special 73. See discussion of "Court's Treatment of Congressional Enforcement of course questions of independent force Civil Rights" p. infra. 74. 401 U.S. 433 (1971). are involved in the federal anti-injunc- 75. The United States Law Week reports that "more than 20 pending cases tion statute, 28 U.S.C. § 2283. It will be were disposed of, or remanded for reconsideration, in the light of the standards" of non-federal intervention in state criminal matters enun- seen that this is one area where the ciated in the above six cases. 40 L.W. 3053 (August 3, 1971). See also Nixon-Burger Court procedurally has Lake Corners Association v. MacMullen, 406 U.S. 498 (1972) (holding it was improper for a three-judge district court to deny injunctive relief continued to be solicitous of civil rights, because of non-justiciability of suit, but it was proper for court to abstain particularly when they are phrased in from enjoining the enforcement of Michigan Watercraft Pollution 3 Control Act of 1970 which prohibited discharge of human waste and terms of property rights. Nevertheless, required certain pollution preventing equipment upon watercrafts. The during the 1970 Term, with Justices Court thought the Michigan statute was subject to state interpretations which would avoid or modify federal consiusional challenges o is. Burger and Blackmun dissenting, the 76. See Tollett, supra note 2 at 203-205. Court held the abstention doctrine did 77. Strait v. Laird, 406 U.S. 341 (1972) (holding that a federal Court in California had jurisdiction to entertain a habeas corpus petition filed by not apply where a state statute permitted an unattached [his commanding officer was not in the California district] the wife or various municipal officials to inactive reserve officer who was seeking discharge as a conscientious objector); Parisi v. Davidson, 405 U.S. 34 (1972) (holding unsuc- forbid, without notice or opportunity to cessful conscientious objection applicant who had exhausted his ad- be heard, the sale or gift of alcoholic ministrative remedies was entitled to prompt determination of his habeas corpus petition which claimed that the Army denied his appli- beverages to a person for a year because cation without factual basis). he was an excessive drinker in Wisconsin But see, Fein v. Selective Service System 405 U.S. 365 (1972). THE BLACK LA W JOURNAL PAGE 15 THE BLACK LAW JOURNAL PAGE iS Burger Court adopts a different posture tion or issue to both the states and the toward habeas corpus petitions in the United States Congress. The case seems federal courts - particularly when they to pose more of a conundrum than a are filed by prisoners. political question. Ultimately, one would e) Politicalquestions-Duringthe 1970 presume that Article I, section 5, that is, Term the Court denied a motion to file an the Senate or House of Representatives original bill of complaint by Mas- should have the controlling say." sachusetts on behalf of its male citizens to Although the discussion of the various challenge the constitutionality of the cases above involving the doctrines of United State's participation in the In- judicial review should not be very en- dochina war, presumably because it was couraging to Blacks the most discourag- a nonjusticiable political question. The ing aspect of the discussion is the memorandum decision gave no reason managerial mind-set of the Chief Justice although Mr. Justice Douglas wrote a and what it portends for the Court, par- dissenting opinion in which he discussed ticularly if another Nixon appointee is both the standing and justiciability ques- added. Justice Blackmun seems less doc- tions. Justices Harlan and Stewart also trinaire and unsympathetic about dissented on the grounds that the motion judicial review than the Chief Justice. should have been set for argument on the Nevertheless, Blacks appear to have questions of standing and justiciability." much to fear from the Nixon-Burger During the 1971 Term, that is, the July Court in its future management of 82 7, 1972, Special Term, the Court stayed judicial review. the decision of a Court of Appeals con- cerning the action of the Credentials 78. Massachusetts v.Laird, 400 U.S. 886 (1970). Committee of the Democratic Party to 79. O'Brien v.Brown, 409 U.S. 1816 (1972). unseat certain challenged delegations. 80. Roudebush .Hartke,405 U.S. 18(1972). 81. But see Powell v.McCornack. 395 U.S. 486 (1968). See also Tollett. The Court stayed the Appeals decision supra note 2. at 205, n.54 and accompanying text. on the ground that it improperly inter- 82. Chief Justice Burger inthe Fall of 1971appointed a study group "to study the case load of the Supreme Courtand to make such recom- jected itself into the political party mendations as itsfindings warranted...." Creation of New National process. The Court had grave doubts Court of Appeals is Proposed by Blue-Ribbon Study Group, 59 A.B.A.J. 139(1973). Th" group recommended the creation of a National Court of about the justiciability of the convention Appeals to winnow or screen cases coming before the United States dispute. Justices Douglas, White, and Supreme Court. The National Court would screen out about 3,200 of the 79 3,600 or more petitions filedeach year requesting review by the Marshall dissented. Supreme Court and pass on to it about 400 cases for itsown further However, earlier during the same screening and decision making. The recommendation and report have already engendered considerable commentary, pro and con. Term the Court implicitly held that the Pro: A.M. Bickel,A Reply to Arthur J.Goldberg: The Overworked political question doctrine did not Court, The New Republic,February 17. 1973,at 17: P.A.Freund, Why We Need the National Court ofAppeals. 59 A.B.A.J. 247(1973). preclude a federal district court from Con: A.J. Goldberg, It Doesn't Need Its Cases "Screened" One hearing an action to enjoin a state Supreme Court, The New Republic. February 10, 1973,at 14;N. Lewin, A RESPONSETO GOLDBERG AND BICKEL: HELPING THE COURT WITH ITS recount in a U.S. Senatorial election. Ar- WORK, The New Republic, March 3, 1973at 15;P. Westen, Threat to the ticle I, section 5 would seem to be a Supreme Court, The New York Review of Books. February 22, 1973,at 29; E. Gressman, The National Court ofAppeals: A Dissent, 59 A.B.A.J. "textually demonstrable commitment" 253(1973). ofjudgment of Senators' qualifications to P. Westen concludes hisarticle by saying that the National Court proposed .illclose the doors open to the Supreme Court. He continues. the Senate, yet Article I, section 4 em- "Power willshift to the palace guard. Citizens will stop appealing to the powers states to set "times, places, and Supreme Court, stop listening to itand believing in it,and eventually stop obeying it." Westen. at 32. manner of holding elections" such that Although Blacks should automatically be suspicious of this proposal. they might go through recount pro- they cannot be sure that a National Court of Appeals would affect them adversely. Presumably the doctrines already well settled by the Supreme cedures." The significance of this de- Court would be screened from itand disposed of on the basis of cision is equivocal. There really ap- precedents: precedents still generally favorable to Blacks because of the work of the Warren Court. After Nixon makes another appointment to peared to be a "textually demonstrable the Supreme Court it might be in the interest of Blacks to keep as many constitutional commitment" of the ques- casesfrom itas possible. PAGE 16 THE BLACK LAW JOURNAL PAGE 16 THE BLACK LAW JOURNAL

B. Black Rhetoric, Conservative Chic and ceeds if it expresses what turns out to be the Authentic Impulse of the Nation3 at last the authentic impulses of the na- tion."89 What are the authentic impulses The Nixon-Burger Court is ap- of the nation, especially regarding proaching egalitarianism, the rights of Blacks? the accused, and libertarianism with less Contextual analysis requires con- zeal than did the Warren Court. 4 It has sideration of certain social, political and diluted the concept of state action and intellectual forces at large in order to drifted back and forth in its interpreta- evaluate and project the performance of tion of congressional enforcement of civil the Nixon-Burger Court in the area of rights. Blatant racial discrimination is equal justice. still sometimes condemned, but there are definite signs that Blacks may stand a 1. THE SOCIO-LEGAL IMPLICATIONS OF better chance of Supreme Court protec- BLACK SELF-DETERMINATION AND tion if their claims are formed in terms of WHITE ANTI-HUMANISM property or quasi-property interests or in terms of new popular concerns and The National Black Political Conven- currents. tion's resolutions against busing and In a critical appraisal of the Warren some super-Black rhetoric do suggest Court, Professor Alexander Bickel of that what the Supreme Court envisioned, Yale has written that what the 1954 -namely, integration, is unwanted. School Desegregation Case85 "ultimately Congressional and Presidential support envisioned seems for the moment unat- of anti-busing legislation indicates that tainable, and is becoming unwanted."- the dominant political forces are con- Indeed, the new Black thrust toward spiring against the effective implementa- decentralization and community control tion of the School Desegregation Case. of schools has headed the School Case Finally, the class and race prejudice of toward irrelevance and obsolescence. the majority of Americans combined Because the Warren Court mistakenly with their anti-humanistic toleration of and over-confidently relied upon an "in- the obscenely fiendish destruction of In- tuitive judicial capacity to identify the dochina by American armaments and course of progress," not only the School their fascination with crypto-racist Desegregation Case, but also many other ideologies suggest that genuine integra- landmark decisions of the Warren Court, tion is neither the authentic impulse of Bickel thinks, are headed toward ob- the United States nor attainable. There is solescence.87 Over time the Supreme some, but little, hope in the face of facts. Court speaks for and with the dominant The National Black Political Conven- political alliance. Although Bickel tion held in Gary, Indiana in March 1972 believes important decisions of the Court demonstrates the extraordinary prob- require "normative choices," the solu- tions to problems of social policy 83. This major new subheading has been added so as to afford the writer an wrought by Court decisions must display opportunity to engage in a more farreaching contextual analysis than that afforded by subsection B in the first installment. All three major sound "prophetic judgments," for the topics of the new subheading suggest serious threats to Blacks. final test of judicial judgment is the fu- 84. Gunther, supra note 14, at 41. 8 85. Brown v, Board of Education, 347 U.S. 483 (1954). ture. Although making a favorable 86. A. Bickel, The Supreme Court and the Idea of Progress, 159 (1970). appraisal of the Warren Court, Professor 87. Id at 173-174. Bickel thinks Baker v. Carr,.369 U.S. 186 (1962) (Reap- portionment Case), and Engel v. Vitale, 370 U.S. 421 (1962) (Non- Charles L. Black, Jr., also of Yale, seems denominational Prayer Case), are also headed toward obsolescence. He to agree with Bickel's ultimate touchs- thinks the same of cases denying aid to parochial schools. 88. Bickel, supra note 86 at 38. tone for sound judicial judgment when 89. C. Black, The UnfinishedBusiness of the Warren Court, 46 Wash. L. Rev. he wrote, "Constitutional doctrine suc- 3,11 (1970). THE BLA CK LAW JOURNAL PAGE 17 THE BLACK LAW JOURNAL PAGE 17 lematic and antinomic predicament of enabled many whites to be against busing Blacks in the United States. The Con- without acknowledging their racist mo- vention spoke of the need to radically tives. change the American system, yet char- Black opposition to busing is fre- acterized it as "decaying and unsalvage- quently a defensive reaction to racism, able." The Convention spoke of its chal- but almost never reverse racism. Con- lenge in these moving terms: ceivably, the national director of CORE, the main nationalistspokesman for com- The challenge is to transform ourselves munity control and antibusing, may from favor-seeking vassals and loud-talking Black is superior to white, but most "militant" pawns and to take up the role think "super-Blacks," to the contrary, are that the unorganized masses of our people have attempted to play ever since we came shouting in the outer darkness of their to these shores: that of harbingers of true frightened perception of white supre- justice and humanity, leaders in the struggle macy. It is a melancholy fact that just for liberation. as most whites deep down think they The Convention of 3,350 delegates are superior, most Blacks deep down feel from 44 states, the Virgin Islands and the they are inferior. Some Blacks are re- District of Columbia set an agenda to coiling from busing and even from in- move toward true justice and humanity tegration altogether because, as the and to lead in the struggle for liberation, resolution's reference to the defamation "recognizing that white America moves of Blacks states, the imperatives of in- toward the abyss created by its own racist tegration implicitly confirm their sub- arrogance, misplaced priorities, rampant liminally held negative self-appraisal. materialism, and ethical bankruptcy." The negative self-appraisal by Blacks The plan, strategy, and tactics of the can beprimafaciedemonstrated by a few movement and leadership are indepen- observations and references. First, one dent Black politics and organized, deter- rarely meets a native born and raised mined national Black power. Black who really thinks Blacks are The rhetoric is high-sounding and generally superior to whites. It is more moving, but supportive of separatist than a coincidence that a dispropor- strategies. Thus it is not altogether tionately large number of black militants, surprising that the Convention in the such as Marcus Garvey, Stokley Car- course of resolving for community con- michael, and Roy Innis, were born and trol of schools' and the establishment of raised in the Carribean. Interesting as- quality education in the Black com- pects of Shirley Chisholm's candidacy for munity spoke of busing as a racist device the Presidential nomination in the designed to destroy Black schools and the Democratic Party were that neither a Black children and as a defamation of a Black male had enough ego and self- whole race by implying that a Black child confidence to push himself forward as the could only learn when sitting in school standard bearer for the new Black poli- next to a white child. The resolution also tical thrust nor a native born Black with asked for the redistribution of educa- a fully continental United States tional resources. The rhetoric and even background made the move. Second, some of the logic of the resolution were many loud-talking Black-is-beautiful, sound, but its politics were fatuous, if not "super Black" males are notorious for stupid. Although there are class con- "making scenes" with dashika on back siderations involved, the overwhelming and blonde on arm. Third, it is extraor- opposed to busing are majority of whites dinary how Blacks frequently take the guilty of unadulterated racism. Yet the 48 Convention's opposition to busing 90. But seediscussion of Whitcomb v. Chavis, p. infra. PAG E 18 THE BLACK LA W JO URNA L PAGE 18 THE BLACK LAW JOURNAL lives of other Blacks but only most Desegregation Case. President Nixon infrequently the lives of whites, except in said, in his antibusing speech of March occasional armed hold-ups while usually 16, 1972, "I am opposed to busing for the under the influence of or driven by the purpose of achieving racial balance in need for drugs. It may be more than a our schools." He further promised to happenstance that during the summer propose "legislation that would call an riots in the middle 1960's many Black immediate halt to all new busing orders so-called snipers did a tot of shooting, but by federal courts." Congress tacked onto very little hitting. How many hostages the Higher Education Amendments of did the Black prisoners at Attica kill 1972 a rider which bans until appeals when "law enforcement officers" have been completed or until January 1, stormed their positions with blazing 1974 court-ordered busing or transfering guns? Whites become unnerved and up- of students to achieve racial balance. tight about Black rhetoric and theatrical It is not generally realized the extent to posturing because they are certain that if which -President Nixon has struck a tight about Black rhetoric and theatrical genuinely and interrelatedly responsive posturing because they are certain that if chord among White Americans in two of business when they made threats and his recent policy statements and in his they would waste blood when their posi- bombing actions in Indochina. The two tion made it tactically feasible.9 statements are his opposition to busing Because of the above and a more or and so-called quotas. Both the two less genuine humanism and commitment statements and the bombing actions bes- to the American Dream, the National peak a callous, antihumanism and racism Black Political Convention clarified and rampant in the American society. modified later during the day its anit- Whereas the hostility to busing is, on the busing resolution. Livingston Wingate of whole, unadulterated racism, the claimed New York moved to disapprove Richard popular support to the escalation of Nixon's and racist opposition to busing killing and destruction in Indochina par- and Attorney A. J. Cooper, founder and tially reflected a poignant desire and in- first president of the Black American sistence to respect the President and Law Students' Association, added the believe in the decency of the U.S. following language to Wingate's motion: Government. If the majority of Amer- Without the benefit of some device such icans saw the escalation and ram- as busing, it is impossible to achieve pant killing in Indochina by U.S. Armed desegregated schools, on the one hand and Forces for what they were, then they because of racism we are unable to achieve would be constrained to see their own community control on the other therefore, we favor busing where it is government as a testable, callous, and necessary to achieve quality education.92 91. The second and third points suggest the subconscious loveand fear Thus in spite of loud-talking "militant" Blacks may have for whites. They are not intended to condemn categorically race mixing nor to condone Blacks lawlessly killing whites. and, perhaps, unwitting pawns of white The epochal Essex sniping in New Orleans, January 7, 1973, may racists, Blacks want busing and integra- foreshadow a subliminally seismic transformation of the third point. For a discussion of the socio-economic and psychological forces, including tion if they will get good education for Fromm's notion of reactive, revengeful and compensatory violence, as a their children. A recent Gallup poll part of Black violence see, Tollett, "Negro Vertical Mobility," Chicago Daily Law Bulletin, April 26, 1968. at 28. reports that 80 percent of Black people 92. R. Wilkins. A Black Separatist Assist: Gary, theSchoolbus and Mr. interviewed subscribe to the sense of At- Nixon, The Washington Post. March 21, 1972, at A8. 93 93 Id Of course the busing issue is a complex one thatraises many subtle torney Cooper's amendment. and difficult arguments pro and con which cannot be aired here. The However, Congress and President writer wishes to acknowledge more of these, but stresses that a capi- tulation to anti-busing forces at this time would predictably result in an Nixon unquestionably are allied against obsequious position one cannot but recognize as playing directly into the implementation of the School the hands of the proponents of racism. PAGE 19 THE BLACK LAW JOURNAL cruel regime. Complementing and to a but resourceful non-white race far, far certain extent reinforcing this wish of away. The country was told that this was Americans to think the American Gov- done so that it would not be reduced to a ernment decent is the underlying rac- "helpless pitiful giant," so that it could ism of the society which devalues the make peace without staining the honor of life, property, and. aspirations of non- the country. The government only has Caucasian peoples. constructed 40,000 nuclear bombs capa- Between 1965 and 1971 the American ble of killing every woman, man and government was responsible for raining child in the world over three times. 26 billion pounds of explosives on In- Everyday the government continued the dochina. Twenty-one billion pounds of massive bombing it stained the earth and these were exploded in South Vietnam - countryside of Indochina with the blood 497 pounds per acre of the country, 1.215 of Indochinese People. pounds for every inhabitant, displacing Class considerations are the main basis 2.75 million acres of countryside.94 for the belief of some that antibusing is Some may protest that the United not entirely motivated by racism. States bombed Germany remorselessly Although one is constrained to concede also. That is true, but the explosives that class is a factor in the resistance to rained down upon Indochina by 1971 busing, one can emphatically reject the were three times the total explosives notion that it is the major factor in an- dropped in all theaters of the Second tibusing sentiments. World War. Furthermore, atomic bombs The class-based argument runs were first dropped on non-whites, the somewhat as follows: Socioeconomic Japanese, at Nagasaki and Hiroshima. discrimination and prejudice in the Was that just a matter of technologi- United States are as pervasive as race cal timing and breakthrough? Maybe! discrimination and prejudice. Indeed, the However, there were thousands of Jap- government practically has eliminated anese citizens who were herded from the more virulent and open forms of race their homes on the West Coast and put prejudice such as lynchings, Jim Crow into concentration camps because of es- Laws, and disfranchisement. However, pionage fears. Many more Germans class distinctions and discrimination turned out to be saboteurs and axis based upon socioeconomic status will agents than Japanese, but they were not very much plague the socio-political camps, not order. The emigration of the upper and herded into concentration95 even German aliens. middle classes from the city to suburbia is Again it may be protested that times escalating a separation of classes as changed. Surely one would not be ominous as the separation of Blacks and have 96 counseled to ignore history, for have not whites spoken of in the Kerner Report. young people been told over and over in The inner city is a disaster area for hous- recent years that they are too impatient ing; public services (police, fire, garbage, and non-historicalin their outlook. Some but looking 94. Anthony Lewis. "Search Their Earth," The New York Times, May S, progress has been made, 1972, at 35. back at history also tells one something 95. See Korematsu v. United States 323 U.S. 214 (1944) (Japanese Con- and actions of centration Camp Case). about the past character 96. The Kerner Report indicated the United States for its pervasive racism. white America which shed much light on When the report was issued he was chairman of President Johnson's point made Commission on Civil Disorders. On Wednesday, January 3. 1973 he what is happening today. The went on trial for bribery. conspiracy, income tax evasion, mail fraud and is related primarily to the antihumanistic perjury. As United States Appeals Court Judge. Kerner was one of the enabled it to highest ranking judges to be indicted and tried. Several weeks later he racism of this country which was found guilty on all counts. Is it just happenstance that one of the almost casually rain thousands of tons of most searing indictments of the United States' racism is identified with destruction upon a comparatively poor his name? See, Verdict on a Judge. Time. March 5, 1973,at 16. PAGE 20 THE BLACK LA W JO URNA L PAGE 20 THE BLACK LAW JOURNAL health, and sanitation services); and race prejudice. -° After all, the species basic consumer goods such as food and Homo Sapiens is defined by its in- clothing - except in high-rise garden telligence, even though a clear and apartment enclaves and downtown universally accepted definition of in- business districts where, of course, telligence has not been rendered. If Jen- affluent whites predominate. "Limousine sen, Herrnstein, et al, can prove Blacks liberals" preach mixing the races in free are generally on the average less in- public schools while sending their telligent than whites, then many inevita- children to expensive private schools. bly will infer that Blacks also must be less The affluent, both Black and white, do human than others. Conventional wis- not want their children to associate in dom, worldwide, at the enunciation of school with. large numbers of poor the separate-but-equal doctrine in Plessy children, either Black or white. v. Ferguson' was that non-whites were Therefore, for example, the School inferior to whites and deserved to be Board of Duluth, Minnesota, where the subordinated and colonized. non-white population is only two or three Moreover, if socio-cultural or family percent of the over-all population, voted background is the most important factor in the Spring of 1972 to reject a plan for in educational achievement, then there is the socioeconomic integration of its no reason, it may be inferred, for trying school system which would have resulted to equalize educational inputs or expen- in no public school having more than ditures for Blacks and other un- thirty percent of its enrollment from derclasses.'° 2 Furthermore, if integration 97 low-income families. Furthermore, conservative chic, an 97. D. Hubert. Class... and the Classroom: The Duluth Experience, Satur- expression of certain converging forces at day Review, May 27, 1972, at 55; Duluth, Saturday Review, June 24, large, in operation and effect if not in 1972 at 49. 98. Herrnstein, I.Q., The Atlantic Monthly, September, 1971, at 43. purpose and intention, tend to define and 99. But cf Does LQ. Matter? Commentary. April 1972. at 51. test Blacks outside the kin of humankind 100. Antihumanism is not peculiar to the United States, although the expression of it in the form of "benign neglect" may be such in com- or to declare and argue the futility of parison with other modem Western democracies. Many Blacks in two educational remedies such as the ways have aspired to be like the class which does much to oppress them. First, they have internalized class-racist arrogance, which equalization of "inputs" (facilities, manifests itself in self-hatred and Black bourgeoism. Second, they have teachers, and curriculum) and busing. stylized a rampant materialism which manifests itself sometimes in an almost manic conspicuous consumption. Blacks want to get into the Here reference is being made to the mainstream of America, but mostly upper-middle class white people resurgent interest and concern in the in- and values circulate there. However, the values of an authentic humanism transcend race and class, focusing upon social and job telligence of Blacks, the social-class security, a minimum standard of living, individual integrity, ordered explanation of educational achievement liberty, and vibrantly human expressivity and opportunity. 101. 163 U.S. 537 (1896). C. Vann Woodward has described the first half- and the claimed counter-productivity of century of the Blacks' freedom in America as dominated by racism, integration effectuated by busing. It is particularly in American social theory. And "... after Darwin the vulgar dogma of race superiority found a reputable rationale." He not necessary to review the many articles continued: appearing in journals ranging from "Genetic symbols rapidly took priority over all others in social thought. This meant that the high incidence of poverty, illiteracy, Professor Arthur Jensen's in the Harvard disease and crime among Negroes was attributed to race and held Educational Review, Winter, 1969 to :oscgerstal and sasaterable. "This fashion of thought infected virtually all levels and classes of Professor Richard Herrnstein's in the white society.... Atlantic Monthly.98 However, it should be "In the post-Reconstruction era the liberals, reformers, mugwumps and intellectuals who might have been expected to carry on the noted that Professor Herrnstein claims a defense of principles after politicians had abandoned them were significant correlation between I.Q. and swept along in the current of racist thought." 99 Woodward. Flightfrom History: The Heritage of the Negro, The Na- success. If this so-called correlation is tion 100th Anniversary Issue, September 20, 1965, at 142, 143, 144. 102. See, Coleman, Equality of Educational Opportunity (1966); Bane and taken seriously, it is most likely that it will Jencks, The Schools and Equal Opportunity, October 1972 Saturday reinforce the anti-humanism of class and Review of Education, September 16, 1972, at 37. THE BLACK LAW JO URNA L PAGE 21 THE BLACK LAW JOURNAL PAGE 21 effected by busing not only does not denial of a generally higher standard of conclusively evidence improvement in living and social justice 7 for lower and race relations or in Black academic per- lower-middle class whites. formance, aspirations and self-concept Since a disproportionately large but also has a counterproductive effect number of Blacks constitute the lower upon the realization of these integration classes, the social class explanation of goals, then it may be inferred that in- educational performance reinforces the 0 3 tegration is undesirable as well as futile.' inference of Blacks' subhumanity and at The short answer to Jensen and the same time justifies a failure or refusal Herrnstein is that the dominat class will to provide Blacks equal educational in- inevitably define the elements of in- puts or expenditure per pupil. However, telligence in terms of their own if the socio-cultural explanation were developed skills and attributes and of really taken seriously, then one would their own concepts of the good, the true, think that upper and middleclass schools and the beautiful. Even the kindred cul- should receive the least inputs and ture of England is apparently disadvan- educational expenditures. Furthermore, taged by American produced tests."' this explanation compounds the be- Furthermore, one can hardly read littlement of Black students' in- modern anthropological and linguistic telligence by wholesalely demeaning analyses and still seriously entertain in- their families and their socio-cultural viduous judgments regarding the innate environments. Coincidentally or con- intelligence of any peoples. s° However, veniently, the social-class explanation the main point stressed here is not seems to excuse antihumanistic racism. primarily concerned with the polemics Since busing is widespread and mas- and technicalities of the nature-nur- sive, apart from busing to effect school turance controversy. integration,' the claim that it is futile or The point made regarding the counterproductive when used to effect lucubrations about the I.Q. of Blacks is integration leads almost inescapably to that they express the dominant belief of the conclusion that integration itself is whites and the dormant fear of Blacks futile and counterproductive. The next that in some way significantly related to link in the chain of inferences is that the Blacks' humanity Blacks are biologically School Desegregation Case is under- different from whites. The effect and mined and then most, if not all, of the operation of the inquiry lead to ra- civil rights gains of Blacks in the late tionalizations and justifications for the 1950's, the 1960's and the early 1970's are mistreatment or "benign neglect1 6 of 103. See, Armor, The Evidence on Busing, The Public Interest, Summer Blacks and other non-white underclasses. 1972, at 90. If integration is now to be regarded as undesirable and A pernicious fall-out of this effort is that futile then the Brown case and its progeny which branch into many areas must also be regarded as undesirable and futile. similar rationalizations and justifications 104. See, P. Watson, Toward a New Guage of Intelligence, Intellectual for the mistreatment and "benign Digest. July 1972.at 38. For a superlative answer to the lHerrnstein article on its own ground see Deutsch and Edsall, The Meritocracy neglect" of poor whites also follow. Scare, Society, September/October 1972, at 71. However, white underclasses will be 105. C. Levi-Strauss. The Savage Mind (1966); W. Labov, Academic Ig- norance andBlack Intelligence, The Atlantic Monthly, June 1972,at 59. handed Blacks as scapegoats. Thus, just 106. See,R. Heilbroner, Benign Neglect in the United States, Trans-Action, as in the past the South gave poor whites October 1970, at 15. 107. See, R. Coles, Understanding White Racists, The New York Review of racial bigotry and mindless demagoguery Books, December 30, 1971 at 12. Seealso W. Raspberry, A Strategyfor instead of educational, economic and Scaegoat-Making: Offering the Poor and the Blacks as a Focus for Middle Class Frsutrations, The Washington Post, February 26, 1973,at social opportunity; today white un- A 19. derclasses will be given the so-called low 108. Tollett, Blacks, Higher Education and Integration, 48 Notre Dame Lawyer 189, 194(1972); It's Not the Distance "It's the Niggers". Com- scores and the so-called preferential ments on the Controversy Over School Busing, NAACP Legal Defense treatment of black scapegoats for the and Educational Fund, Inc. (May 1972). PAGE 22 THE BLACK LAW JOURNAL undermined.' 9 Thus, there is more than implementation of a state statute paranoia in the thought that the above authorizing the creation of a new school three forces or phenomena are converg- district out of a city that at the time of the ing into a reinforcement of a trend statute's enactment was in the process of toward a second post-Reconstruction dismantling a dual school system. or disengagement from pursuing free- However, in a companion case to dom, equality, and justice for Black Scotland Neck the Court last term for the Americans."' first time was not unanimous in its dis- position of a case implementing the 2. CLASSISM AND THE DIMUNITION OF School Desegregationdecision. In Wright 6 THE CONTENT AND WORTH OF v. Emporia. the Court in a 5-4 decision AMERICAN CITIZENSHIP with all of Nixon's appointees dissenting upheld a federal district court injunction a. EQUALITY AND THE LAW against state and local officials carving a new school district from an existing dis- (1) Racial Segregation-The 1971 trict which was in the process of dis- Term witnessed the first non-unanimous mantling a system of state enforced racial Supreme Court decision in the school segregation. The officials claimed their desegregation area."' Nixon appointees carving was motivated by quality educa- played a significant part in that lack of tion. The Court decided that "the exis- unanimity. Yet early in Burger's first tence of a permissible purpose cannot term (1969) and then again in 1970, there sustain an impermissible effect.""' 7 The were auspicious signs that at least in the effect of the carving was to divide a uni- area of racial segregation, particularly tary system with Black and white schools concerning education, the liberal- into two new systems, one Black and one progressive course of the Warren Court white. would not be altered. Furthermore, it must be observed that In Alexander v. Holmes,"2 decided on even before Powell and Rehnquistjoined October 29, 1969 after hearing arguments the Court, in Palmer v. Thompson"8 it on October 23, the Court held that the refused to follow the logic and spirit of "continued operation of segregated Griffin v. County School Board,"9 which schools under a standard of allowing 'all held Prince Edward County could not deliberate speed' for desegregation is no avoid school desegregation by closing its longer constitutionally permissible." 3 public schools, by upholding the decision The Court emphatically ordered the ter- mination of dual school systems and the 109. See,e-g. Tollett supra note2 atn- 61 and accompanying text.Also consider the negative impact of undermining Brown or Gideon v. operation of unitary school systems im- Wainwright, Baker v. Carr, and their progeny. mediately. In Swann v. Charlotte- 110. "'The tide of reaction thatis sweeping across America is more than a 4 Republican effort tocancel out theremnants of Johnsonian egali- Mecklenburg Board of Education," the tarianism...." Court held that "local school authorities "...Policies of hope have been replaced by policies of suspicion, which appear totake itfor granted thatsociety will be improved not ... be required to employ bus transpor- by the promise of reform butby the threat of punishment...." tation as one tool of school desegrega- "...A coalition of fear and reaction in state legislatures and in Congress is blithely being incited by the Nixon Administration to tion." The Court made crystal clear that outflank the court with reactionary new laws." the implementation of the School The Tide of Reaction, N.Y. Times, January 15,1973, at 28. 111.See, Wright c. Emporia, note 116 infra. Desegregation Case might necessitate 112. 396 U.S. 19 (1969). busing. Thus the Court has not aban- 113. 396 U.S. at 20. 114. 402 U.S. 1(1971). doned the School Desegregation Case - 115. 407 U.S. 484 (1972). yet. In U.S. v. Scotland Neck Board of 116. 407 U.S. 451 (1972). 117. 407 U.S. at 462 (1972) (Emphasis added). Education,"' the Court upheld a federal 118. 403 U.S. 217 (1971). district court injunction against the 119. Tollett, supra note 2 at 206, n. 59 and accompanying text. THE BLA CK LA W JOURNAL PAGE 23 THE BLACK LAW JOURNAL PAGE 23 of the City Council of Jackson, Missis- classifications" or those touching "fun- sippi to surrender the lease on one and to damental rights," nevertheless it is still close four other swimming pools owned expressing special concern about invid- by it rather than desegregate them. Jus- ious classifications, that is, the Court is tices White, Brennan, Marshall and showing some solicitude, for what has Douglas dissented. Justice White rejected heretofore been referred to as the the majority's conclusion that because nouveau malheureux. the pools could not be operated safely Unmarried fathers of children after the and economically on an integrated ba- death of the mother may not have their sis, it was proper to close them. In an children taken away from them without a argument echoing a variation of the hearing on parental fitness. Illinois ac- "chilling effect" principle of Dom- corded mothers and married fathers such browsk, Justice White said, "It is ev- a hearing but not unmarried fathers. The ident that closing a public facility after Court held such was a denial of equal a court has ordered its desegregation has protection in Stanley v. Illinois.' For the an unfortunate impact on the minority first time the Court last term held an act considering initiation of further suits or unconstitutional because of sexual filing complaints with the Attorney discrimination. An Idaho statute gave General."'" preference to men over women if both (2) Other Invidious Classifications were equally qualified to serve as ad- ministrator of an estate. Although the as a suspect clas- "The black struggle," said Friedenberg, Court did not treat sex "is no longer a significant issue for us in this sification, the seven-man decision nation.".... The civil rights struggle of the unanimously sustained the claim that the 1960s, in Friedenberg's opinion, "was a statute violated the Equal Protection legitimate matter in its own time .... It is, in clause. The Court could not see the this, a little like the moment of an infant's competing parturition. It happens once. You deal with difference in sex between it once. Then you go on to something new." applicants for letters of administration as The position he takes, however, is neither bearing a rational relationship to a state an unfamiliar nor unprecedented manner of objective sought to be advanced by the response to concrete issues. It is, on the statute. The objective of eliminating a contrary, a familiar instance of the ritual exercise of liberal surrender followed by a hearing on the merits of who should ad- nonstop forward locomotion to the next good minister an estate may not be ac- 23 issue and to the next preflawed endeavor. The complished solely on the basis of sex.' process starts during the public school and The Court's concern for illegitimates carries through into almost every area of our manifests drift which is disturbingly adult lives. 2 KoZOL 1 replicated in other areas of humanistic -JONATHAN concern. In Labine v. Vincent'24 the Court Classifications based upon race are sustained a Louisiana intestate succes- "suspect" and are thus subjected to "cri- sion law which denied a claim of the duly tical scrutiny," indeed, they are only acknowledged illegitimate natural upheld or enforced when they promote a compelling state interest. Although the 120. 403 U.S. at 269 (1971) Seealso, Evans v.Abney, 396 U.S.435 (1970) p. background and contextual analysis 50-51 infra. Since this case isa sequel to Evans v. Newton, 382 U.S.296 (1966) which was discussed under"The Concept of State Action,."its above were intended to suggest that the discussion will be deferred to the state action subsection. future security of Blacks against 121. Kozol, Moving On - To Nowhere, January 1973 Saturday Review of Education, December 9, 1972, at 6. (Emphasis added) discrimination is uncertain, the Court is 122. 405 U.S. 645 (1972). not necessarily abandoning its concern 123. Reedy. Reed 404 U.S. 71 (1971) But see,Forbush v.Wallace, 405 U.S. 970 (1972) (unanimously affirming Alabama regulation that married for groups subjected to invidious clas- woman seeking driver's license must use her husband's surname). sifications. It may not expand "suspect 124. 401 U.S. 532 (1971). PAGE 24 THE BLACK LA W JO URNA L PAGE 24 THE BLACK LAW JOURNAL children of a father as being equal to opinion in part based upon equal pro- inheritance rights of legitimates. The tection. Justice Harlan did not concur in Court saw no invidious discrimination the Equal Protection Clause part of Jus- against illegitimate children. Indeed, tice Blackmun's opinion. The point of the Justice Black wrote for the majority that reference to the housing and alienage Levy v. Louisiana125 "did not say ,nd cases is not that it is bad for alienage to be cannot fairly be read to say that a State treated as a suspect classification but to can never treat an illegitimate child indicate such expansion of suspect clas- differently from a legitimate offspring. 126 sifications will hardly benefit Blacks Justices Brennan, Douglas, White, and whereas treating housing as a necessity Marshall dissented. However, in Weber v. which touches and concerns fundamen- Aetna Casualty & Surety Co.27 the Court tal rights would have been beneficial to held a law which placed dependent Blacks since they in large numbers suf- unacknowledged illegitimate children on fer adversely from landlord eviction an unequal footing with legitimate procedures. The Nixon-Burger Court's children in recovering workmen's com- treatment of poverty and welfare pensation upon the death of their natural recipients has been uneven and on the father a denial of equal recover rights. whole unfavorable to Black and un- With only Justice Rehnquist dissenting, derclass interests. Justice Powell inquired into what legi- timate state interest did the classification (3) Poverty and Welfare- promote, what fundamental personal "[It has been estimated that the] sheer fact rights did the classification endanger. He of being black explains 38 percent of the said, "The status of illegitimacy has differences in the incidence of poverty for expressed through the ages society's con- whites and Negroes." demnation of irresponsible liaisons -ROBERT COOTER JERRY GREEN 32 beyond the bonds of marriage. But visit- JANET YELLEN' ing this condemnation on the head of an infant is illogical and unjust."' 8 He could Since it was earlier written that "egali- see no relationship between the inferior tarian humanism more than anything Court"' 33 status of illegitimates and the commen- else characterized the Warren dable purposes served by the workmen's and that this characteristic manifested it- compensation statute. self in cases involving the poor, the Interestingly enough although the Nixon-Burger Court's treatment of poor Court has not expanded the category of people and welfare recipients should give necessities which require strict scrutiny,'29 a good indication of how it stands on this the Court did hold in Graham v. fundamental characteristic of the Warren Richardson30 that "classifications based Court. Its record regarding the poor as on alienage, like those based on na- such in the criminal process is good tionality or race, are inherently suspect although its record on the criminal 31 and subject to close judicial scrutiny.' Thus the Court struck down an Arizona 125. 391 U.S. 68 (1964). 126. Labine a. Vincent, 401 U.S. at 536 (1971). law limiting welfare assistance benefits to 127. 406 U.S. 164(1972). American citizens or aliens who had 128. 406 U.S. at 175. 129. Lindsey v.Nonnet, 405 U.S. 56 (1972) (holding that housing did not resided in the United States for a total of involve a fundamental right such that Forcible Entry and Wrongful fifteen years and a Pennsylvania law Detainer Statutes required strict scrutiny); seealso discussionof wel- farecases under "Poverty" p. 24. infra. limiting state-funded benefits to "needy 130. 403 U.S. 365 (1971). persons who are citizens of the United 131. 403 U.S.at 372. 132. Commentary. February 1973, at 18 in letters to editors from members States." The Court unanimously struck of Department of Economics at Harvard University. the laws down with Justice Blackmun's 133. Tollett, supra note 2 at 206. THE BLACK LAW JOURNAL PAGE 25 process generally is uneven and on the fare agency wanted but demanded the whole discouraging."' It has not main- privacy and security of her home. tained the Harper-Shapiro'35 thrust of However, the more significant and classifications based upon wealth ominous case concerning welfare rights treating ° as suspect and the provision of necessities was Dandridge v. Williams. ' There the as touching "fundamental" rights, either Nixon-Burger Court reversed a three- of which requires promotion of com- judge District Court decision that pelling state interest and close scrutiny to Maryland's maximum grant regulation past constitutional muster. violated the Equal Protection Clause in The Harper-Shapiromomentum at first that it overreached by cutting too broad a seemed to have been maintained in Gold- swath on an indiscriminate basis in its berg v. Kelly,'36 which held it was a denial application to an entire group of AFDC of due process to terminate welfare eligibles. The regulation recognized that benefits without an evidentiary hearing needs increased with the size of family in advance. Although the decision was but increments were proportionately based upon due process rather than smaller for each additional dependent. equal protection, it did associate or The upper limit was $250.00 in certain seemingly equate welfare benefits with counties and Baltimore City and $240.00 life, liberty and property. However, not per month elsewhere in Maryland. too long into the next term (1970) the Maryland argued the maximum limita- Nixon-Burger Court indicated the direc- tion served four legitimate state interests: tion in which it was moving concerning (1) to encourage gainful employment; (2) the treatment of welfare recipients in to maintain an equitable balance Wyman v. James.'37 The case raised the between welfare families and those sup- question whether a beneficiary of the ported by wage earners; (3) to provide program for Aid to Families with incentive for family planning, and (4) to Dependent Children (AFDC) could allocate available public funds so as to refuse a home visit by a caseworker meet the needs of the largest possible without risking the termination of the number of families. Justice Stewart in his benefits. The Warren Court had held in opinion for the majority said: Camara v. Municipal Court3' and See v. In the area of economics and social wel- City of Seattle'"9 that housing and fire fare, a State does not violate the Equal Pro- could be denied entry into tection Clause merely because the clas- inspectors sifications made by its laws are imperfect. If private dwelling and commercial build- the classification has some reasonable basis, ing in the absence of warrant without the "it does not offend the Constitution simply occupants being subject to prosecution. because the classification is not made with The Nixon-Burger Court did not see loss mathematical nicety or because in practice of benefits as equivalent to prosecution it results in some inequality." for failure to permit entry of inspector It is enough that a solid foundation for the without warrant. Justice Blackmun in regulation can be found in the state's legi- effect ruled that the visitation did not in- timate interest in encouraging employment volve a search, if it did it was not un- and in avoiding discrimination between reasonable, and even if unreasonable welfare families and the families of the working poor."' a welfare recipient waived her Fourth

Amendment rights by accepting benefits. 134. Seediscussion of"Rights of the Accused" infra p. 34. The state claimed the visitations were to 135. See Tollett, supranote 2 at207, n. 67-69 and accompanying text. 136. 397 U.S. 254 (1970). protect dependent children, determine 137. 400 U.S. 309 (1971). eligibility, and to rehabilitate or provide 138. 387 U.S. 523 (1967). 139. 387 U.S. 541 (1967). aid for family. The mother was willing to 140. 397 U.S. 471 (1970). provide whatever information the wel- 141. 397 U.S. at 485. PAGE 26 THE BLACK LAW JO URNA L PAGE 26 THE BLACK LAW JOURNAL Justice Stewart conceded some AFDC Texas scheme which allocated welfare families have no employable members, fund as percentage of need, granting 75 but he insisted that "Equal Protection percent to AFDC, 100 percent to the does not require State . . . [to attack] aged and 95 percent to the disabled and every aspect of a problem or not [attack] the blind (Justice Douglas observing in 412 ' the problem at all. " dissent that 87 percent of those receiving Justice Douglas dissented on the AFDC aid are Blacks or Chicanos);'47 ground that the Maryland regulation was and a state bail reform law which inconsistent with Social Security Act. Mr. withheld 1 percent of total bail set as bail Justice Marshall filed a vigorous dissent bond cost where party was released by in which Justice Brennan joined. Justice depositing 10 percent of the amount of Marshall said, "The Court recognizes, as bail set, but did not require a clerk to retain it must, that this case involves 'the most such bail cost in case of personal recog- basic economic needs of impoverished nizance or deposit of security for full 4 human beings ..."I" Assistance to amount of the bail set. children is granted and denied merely on Although the Court during the 1971 the basis of the size of families. He in- Term decided a number of cases favora- sisted that this "is grossly underinclusive ble to equal protection claims, this sec- in terms of the class which the AFDC tion will conclude with reference to two program was designed, to assist, namely cases, one favorable to equal protection all needy dependent children.""' This claim of the poor and one unfavorable, compels state to come forward with per- both being decided the 1970 Term. suasive justification for the classification. Boddie v. Connecticut4 held it was a Justice Marshall said the Court avoid- denial of due process to deny welfare ed this issue by abstractly discussing recipients access to divorce proceedings different approaches to equal protection simply because of their inability to pay problems: traditional or minimal test and court fees and costs. Justice Harlan wrote classification affecting fundamental right the majority opinion. Justices Douglas test which requires compelling state and Brennan concurred in decision on interest to sustain it. Justice Marshall equal protection grounds. Only Justice thought it was immaterial which test was Black dissented. Finally, James v. Val- applied, for either should result in tierra15" upheld a California constitutional striking law down. Justice Marshall dis- provision which mandated referendum posed of each of the four state interests approval before the establishment of proffered as justification, saying: low-rent housing in a community.'' Val-

In the final analysis, [one] need not 142. 397 U.S. at 486. speculate too far on the actual reason for the 143. 397 U.S. at 508. regulation, for in the early stages of this 144. 397 U.S. at 519. 145. 397 U.S. at 528. Justice Marshall insisted that even gratuitous benefits litigation the State virtually conceded that it of the state required strict constitutional standards for witholding them set out to limit the total cost of the program when they were necessary to stustain life. Discrimination against 5 along the path of least resistance.' children on the basis of their number is a factor beyond their control like illegitimacy. Saving welfare costs cannot justify invidious discriminations. Political expeditcy - maintaining particular income Following the traditional or minimal levels between working and non-sorking famlies - wil not sustain a rationalitytest, the Court during the 1971 discrimination which is otherwise insupportable. The main purpose of the program is to benefit children, furthermore only a very small Term perfunctorily and deferentially percentage of recipients are employable, making the regulation sustained a Social Security Act provision overinclusive as to the unemployable. 146. Richardson s. Belcher, 404 U.S. 78 (1971). which required reduction in disability 147. Jefferson v. Hackney, 406 U.S. 535 (1972). benefits when workmen's compensation 148. Schilb v. Koebel, 404 U.S. 357 (1971). See also Lindsey v. Normet, supra note 129. is received but reduction not required 149. 401 U.S. 371 (1971). when other benefits were received from 150.402 U.S. 137 (1971). ' 151. But see, Hunter v. Erickson, 393 U.S. 385 (1969) discussed in Tollett, private insurance or tort damages; 46 a supra note 2 at 206 n. 64a and accompanying text. THE BLACK LAW JO URNA L PAG E 27 THE BLACK LAW JOURNAL PAGE 27 tierranaturally leads to the last sub-topic pects. He wrote: under Equality and the Law, although It is said that if we prevent racial other decisions concerned with egali- gerrymandering today, we must prevent tarian humanism will be discussed later. gerrymandering of any special interest group tomorrow, whether it be social, (4) The Franchise and Apportion- economic, or ideological. I do not agree. ment- The Nixon-Burger Court con- Our Constitution has a special thrust when it tinued the practice of strictly scrutinizing comes to voting; the Fifteenth Amendment. legislation or regulations affecting voting ... It is asking the impossible for us to demand that blacks first show that the effect and the electoral process. Thus in Bullock the scheme was to discourage or prevent 52 of v. Carter' the Court upheld a three-judge poor blacks from voting or joining such federal court decision that high primary party as they chose. On this record, the vot- election filing fees were unconstitutional ing rights of the blacks have been "abridged," as I read 6 in that they conditioned the opportunity the Constitution.' to run in an election on the ability to pay There seems to be a clear indication a filing fee. In Dunn v. Blumstein'53 the that the Nixon-Burger Court is going to Court held unconstitutional a Tennessee restrict, erode, and undermine the Reap- statute which required residence in the portionment Cases decided during the state for one year and in the county for Warren era. three months as a prerequisite for regis- tration to vote. However, Whitcomb v. Chavis'54 reversed and remanded a b. DILUTION OF THE STATE ACTION three-judge district judgment that state CONCEPT senatorial and house of representative But, I am aware that composition of this Court has radically changed in four years. elections in multi-member districts 57 inherently discriminated against other -JUSTICE THURGOOD MARSHALL' districts. The district court had found that Central to the enforcement of equality Marion County's multi-member district under the law and of civil rights generally worked invidiously against a ghetto is the concept of state action. Judicial community predominantly inhabited by enforcement of the Fourteenth and Fif- poor Blacks. The Court found major teenth Amendments and its treatment of deficiencies in this trial court finding congressional enforcement of civil rights because there was "no suggestion ...that largely turn upon whether state action is Marion County's multi-member district, involved.'58 So long as state involvement or similar districts throughout the State, or action is essential in most cases were conceived or operated as purposeful designed to enforce equal protection and devices to further racial or economic other civil rights, Blacks and other un- discrimination."'55 The Court maintained derclasses should be peculiarly watchful that no group with distinctive interests of how the Supreme Court deals with the must be represented in the legislative concept of state action. Two of the most halls merely because it is numerous disturbing decisions of the Nixon-Burger enough to command such representation Court during the 1971 Term diluted or if a sufficiently compact single-member constricted the concept of state action. district was drawn where it resides. The implications of this decision are 152.405 U.S. 124(1972). 153.405 U.S.330(1972). far-reaching for those Blacks who cry for 154. 403 U.S. 124(1971). community control. Justices Douglas, 155. 403 U.S. at 149. 156. 403 U.S. at 180. Brennan, and Marshal dissented. justice 157. Lloyd Corp. v. Tanner, 407 U.S. 570 (1972) (dissenting) (Emphasis Douglas emphasized Fifteenth Amend- added) 158. Seediscussion, "The Concept of State Action" and "Court Treatment ment aspects of case rather that Equal of Congressional Enforcement of Civil Rights" Tollett, supra note 2 at Protection Fourteenth Amendment as- 209-215. PAGE 28 THE BLACK LA W JOURNAL PAGE 28 THE BLACK LAW JOLIRNAL However, even before last term the guished Tanner from Logan Valley'66 Court indicated that it was "half-step- insisting that the latter case turned on the ping" on state action when it did not fact that the picketing was directly relat- follow the logic and implication of its ed in its purpose to the use to which the intwinement and public domain theories shopping center property was being put of state action enunciated in Evans v. and that "the store was located in the Newton."19 In Evans the Court held in center of a large private enclave with the 1966 that the taint of state action was still consequence that no reasonable oppor- present in the operation of a park which a tunities for the pickets to convey their city turned over to a private trustee message to the intended audience were 6 because the will of Senator Bacon available."' ' The Lloyd Center was a 50 required the park to be used by whites acre shopping center comprising more only. However, after remanding the case than 60 commercial tenants. Although no the Court on further appeal held in Evans public streets crossed the Mall of the v. Abney" that it was not improper for Center, some of the stores ringing the Georgia courts to allow the property to Mall could be entered from public revert to the testator's heirs because that streets. Thus the Court argued: trust failed due to Georgia not applying It would be an unwarranted infringement the doctrine of cy pres.16' Of course, this of property rights (emphasis added) to meant Blacks were denied access to the require [the Lloyd Center] to yield to the exercise of First Amendment rights under park. Justice Brennan in his dissent, circumstances where adequate alternative however, found prohibited state action avenues of communication exist. .. [I]t on three separate grounds: (1) The city's must be remembered that the First and acceptance of the park land and atten- Fourteenth Amendments safeguard the dant obligation to operate it on a rights of free speech and assembly by limi- tations on state action, not on action by the segregated basis was an attempt to create owner of private property used non- in the heirs of Senator Bacon a private discriminatorily for private purposes only. right to compel a reversion if the park became integrated. (2) White users of the Even where public property is involved, were willing to share their use of the the Court has recognized that it is not park necessarily available for speech, pickets or of park with Blacks, thus on analogy other communicative activities... 168 Shelly v. Kraemer62 the cy pres doctrine should have been applied. (3) Senator Mr. Justice Marshall, with whom Jus- Bacon's devise of the park on a racially tices Douglas, Brennan and Stewart segregated basis had been encouraged by joined, vigorously dissented. He noted Georgia statute authorizing racially res- that the District Court below had found trictive gifts. Justice Brennan's dissent was correct but it should have been based 159. See Tollett, supra note 2 at n. 92 and accompanying text. 160. 396 U.S. 435 (1970). upon a "more fundamental ground." 161. The cy pres doctrine permits a gift with a charitable purpose which More than 100 years after the abolition of cannot be carriedout as directed by the donor to be applied as nearly as possible to the fulfillment of the underlying charitable intent. slavery the American legal system should 162. 334 U.S. 1 (1948) (holding that a racially restrictive covenant isunen- cease its partnership role in the institu- forcible because its enforcement would constitute a violation of the racial prejudice. 63 Equal Protection Clause of the Fourteenth Amendment.) tionalization of private 163. G. Buchanan, Federal Regulation of PrivateRacial Prejudice: A Study In Lloyd Corp. v. Tanner 6" the Court of Law in Search of Morality, 56 Iowa L. Rev. 473, 524 (1971). 164. 407 U.S. 551 (1972). held (5-4) that a privately owned shop- 165. But see, Amalgamated Food Employees Union v.Logan Valley Plaza, ping center could prohibit the distribu- 391 U.S. 308 (1968) (holding that a shopping center was the functional equivalent of a public business district and thus peaceful union tion of handbills, protesting the draft and picketers could exercise First Amendment rights secured against the Vietnam war, on its property when they states by the Fourteenth Amendment). 166. Id were unrelated to the shopping center's 167. 407 U.S. at 563. operations. 65 Justice Powell distin- 168. 407 U.S. at 567, 568. THE BLACK LA W JO URNA L PAGE 29 THE BLACK LAW JOURNAL PAGE 29 that "'the Mall is the functional e- racial discrimination in the view of the quivalent of a public business district majority. within the meaning of Marsh and Logan However, near the end of his opinion Valley.' The Court of Appeals specifically Justice Rehnquist impishly gave the affirmed this finding, and it is overwhel- Black guest who was denied service some mingly supported by the record."'69 He relief. The Court qualified its approval of found Lloyd Center and Logan Valley the club's booze and bigotry practice in Plaza similar in several respects. Lloyd the following words: Center differed principally in that it was Appellee was entitled to a decree enjoin- larger, contained more commercial ing the enforcement of §113.09 of the facilities, and was much more in- regulations promulgated by the Pennsyl- tertwined with public streets than Logan vania Liquor Control Board insofar as that regulation requires compliance by Moose Valley Plaza. This made it plain to him Lodge with provisions of its constitution that the Lloyd Center was equivalent to a and by-laws containing racially discrimina- public business district. The civil liber- tory provisions. 3 tarian position of the dissenters is in- Justices Douglas, Marshall and Bren- dicated by the following: nan dissented. Justice Douglas thought We must remember that it is a balance the complex quota system for obtaining that we are striking - a balance between the liquor licenses restricted the ability of freedom to speak, a freedom that is given a Blacks to obtain liquor when it allowed preferred place in our hierarchy of values, and the freedom of a private property- private clubs to discriminate against owner to control his property. When the Blacks, thus the state was undergirding competing interests are fairly weighted, the racial discrimination. Justice Brennan balance can only be struck in favor of wrote: speech.' Plainly, the State of Pennsylvania's liquor 7 Moose Lodge v. Irvis ' starkly presents regulations intertwine the State with the the negative impact upon Blacks of a operation of the Lodge bar in a "significant way [lending the State's] authority to the restrictive interpretation of the concept 7 of state action. The Court there held in a sordid business of racial discrimination."' six to three opinion written by Justice Rehnquist that a state's issuance of a C. COURT TREATMENT OF CONGRES- liquor license to a private social club did SIONAL ENFORCEMENT OF CIVIL RIGHTS not make the club's discriminatory guest Where Congress attempts to remedy policy state action. Justice Rehnquist racial discrimination under its enforcement wrote: powers, its authority is enhanced by the avowed intention of the Framers of the The Court has never held, of course, that Thirteenth, Fourteenth, and Fifteenth en- discrimination by an otherwise private Amendments. 17 tity would be violative of the Equal Protec- -JUsTICE HUGO BLACK 5 tion Clause if the private entity receives any sort of benefit or service at all from the The late Justice Holmes once said that State, or if it is subject to state regulation in "a page of history is worth a volume of any degree whatever. ... Our holdings in- logic." Although at the end of the dicate that where the impetus for the Revolutionary War slavery was on the discrimination is private, the State must have "significantly involved itself with in- 169. 407 U.S. at 575. . . . vidious discriminations" in order for the 170. 407 U.S. at 580. Justice Marshall also observed later in his opinion that discriminatory action to fall within the am- it would not be surprising if cities relied more and more on private 72 bit of the constitutional prohibition.' businesses to perform governmental functions. 171. 407 U.S.163 (1972). The pervasive regulation of private clubs 172. 407 U.S. at 173. 173. 407 U.S. at 179. by the Pennsylvania State Liquor Con- 174. 407 U.S. at 186. trol Board did not foster or encourage 175. Oregon v.Mitchell, 400 U.S. 112, 129 (1970). PAGE 30 THE BLACK LA W JO URNA L PAGE 30 THE BLACK LAW JOURNAL way to extinction in the North and on the in Article V that "no amendment which downgrade in much of the South, the may be. made prior to the year One 1787 Constitutional Convention was al- thousand eight hundred and eight shall most wrecked upon its shoals. The Or- in any Manner affect the first and fourth dinance of 1787 prohibited slavery in the Clauses in the Ninth Section of the first Northwest Territory; however, the South Article." Thus without using the words insisted upon a clause in it providing for slave or slavery the original United States the "return to service or labor" of any Constitution racistly protected the person (slave) who had escaped to that abominable institution. region. Just as this was a euphemistic way It is most important to refer to those of dealing with fugitive slaves, the Cons- specific Constitutional provisions which titution itself evasively and euphemis- disingenuously protected slavery, just as tically dealt with the issue of slavery. Ar- most of today's righteous rhetoric about ticle I, Section 2 provided for apportion- law and order, neighborhood schools or ment that "all other", except free per- no-busing, and no quotas is disingenuous sons, excluding Indians not taxed, to be racism. Furthermore, racism in the Unit- counted as three-fifths persons. Article I, ed States is a pure and simple legacy and Section 9 provided that Congress not vestige of a slaveholding society and prohibit "the Migration or Importation mentality. One might argue that since the of such [three fifths] Persons as any of the Constitution was able to cleverly protect States now existing shall think proper to slavery, it should also be able to abolish admit... prior to the Year one thousand slavery and its despicable vestige, racism. eight hundred and eight; but a tax or After the Civil War, Congress pro- duty may be imposed on such Importa- posed and had adopted the Thirteenth, tion, not exceeding ten dollars for each Fourteenth, and Fifteenth Amend- [three-fifths] Person . .. " To prevent ments to the U.S. Constitution, re- Congress from taxing slavery out of exis- spectively, freeing, granting citizenship tence by a head tax, Article I, Section 9 and other privileges and immunities, and provided that "No capitation, or other insuring the franchise of freedmen. The direct Tax shall be laid, unless in Civil Rights Act of 1866, the En- Proportion to the Census or Enumeration forcement Act of 1870, the Ku Klux Klan herein before directed to be taken." Act of 1871, and the Civil Rights Act of Making sure the slaveholding South 1875 attempted to protect and secure the would not possibly be embarrassed by an rights of freedmen to make contracts, to English decision of Lord Mansfield realize the equal benefits of all laws, to holding that a slave acquired permanent enforce the provisions of the Thirteenth, freedom upon setting foot on free soil,'76 Fourteenth and Fifteenth Amendments, the Founding Fathers provided in Article to free them from the fear of night-riders IV, Section 2, that "No person held to and the outrage of mob violence, and to Service or Labor in one State, under the enjoy public conveyances and accom- Laws thereof, escaping into another, modations. The Republican betrayal of shall, in consequence of any Law or Blacks in the Hayes-Tilden deal of 1877 Regulation therein, be discharged from which resulted in the removal of Federal such Service or Labor, but shall be troops from the South and the dis- delivered up on Claim of the Party to ingenuously narrow Supreme Court in- whom such Service or Labor may be terpretations of the post-Civil War due." So solicitious was the Founding Amendments resulted in the practical Fathers' concern for the peculiar institu- reenslavement of freedmen. The attitude tion that they did what some regard as constitutionally impossible by providing 176. Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772). THE BLACK LAW JOURNAL PAGE 31 THE BLACK LAW JOURNAL PAGE 31 underlying the Executive and Judicial discrimination; Griffin v. Breckenridge79 betrayal of Blacks was white supremacy recognized this right of action against and racism. However, Jim Crow and persons conspiring to prevent Negro- other laws of disfranchisement were only Americans through force from seeking completely enthroned in about 1910. equal protection of laws and from enjoy- Thus it took nearly thirty-five years ing the equal rights, privileges and im- completely to undo the positive promises munities of citizens under the laws. The of the Civil Rights Acts and post-Civil Breckenridge action was based upon 42 War Amendments. The antibusing posi- U.S.C. § 1985(3).11° The district court had tion of Congress and President Nixon dismissed the complaint of the terrorized and talk against "quotas" have the smell petitioners who had been mistakenly of the Hayes-Tilden deal, an earlier thought to be workers for Civil Rights for Southern Strategy. Negroes on the ground that Collins v. The Supreme Court's treatment of Hardyman'8' had held that only con- congressional enforcement of civil rights spiracies under color of state law were is important. The Court's record was covered by § 1985(3). The Court after abysmal after the Civil War with a few quoting and relying heavily upon Alfred isolated exceptions until the Warren era. H. Mayer Co. said: Those apprehensive about a second We can only conclude that Congress was post-Reconstruction are especially sensi- wholly within its power under § 2 of the tive to the Southern Strategy and the way Thirteenth Amendment in creating a statu- the Court treats constitutional amend- tory cause of action for Negro citizens who ments and congressional legislation have been the victims of conspiratorial designed to protect the civil rights of private action aimed at depriving them of the basic rights that the law secures to all Blacks and other underclasses. The late 82 free men.' Judge Loren Miller has gone so far as to write: However, in the 1970 Term the Court had held that a complainant could When all was said and done, the Negro had no rights but those which the Court was recover under 42 U.S.C. § 1983183 for willing to grant him. The Court was his deprivation of rights only by proving that guardian, the Negro its unwilling ward. He a defendant discriminated with was not a free man; he was a freedman 77 knowledge and pursuant to custom hav- cadging for judicial favors.' ing the force of law by virtue of persistent How has the Court been treating Blacks 177. Miller, The Petitioners: The Story of the Supreme Court of the United in this area since Chief Justice Burger States and the Negro, at 423 (1966). took over the Court? 178. 392 U.S. 409 (1968); See Tollett. supra note 2, n. 101 and accompany- ing text. The Nixon-Burger Court's record in 179. 403 U.S. 88 (1971). this area, like its record in many others 180. Section 1985(3) in part provides: Deprivingpersonofrights orprivileges. If two or more persons in any especially touching and concerning State or Territory conspire or go in disguise on the highway or on the Blacks, is uneven and not completely as- premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of suring. laws, or of equal privileges and immunities under the laws; or for the Near the end of the 1970 Term the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such Court extended the Warren Court's State or Territory the equal protection of the laws; ... in any case of progressive holding in Jones v. Alfred H. conspiracy set forth in this section, if one or more persons engaged 78 therein do, or cause to be done, any act in furtherance of the object of Mayer Co.' that the Thirteenth Amend- such conspiracy, whereby another is injured in his person or ment empowered Congress to protect property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may Blacks against private discrimination and have an action for the recovery of damages, occasioned by such racial prejudice. Alfred H. Mayer recog- injury or deprivation, against any one or more of the conspirators. 181. 341 U.S.651 (1951). nized the right of Blacks to seek civil 182. 403 U.S. at 105. relief against private individual 183. 42 U.S.C. § 242 - Deprivation of rights under color oflaw. PAGE 32 THE BLACK LAW JO URNAL official practice. The Court declared that bar to federal court action against the "custom" or "usage" in the § 1983 phrase garnishment proceedings. "under color of any statute, ordinance, On December 1, 1970, the Court held 88 regulation, custom, or usage" meant state in Oregon v. Mitchell' that the Voting involvement, not simply a practice which Rights Act Amendments of 197089 con- reflects long standing social habits, stitutionally lowered minimum age of generally observed by the people in a voters from 21 to 18 in federal elections, locality. Obviously, this will make it more but not in state elections, extended difficult to recover civil damages under § prohibition of literacy test both nation- 1983. wide and for five years, and forbade the Yet from a strictly procedural stand- disqualification of voters in national point the Nixon-Burger Court took a elections for presidential and vice- solicitous view regarding the vindication presidential electors on account of state of rights, immunities, and privileges pro- residency requirements. Justices Black, tected by § 1983. In Mitchum v. Foster'84 Douglas, Brennan, White and Marshall last term the Court unanimously held voted to uphold the voting age that an action brought under § 1983 is requirement in federal elections. As to within the expressly authorized excep- state elections involving this age tion of the 1793 anti-injunction statute, requirement Justice Black switched his 28 U.S.C. § 2283. Petitioner had gone vote to the dissenters in the federal elec- into federal court to enjoin Florida from tion holding making a majority against prosecuting Mitchum to close down his its application consisting of Chief Justice book store as a public nuisance. Burger and Justices Black, Harlan, However, the Court stated that when the Stewart and Blackmun. The literacy test district court reconsidered the case on ban was unanimously upheld. Only Jus- remand general principles of equity and tice Harlan voted against the validity of comity, which particularly discourage is- the regulation of the residency limita- suance of injunctions against states, tions. This decision is important because should not be forgotten. All the Court it displays the Court's attitude toward decided was that the court below was in congressional enforcement of civil rights. error in believing that the anti-injunction However, the importance of the statute absolutely withdraws power from decision would be purely academic if it it to enjoin the proceeding pending a depended solely upon whether Congress state court.'85 will attempt to enact or beneficially revise Moreover, as earlier suggested the civil rights legislation touching and con- Nixon-Burger Court has shown definite cerning Blacks. Its critical importance signs of being protective of civil rights and major weakness is that Congress may phrased in terms of property rights or enact anti-Black legislation in the guise interests. Thus in Lynch v. Household of enforcing the Civil War Amendments Finance Corp.'86 the Court held that the - say, a piece of anti-busing legislation. original jurisdiction granted district It may be fortunate that Justice Black courts in 28 U.S.C. § 1343(3) to redress §

1983 deprivations covered infringements 184. 407 U.S. 225 (1972). of property rights as well as personal 185. Seediscussion of "Abstention" p. 14 supra and Tollett, supra note 2 at 202-203. The anti-injunction statute isquoted at page 203. liberty. Thus injunctive relief could be 186. 405 U.S. 538 (1972). sought against summary state garnish- 187. See also, Snaidach v. Family Finance Corp.. 395 U.S. 337 (1969) (hold- ing during Warren Court that Wisconsin statute unconstitutionally ment proceedings against petitioner's authorized the commencement of wage garnishment proceeding funds which took place without notice without notice or hearing), Fuentes v. Shevin, 407 U.S. 67 (1972) 87 (requiring hearing before replevin seizure). and hearing.' The Court also indicated 188. 400 U.S. 112(1970) that the anti-injunction statute was not a 189. 84 Stat. 314. THE BLACK LA W JO URNA L PAGE 33 THE BLACK LAW JOURNAL PAGE 33 based his decision, upholding voting age the following antibusing amendment to regulation in federal elections, upon the the Higher Education Amendments of Times, Places, and Manner Clause of 1972 in the early part of the Ninety- Art. 1, § 4. This does not mean this writer second Congress: disagrees with those dissenters who No court of the United States shall have would have upheld the voting age limi- jurisdiction to make any decision, enter any tation in state elections. However, Art. judgment or issue any order the effect of "The United which would be to require that pupils be IV, § 4, which prescribes, transported to or from school on the basis of States shall guarantee to every State in their race, color, religion, or national this Union a Republican Form of origin. " together with the Neces- Government," The Amendment was narrowly defeated. provided more sary and Proper Clause This is not the place to discuss the issue Congress to leg- than ample basis for raised about this method of assault upon islate regarding the qualifications of enforcing the School Desegregationdeci- voters, including age, in state elections. sion, except to say it is constitutionally Republicanism in this context obviously most questionable. 95 means the representativeness of a state government and surely the qualifications of voters are closely and directly related 190. Thus it is not necessary to insist, as Justice Douglas insisted in his to it."9 This mode of analysis would also dissent from this phase of the case: "If racial discrimination were the only concern of the Equal Protec- sustain the prohibition of English literacy tion Clause, then across-the-board voting regulations set by the requirements which were upheld in Kat- States would be of no concern to Congress." 400 U.S. at 143. 9 But cf Justice Miller's language in the Slaughterhouse Cases,83 U.S. zenbach v. Morgan. ' (16 Wall) 33, 81(1873): This still leaves unanswered the ques- "We doubtvery much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of tion put in the light of Congress' primary their race. wil ever be held to come within the purview of the and plenary responsibility to enforce and provision [Equal Protection Clause]. It is so clearly a provision for that race and that emergency, that a strong case would be necessary implement the Civil War Reconstruction for its application to any other." Amendments, particularly the Four- 191. See Tollett. supranote 2 at 215, n- 125 and accompanying text.The Warren Courtin Morgan based itsapproval of this provision of the teenth: Voting Rights Act of 1965upon the enforcement of the Equal Protec- tion Clause of the Fourteenth Amendment. Does [this] mean that Congress has 7 192. Seediscussion ofSwann, p. 3 . supra. plenary power to regulate equal access to 193. Section 2, paragraph three ofArticle Ill provides: public schools - including the matter of "In all Casesaffecting Anbassadors. other public Ministers and busing?"' Consuls, and those in which a State shall be a Party. the Supreme Courtshall have original Jurisdiction. In all the other Cases before Congress has the power to remedy racial mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such discrimination as well as the Supreme Regulations as theCongress shall make." (Emphasis added) Court, but ordinarily this should not In Ex Parte McCardle 74 U.S. (7 Wall) 506 (1869). the Supreme Court upheld Congressional legislation repealing the right under mean it has the power substantially to Congressional legislation of petitioner to seek review in the Supreme frustrate the enforcement of remedies the Courtof the denial of the writ of habeas corpus. Relying heavily upon the italicized language quoted above from Article III, § 2 Paragraph 2 Court has found necessary and ap- Chief Justice Chase for the Court said: propriate to right constitutional injuries, "We are not at libertyto inquire into the motives of the legislature. We can only examine into its power underthe Constitution; and the that is, the denial of equal protection of power to make exceptions to the appellate jurisdiction of this court is the law.193 given by expresswords. , Jurisdiction is power to declare the law, and when it ceasesto Congress may attempt to undercut exist, the only function remaining to the courtis that of announcing busing through legislation based upon the fact and dismissing the cause." 74 U.S. at 507. 194. Gunther and Dowling, Constitutional Law 264 (8th ed., Supp. 1972). two main theories. One theory is Article 195. Justice Douglas joined by Justice Black said in 1962 that it was most III of the United States Constitution questionable whether the exception interpretation handed down in McCardle could command a court majority today. Glidden Co. v. which purportedly empowered Congress Zdanok, 370 U.S. 530 (1962). One must be most skeptical whether to except certain kinds of cases from the Douglas' view properly characterizes the viewpoint of the Nixon-Burger Courttoday since Burger is bent upon excluding whateverjurisdiction or jurisdiction of the Supreme Court. Thus work he can from the Federal Courts. Seetext supra pp. 11-12 and note Senator Griffin of Michigan proposed 82 and accompanying text. PAGE 34 THE BLACK LA W JO URNA L PAGE 34 THE BLACK LAW JOURNAL The second theory would be a proceedings.99 The decisions in these Congressional claim that it was enforcing areas were too numerousto be dealt with the Equal Protection Clause. The short properly in a synoptic overview. That is argument against such a congressional even more so the situation today. "° Thus attack upon "racial balance," race rela- only a few of the more far-reaching tions concededly being an area where decisions decided during the last three it should have very broad powers of en- terms will be touched upon. forcement, is that the purpose is not only President Nixon's campaign emphasis transparently anti-integration, but also upon appointing "strict constructionists" obviously preservative of the vestiges of to the Supreme Court was intended to slavery prohibited by the Thirteenth result in the greatest impact upon and Amendment. That is, the effect of such a change in the direction of Court decisions provision would be to frustrate the en- affecting the rights of the accused. A new forcement of the School Desegregation balance was to be struck in favor of the decision and to preserve the vestiges of public right to "law and order." President slavery. Surely if "the existence of a per- Nixon already has realized his intentions missible purpose cannot sustain an im- in this area, although not totally. The permissible effect,"' 96 then the existence of Nixon-Burger Court has expanded, con- a Supreme Court defined and constitu- tracted, and diluted the application of the tionally articulated impermissible pur- Bill of Rights. The exclusionary rules pose may not sustain the same impermis- have been subjected to severe attack. A sible effects. 97 Furthermore, it was the measure of egalitarianism has been avowed intention of the framers of the maintained and even expanded, but in- Thirteenth, Fourteenth and Fifteenth dividual integrity has been given erratic, Amendments which should be disposi- if not destructive treatment. tive of this question. This writer has else- (1) The Bill of Rights - Sur- where concluded: prisingly enough, the Court had nev- In applying any doctrine which is a gloss er decided whether the Constitution re- on the Equal Protection Clause it must be quired the conviction of an accused determined what values are served by that must be based upon proof beyond a application. If it impairs the fulfillment of reasonable doubt. More surprisingly the Black interests and rights, then it does Court made its first determination of violence to the spirit, purpose and meaning of the Equal Protection Clause."' such a requirement in a juvenile delinquency proceedings.2"' In In the d. RIGHTS OF THE PUBLIC OR LAW Matter of Winship22 the Court in a five to AND ORDER: WAFFLING THE RIGHTS OF three opinion, with Chief Justice Burger THE ACCUSED

When the egalitarianism, the 196. See discussion of Wright Y. Emporia, supra p. 38. 197. See also School District Y. Schempp. 374 U.S. 203 (1963) where the Court jurisprudence of individual integrity, and struck down Holy Bible reading in school on the grounds that an enact- the affirmation of the positive content ment could not stand if its "purpose and ... primary effect" were the violation of the Constitution, that is, the Establishment Clause of the and worth of American citizenship of the First Amendment. Warren Court were discussed in the first 198. Tollet, Blacks, Higher Education and Integration 48 Notre Dame Lawyer 189, 207 (1972). installment of this article concerning the 199. Toilett, supra note 2 at 215-218. area of criminal justice, three categories 200. One third of the over 140 cases decided during the 1971 Term where formal opinions were written involved criminal law and procedure. of cases were touched upon: (1) cases 201. The Court during the Warren era had already decided that juvenile making the Bill of Rights good against court proceedings required affording a juvenile due process before commitment to an institution which meant granting sufficient notice to the states, (2) cases expanding the permit defense preparation, notifying child of his right to be exclusionary rules, and (3) cases promot- represented by counsel (including assigned counsel if necessary), and affording juvenile privilege against self-incrimination and the rights of ing equal treatment and the individual cross-examination and confrontation. In Re Gault, 387 U.S. 1(1967). integrity of the accused in criminal 202. 397 U.S. 358 (1970). THE BLACK LA W JO URNA L PAGE 35 THE BLACK LAW JOURNAL PAGE 35 and Justices Stewart and Black dissent- conviction of the accused for selling ing, held that proof beyond a reasonable bootlegged whiskey. Chief Justice Burger doubt was among the essentials of due rejected the Court of Appeals' emphasis process and fair treatment required on the investigator's failure to provide "when a juvenile is charged with an act the magistrate with specific evidence that which would constitute a crime if com- the informer was a reliable source of in- mitted by an adult.""2 3 formation. The Court of Appeals had During the same term the Court ex- reversed the District Court conviction. panded its Fifth Amendment Double Burger urged flexibility and emphasized Jeopardy holding 204to cover an accused the personal knowledge and great detail who was tried and convicted of violating of the informer's tip. The investigator's two city ordinances and then tried and knowledge of the defendant's reputation convicted of the felony of grand larceny and the informant's admission of the in violation of state law. Waller v. self-incriminating purchase of the defen- Florida0 held that the second trial con- dant's whiskey indicated he was telling stituted double jeopardy in violation of the truth. Aguilar v. Texas"'° earlier had the Fifth and Fourteenth Amendments. required that an affidavit must spell out Foreshadowing the accelerating trend of circumstances from which the informer special solicitude for property interests, decided that evidence was present or that the Court in Ross v. Bernhard"°6 extended a crime was taking place and that police the Seventh Amendment Right to a Jury must submit information enabling the Trial to a substantive class of share- magistrate to determine whether the in- holders in derivative suits. However om- former was trustworthy. inously in Williams v. Florida"7 the However, in Whiteley v. Warden "' the Court upheld Florida's six man jury law Court earlier in the same term invalidat- in the conviction of a defendant for rob- ed an arrest based on a police bulletin bery, diluting the Sixth Amendment issued without probable cause. Right to Jury Trial in all criminal cases In California v. Byers"2 the Court secured against the states in Duncan v. upheld against a Fifth Amendment self- Louisiana."' Justice Harlan in his I-told- incrimination challenge the disclosure you-so dissent stated that his warning requirements of a state hit-and-run sta- dissent in Duncan had proven correct, for tute. In Nelson v. O'Neil"' the Court now the 12-member jury requirement in rejected a Sixth Amendment confronta- federal cases was necessarily under- tion challenge to hearsay evidence where mined. the declarant had taken the stand and During the 1970 Term the Court testified. Finally, McKeiven v. Pennsyl- lowered the Fourth Amendment affidavit vania"4 refused to require a Sixth requirement for a search warrant in Amendment jury trial in juvenile United States v. Harris.29 A police delinquency proceedings. affidavit largely based on an informer's The criminal law cases decided during tip undergirded a magistrate's finding of probable cause for granting a search 203, 397 US at 359, 204. Benton a. Md, 395 U.S. 784 (1969) See Tollett, supra note 2 at n. 133 warrant. The affidavit stated that the and accompanying text. affiant was a "prudent person." There 205. 397 U.S. 387 (1970). 206. 396 U.S. 531 (1970). was no evidence that the unidentified in- 207. 399 U.S. 78 (1970). former had ever given reliable informa- 208. 391 U.S. 145 (1968). 209. 403 U.S. 573 (1971). tion before. The Supreme Court in a five 210. 378 U.S. 108(1964). to four decision, of which no part com- 211. 401 U.S. 560 (1971). 212. 402 U.S. 424 (1971). manded a majority, upheld the issuance 213. 402 U.S. 622 (1971). of the warrant and thus sustained the 214. 403 U.S. 528 (1971). PAGE 36 THE BLACK LAW JO URNA L PAGE 36 THE BLACK LAW JOURNAL the 1971 Term are too numerous for an ment, it decided that less than unanimity adequate discussion here.2 5 In the 1971 of a jury did not create a reasonable Term the Court reinforced the Warrant doubt. The Court reached the same result 222 Clause of the Fourth Amendment in a in Apodaca v. Oregon, although the decision which has positive First majority of the members of the Court Amendment implications. In United thought the Sixth Amendment was States v. U.S. District Court2z6 the Court applicable. However, Justice Powell did held in an unanimous opinion (Justice not think the unanimity rquirement of Rehnquist excused himself) that the the Sixth Amendment was incorporated warrantless electronic surveillance of by the Fourteenth Amendment, although "domestic subversives" violates the he agreed with the four dissenters (Jus- Fourth Amendment. The Court rejected tices Douglas, Brennan, Stewart, and the claim of the Attorney General that as Marshall) that the Sixth Amendment an agent of President Nixon he was does include a unanimity requirement in exercising the "inherent power of the federal cases. Chief Justice Burger and President to safeguard the security of the Justices Blackmun, White and Rehnquist nation" by wiretapping domestic sub- did not think unanimity was required versives without judicial sanction, constitutionally by either due process or notwithstanding the wiretap provision of the jury provision of the Sixth Amend- the 1968 Crime Control Act requiring ment. This decision is particularly judicial supervision except to prevent ominous for Blacks because it will cir- foreign attack, gather foreign intelligence cumvent the value and protection information, or in national emergencies. realized by having Blacks on juries when Justice Powell indicated that government a Black is a criminal defendant. had a tendency, no matter how The Sixth Amendment took a special benevolent or benign, "to view with sus- beating. A defendant's right to a speedy 2 picion those who most fervently dispute trial" was subjected to a four-factor 224 its policies."2 7 Thus the government must balancing test in Barker v. Wingo. The make full disclosure to defendants of Court unanimously decided that a four overheard conversations in a criminal year delay after indictment did not prosecution for conspiracy to destroy necessarily violate the Speedy Trial federal government property.2 8 215. See, e.g. n. 200. However, the Fifth Amendment 216. 407 U.S. 297 (1972). Privilege Against Self-incrimination 217. 407 U.S. at 314. 2 9 218. The Fourth Amendment rights of the accused were not treated with Clause was diluted in Kastigar v. U.S." such solicitude in Adams v. Williams, 407 U.S. 143 (1972). The Warren and Zicarrelliv. New State Commission of Court approval of stop-and-frisk in Terry v. Ohio, 392 U.S. 1 (1968) 22 required that a police officer have something specific to go on. The Investigation. The use and derivation Adams case held that an officer may act on a specific basis other than immunity provision of the Crime Control that of personal observation. The stopping here was based upon a female informant's claim to an officer at 2:15 a.m. that the defendent Act of 1970, 18 U.S.C. § 6002, was upheld had a gun and possessed narcotics. This information was sufficient in Kastigar.In a five to two decision the cause for the officer to ask the defendant in the car to get out, and when the defendant only rolled down his window, the officer was justified in Court held that the Fifth Amendment reaching into the car to seize a gun in the defendant's waistband where did not require transactional immunity. the informant said he had it. Although the informant's tip may not have given the officer probable cause to make an arrest, it did justify a Zicarrellireached the same result under a forcible stop and subsequent frisk. Justices Douglas, Marshall, and similar New Jersey immunity statute. Brennan dissented. They thought the stop-and-frisk rationale should not apply in purely possessory offenses. Justice Marshall argued that The due process requirement of proof the majority treated warrantless searches as if they were the rule rather beyond a reasonable doubt decided in than narrowly drawn exceptions. 219. 406 U.S. 441 (1972). the Winship case was contracted and 220. 406 U.S. 472 (1972). 2 diluted in Johnson v. Louisiana. 221. 406 U.S. 356 (1972). 222. 406 U.S. 404 (1972). Although the case did not involve the 223. Klopfer v. N.C., 386 U.S. 213 (1967). jury requirement of the Sixth Amend- 224. 407 U.S. 514 (1972). r - - - - - 17 ------r ------r- --I - - - - - ANA Policyand I . NA's Patent, :4. Collective Bargaining 15. Construction Labor ReglationRport Practice Series Trademark & Negotiations 1 RegulationReport I For Employee Co I & IontrartsI Report I Relations Executive pyright Journal Contracts r ------r - - - - - II ------j - - II 6. Copyright Laws & :7. Criminal Law 8. Daily Labor Report 9. 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STATE ZIP L------PAGE 38 THE BLACK LA W JO URNA L PAGE 38 THE BL4CK LAW JOURNAL requirement of the Sixth Amendment. situations. Justices Brennan, Douglas, Justice Powell stated that the four factors and Marshall dissenting believed Wade to be considered were (1) the length of and Gilbert were applicable to pre-in- the delay, (2) the reason for the delay, (3) dictment lineups. the defendant's assertion of the right or The discussion of the Bill of Rights cases 232 may be ended upon a qualifiedly failure to assert it, and (4) the prejudice 2 33 caused by the delay. In this case the auspicious note. In Furman v. Georgia defendant did not demand a trial until the Court in a five to four decision held three years after the indictment. Justice the imposition and execution of the death Powell indicated that society's interest in penalty in the cases before it would con- a speedy trial was independent of and stitute cruel and unusual punishment in frequently in opposition to the defen- violation of the Eighth Amendment. dant's interest. The Court held in U.S. v. Justices Brennan and Marshall thought Marion22 that a three year delay between the death penalty was cruel and unusual the commission of a crime and an indict- per se. Justice Douglas thought it was ment did not violate the speedy trial unusual because it was disproportion- requirement. Four of the seven sitting ately applied to Blacks and the poor. The Justices thought the speedy-trial discretionary imposition of it by judges provision came into play only after in- and juries provided an opportunity for dictment or criminal prosecution had venting racial, religious and class begun - that is, after a person is accused. prejudices. Justice Stewart thought it was Statutes of limitations already protect constitutionally permissible if imposed preindictment delays. Justices Douglas, upon all who committed certain crimes. Brennan and Marshall, while concurring, It was unusual because it was so expressed the view that in some circum- infrequently imposed. Justice White saw stances a preindictment delay might vio- it no longer contributing to any discerni- late the speedy trial provision. ble social or public purpose as contem- Mancusi v. Stubbs226 held the Sixth porarily administered. Amendment right of confrontation was Chief Justice Burger and Justices not violated when the prosecution failed Blackmun, Powell, and Rehnquist dis- to produce a key witness in a second trial. sented. Another Nixon appointee proba- At the murder retrial the witness' tes- bly will result in the reinstatement of the timony at the first trial was admitted into death penalty. evidence. Schneble v. Florida227 held that (2) Exclusionary Rules - As in- admission of a jointly tried co-defen- dicated in the first installment the con- dant's (he did not testify) out-of-court troversial exclusionary rules have proba- statement corroborating defendant's bly been "the most effective means of confession was harmless error or non- safeguarding the rights of the accused. 234 prejudicial. The 1969 Term was uneventful in this Kirby v. Illinois228 retreated from U.S. area. However, the 1970 and 1971 Terms v. Wade229 by holding the rights to counsel have witnessed severe attacks against and the per se exclusionary rule were 225. 404 U.S. 307 (1971). based upon a post-indictment lineup as 226. 408 U.S. 204 (1972). one of those "critical stages" at which 227. 405 U.S. 427 (1972). 228. 406 U.S. 682 (1972). See McGee, Blacks, Due Process and Efficiency in counsel is necessary. Right to counsel in the Clash of Values as the Supreme Court Moves to the Right, 2 B.L.J. pre-indictment situations like Escobedo v. 220 (1972). 23 ° 23 229. 388 U.S. 218 (1967). Illinois and Miranda v. Arizona ' were 230. 378 U.S. 478 (1964). primarily designed to protect the 231. 384 U.S. 436 (1966). 232. A few other cases involving theBill of Rights will be discussed infra. privilege against self-incrimination 233. 408 U.S. 238 (1972). which is a serious risk in pre-indictment 234. Toilett, supra note 2 at 217. THE BLACK LAW14JO URNA L PAGE 39 THE BLACK LAW JOURNAL PAGE 39 exclusion of evidence obtained by un- ternative to a judicially activist assault constitutional means. Moreover, even against government illegal behavior. The during the Warren Court era a decision residue of the frontal assault, legalism, was rendered which planted a seed which paradox, and irony is that Blacks, the ac- had great potential to grow sprawling cused, and the unfavored will be depen- vines which might suffocate or distort the dent upon a stultified and almost impo- trunk, branches, and leaves of the pro- tent Congress to protect their basic cons- tective exclusionary rules. The Warren titutional rights against an increasingly Court through Justice Black in Chapman oppressive, repressive, and regressive v. California,235 held that the violation of a Executive Branch. 23 constitutional right, such as the privilege First, Harrisv. N. Y. 1 held that a prior against self-incrimination, might under statement obtained in violation of certain circumstances amount to Miranda23 9 may be admitted to impeach "harmless error.' '2 6 Although he conced- the testimony of the accused. Chief Jus- ed some constitutional rights were so tice Burger wrote for the five to four basic to a fair trial that their violation majority: could never be treated as harmless error, Assuming that the exclusionary rule has a the violation of certain other unspecified deterrent effect on proscribed police con- constitutional rights might be so treated. duct, sufficient deterrence flows when the He stated that the appropriate federal evidence in question is made unavailable to the prosecution in its case in chief. rule is that before constitutional error can Every criminal defendant is privileged to be regarded as harmless the state must testify in his own defense, or to refuse to do "prove beyond a reasonable doubt that so .... the error ... did not contribute to the The shield provided by Miranda cannot verdict obtained. '237 However, the Court be perverted into a license to use perjury by way of a defense, free from the risk of in applying this standard found the confrontation with prior inconsistent prosecutor's improper comment upon utterances.20 defendant's failure to testify was not harmless error. Justice Brennan, joined by Justices In spite of the importance and Douglas and Marshall, dissented. He ar- complexity of this subject it will be dealt gued that the right guaranteed the unfet- with very briefly. Indeed, although the tered privilege to testify or not to testify. exclusionary rule is unquestionably The use of utterances made without under severe attack, three of the four Miranda warning compromises this decisions to be discussed which have privilege. An accused should be able to been rendered since Chief Justice Burger testify without fear of use of illegally ob- joined the Court are pro-accused. One tained prior utterances. He continued: will explicitly demonstrate a frontal as- The objective of deterring improper sault upon the rule. The second will in- police conduct is only part of the larger ob- dicate the highly legalistic, conceptualis- jective safeguarding the integrity of our ad- versary system.... The Court today tells the tic, and even metaphysical quality of the police that they may freely interrogate an application of the rule. The third will accused incommunicado and without coun- show the paradox of the Court progres- sively and boldly attempting to protect 235. 386 U.S. 18 (1967). 236. For collateral use exception to exclusionary rule see Walder v. U.S., the Fourth Amendment rights of the ac- 347 U.S. 62 (1954) (holding that a court might properly admit tes- cused by creating a remedy which earlier timony regarding prior illegally seized evidence in order to impeach defendant's testimony concerning an independent transaction and proved so inadequate that its inade- subsequent offense. quacy produced the expansion of the 237. Chapman v. California,386 U.S. 18, 24 (1967). 238. 401 U.S. 222 (1971) (Emphasis added) exclusionary rule. The fourth ironically 239. For a brief discussion of Mirandasee Tollett, supra note 2 at 218. will suggest a qualified prototypical al- 240. 401 U.S. at 225-26. PAG E 40 THE BLACK LA W JO URNA L PAGE 40 THE BLACK LAW JOURNAL set and know that although any statement detached magistrate it was improper they obtain in violation of Mirandacannot be although it clearly was based upon used on the State's direct case, it may be introduced if defendant has the temerity to probable cause. This made the search of testify in his own defense. This goes far the automobile improper. The Court toward undoing much of the progress made further ruled that assuming the arrest was in conforming police methods to the Cons- 24 lawful, the seizure and subsequent search titution. ' of the car were not lawful incidents of it. Coolidge v. New Hampshire"2 is a Although Chimel v. California.3 which very important Fourth Amendment case restricted searches incidental to arrests to because it remorselessly applies and, the arrestee's person and the areas within perhaps, even expands the exclusionary his immediate reach and control was not rule in a fact situation which emotionally applicable,2" nevertheless, the Court held drives many toward its curtailment or that even under the old rule245 the seizure elimination. It also raises a most and search of the car were not proper. interesting question regarding the law of The search of the car was not contem- warrantless arrests. The facts, briefly poraneous with the arrest. The special stated, were that a fourteen-year-old rules applicable to automobiles were not baby sitter left home about six one even- relevant because there were no exigent ing and her frozen shot and stabbed body circumstances. The in "plain view" rule was found eight days later. Medical did not apply because it may not be evidence indicated she died between used to justify an exploratory search, eight and ten the evening she left, and which would undermine the warrant a car fitting the description of the defen- requirement, and the discovery of plain dant's was seen the evening of the death view evidence should be inadvertent. near where the victim's body was found. Otherwise planned warrantless seizures After an extensive investigation connect- would be encouraged. The values served ing the defendant, Coolidge, to the crime, by the warrant requirement are the de- he was taken to police headquarters termination of probable cause and limi- where he agreed to submit to a lie detec- tation of searches to things particularly tor test. While at headquarters other described. Justice Stewart's majority officers went to his home and his wife opinion concerning the search of the auto permitted them to search premises and raised the most interesting question of seize a rifle and article of clothing. whether arrests without warrants when Seventeen days later on the basis of an there is probable cause that a suspect has arrest and search warrant issued by the committed a felony arejustifiable "under Attorney General who had personally circumstances where no reason appears involved himself why an arrest warrant could not in the sensational case, 246 have Coolidge was arrested and his car seized been sought. and towed away. Two days later his car There was a plurality of opinions con- was vacuumed and particles were found curring and dissenting. Justice Harlan which connected him with the crime. The would like to overrule Mapp and Ker247 Supreme Court sustained the refusal to because incorporation of Bill of Rights suppress the rifle and clothes obtained was already relaxing federal stardards. from his wife, but upheld the defendant's Justice Black repeated his plaint that the contention that evidence obtained from the car should be suppressed because it 241. 401 U.S. at 231-32 (Emphasis added). was the product of an unlawful search 242. 403 U.S. 443 (1971). 243. 395 U.S. 752 (1969). and seizure. 244. Williams v.United States, 401 U.S. 646 (1971) (held that the Chimel The Court held that because the rule was not to be retroactively enforced.) 245. United States v. Rabinowitz, 339 U.S. 56 (1950). warrant was not issued by a neutral and 246. Coolidge v.N.H., 403 U.S. 443, (1971). THE BLACK LA W JO URNA L PAGE 41 THE BLACK LAW JOURNAL PAGE 41 Fourth Amendment does not constitu- terrent impact "is diluted by the fact that tionally compel the exclusion of evidence there are large areas of police activity unreasonably seized or without a proper that do not result in criminal prosecu- warrant. Justice White recommended tions ...."252 He emphasized that private treating a stationary car like houses and damage actions had not adequately pro- readily movable objects like the arrest of tected citizens from police misconduct a person. Arrests of persons may be made and suggested Congressional legislation without a warrant where there is proba- as a substitute for the Suppression Doc- ble cause. trine. He thought Congress should waive In spite of the technical legalism of sovereign immunity as to illegal acts by Justice Stewart's opinion, its spirit and law enforcement officials, create a cause result may be justified by the following of action for damages sustained by any language from his opinion: person aggrieved by violation of Fourth If times have changed, reducing every- Amendment or other legislation regulat- man's scope to do as he pleases in an urban ing official conduct, create a quasi- and industrial world, the changes have judicial tribunal like the United States made the values served by the Fourth t Court of Claims to adjudicate the Amendment more, not less, important." damage claims, and provide that the stat- Bivens v. Six Unknown Narcotics utory remedy was a substitute for the Agents"' is especially important because exclusionary rule in Fourth Amendment it sets forth or implies an alternative to cases. He thought that once such a the exclusionary rule, which because of scheme was constitutionally validated, past ineffectiveness was expanded.25° The "States would develop their own Court held that federal agents who had remedial systems on the federal conducted a search in violation of the model ..."253 Fourth Amendment were subject to a Finally, Gelbard v. United States54 held civil action for damages although Con- that a grand jury witness could not be gress had not so provided. Chief Jus- held in contempt for refusing to testify tice Burger and Justices Black and Black- before a grand jury which evidentiarily mun dissented with the Chief Justice was probing the products of a warrantless vigorously making a fullscale assault wiretap. Justice Brennan wrote for the against the exclusionary rule. five to four majority that the Govern- The Chief Justice argued that "the ment's violation of the 1968 Omnibus history of the suppression doctrine dem- Crime Control Act's Title III, 18 U.S.C. § onstrates that it is both conceptually 2515251 and its exclusionary rule consti- sterile and practically ineffective in ac- 25 complishing its stated objective." ' He 247. Kerv.California, 374 U.S. 23 (1963) (holding 5-4that an unannounced thought "the release of countless guilty entry by state police is governed by different rules from those applied in federal cases, although subject to federal constitutional standards of criminals" was a high price to extract reasonableness.) from society for the purchase of a sterile 248, 403 U.S. at 455. 249. 403U.S. 388 (1971). and ineffective doctrine. He said that it 250. Justice Frankfurter had maintained for the Court in Wolf v.Colorado, was most questionable that it deterred 338 U.S. 25 (1949) that although the Fourth Amendment applied to the states, the proper remedy for its violation was a civil damage action, not illegal conduct by the police because it the exclusion of the evidence. Mapp v. Ohio, 367 U.S. 643 (1961) did not directly apply a sanction to mis- overruled Wolfand applied the federal exclusionary rule because no other remedy seemed effective tosecure Fourth Amendment rights. behaving police, but to prosecutors in 251. Bivens, supra note 249 at 415. their efforts to successfully prosecute in- 252. Id at418. 253. Id.at 423-24. dividuals who had wronged society. 254. 408 U.S. 41 (1972). Police can hardly become well versed in 255.Sec. 2515: "Probation of use as evidence of intercepted wire or oral communication." the fine points of appellate opinions and Whenever any wire or oral communication has been intercepted, no furthermore the rule's questionable de- part of the contents of such communication and no evidence derived PAGE 42 THE BLACK LA W JO URNA L PAGE 42 THE BLACK LAW JOURNAL tuted a statutory "just cause" for excus- applying the Fourth Amendment to ing a witness from penalty under the electronic eavesdropping, that justifiable contempt provision of the Judicial Code expectations of privacy, reasonably for refusing to answer grand jury ques- relied upon, were secured from govern- tions. Justice Rehnquist, joined by Chief mental intrusion and search without Justice Burger and Justices Blackmun warrant should have been included in the and Powell, dissented, saying the 1968 discussion of the Warren Court. Omnibus Crime Control Act was The erosion of Miranda already in- designed to limit the rights of the ac- dicated in the discussion of Harrisv. N. Y. cused, not to enlarge them. 56 implies a diminution, in the mind of the (3) Egalitarianismand Individual Nixon-Burger Court, of the respect Integritfy57-One of the brightest spots of government must accord the dignity and the Nixon-Burger Court is that egali- integrity of its citizens. The assault upon tarianism as developed in this context by the exclusionary rule is another exarfiple, the Warren Court has been maintained. for it signifies a cavalier attitude toward During the 1969 Term the Court held in government playing an ignoble role in Williams v. Illinois25 that Illinois could law enforcement. 10 On the first aspect of not incarcerate an indigent beyond the individual integrity there is hardly room maximum prison term set by statute for the crime he was convicted simply therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, because he failed to pay his fine or court agency, regulatory body, legislative committee, or other authority of costs in a lump sum. During the 1970 the United States, a State, or a political subdivision thereof if the 259 disclosure of that information would be in violation of this chapter. Term, the Court in Tate v. Short in- 256. The dissenters' position makes clear what Nixon's strict construc- validated the imprisonment of an in- tionism, "law and order," and judicial self-restraint mean. Although againstjudicial review in general (probably becase of his ineradicably digent criminal who was unable to pay a unhappy memory of what the Court did to early New Deal legislation fine where the fine was the only sanction. during his close association with President Roosevelt) Rexford G. Tugwell has appositely observed in writing about the Burger Court: And last term in Argersinger v. Hamlin'to "What is not obscure - indeed, what is most evident - is that the the Court in a seven to two decision ex- Court still regards itself as a maker of constitutional law, a kind of superlegislative, whose first duty is to bringthe nation back to its views tended the Gideon doctrine to mis- ofjustice and tranquility." (Emphasis added) demeanors, holding no accused may be Tugwell, Reflections on the Warren Court: Legislation by the Judiciary was one of its principal legacies to the present Court, The Center deprived of his liberty as the result of a Magazine, January/February 1973, at 59,63, prosecution in which he is denied the as- 257. In discussing this topic in the first installment, Tollet, supra note 2 at 217-218, Griswold v. Connecticut, 381 U.S. 479 (1965) was inadvertently sistance of counsel. Justices Powell and left out. However, it was alluded to in the discussion of "Standing." Rehnquist dissented, arguing the right to Tollett, supra, note 2 at n. 26 and accompanying text. 258. 399 U.S. 235 (1970). counsel is not absolute in petty offense 259. 401 U.S. 395 (1971). cases. 260. 407 U.S. 25 (1972). 261. E.g., Mayer v. Chicago404 U.S. 189 (1971) (A defendant is entitled to There were other significant egali- free trial records in misdemeanor as well as felony cases). tarian decisions,26 ' however, a few cases 262. Tollett, supra note 2 at n. 156 and accompanying text. 263. 389 U.S. 347 (1967). See generally Tollett, Bugs in the Driving Dream: involving individual integrity must be The Technocratic War Against Privacy, 17 Howard Law Journal 775 touched on briefly. Through reference to (1973). "The curious notion has become popular that the way to protect the public from lawless muggers, dope traffickers, and subversives is Miranda, individual integrity was in- for 'honorable and decent' law enforcement officials, who know the tended to connote "'the respect a govern- tradition of their country, to bug homes, to detain suspects without bail, and to harass political dissidents all in violation of various ment - state 0 federal - must accord to provisions of the Bill of Rights. Thus, order is presumably secured by 2'62 the dignity and integrity of its citizens." government officials becoming buggers, and false and preventive imprisoners, and political persecutors. The Constitution's profile is Through the absent, but intended lowered while demagogic postures are escalated. A society promised to reference to Griswold individual integrity be lifted by a driving dream has its predominantly Black citizens' homes in the nation's capital degraded by no knocking gendarmes, its was intended to connote the right of privacy electronically diminished by nightmarish snooping and its privacy and certain other rights "retained protestors against war, poverty, and racism persecuted by politically motivated prosecutions." Id. by the people" in the Ninth Amendment. 264. The dilution and contraction of the Bill of Rights discussed pp. 65-72, Katz v. United States263 which held, in supra, means the same thing. THE BLACK LA W JO URNA L PAGE 43 THE BLACK LAW JOURNAL PAGE 43 for debate regarding the negative atti- The discussion below of cases dealing tude of Nixon and his appointees. Their with the vindictive assaults upon news- ideology of criminal procedure2 65 follows papermen and the Court's tolerance of the "Crime Control Model" which "'is them in many instances suggests a more based on the proposition that the repres- generalized retaliatory spirit in the Nixon sion of criminal conduct is by far the Administration and the Nixon-Burger most important function to be performed Court. by the criminal process.' "2 They reject Yet the Nixon-Burger Court has not the "Due Process Model," whose "system been entirely unsolicitous of privacy or of values revolves around 'the concept of even governmental respect for the dig- the privacy of the individual and the nity and integrity of the accused in the complementary concept of limitation on criminal process. Santobello v. New 272 official power. "261 Although Professor York, decided before Justices Powell Griffith in the article cited was not and Rehnquist joined the Court last "primarily interested in the relation of term, held that a prosecutor must honor ideology to self-interests 2 6 as was the his bargain in a plea-bargain situation. case with Karl Mannheim in Ideology Prosecutors must also inform the jury and Utopia, the latter concept should be when a key prosecution witness has been kept in mind not only in evaluating what granted immunity.73 Nixon means by "law and order" but also Eisenstadt v. Baird274 extended the an- in projecting where the Nixon-Burger ti-contraceptive privacy holding of Gris- Court is going, particularly if Nixon's wold to protect unmarried women. appointees truly reflect his judicial However, United States v. White275 did philosophy. Griffith sets forth a third not extend the reasonable expectation of model, the "Family Model," which seeks privacy holding of Katz to a defendant to transcend the martial preoccupation who incriminated himself to a govern- with obedience, deterrence, and punish- ment informant who was wired for ment. Further explication of this third sound. A government agent was permit- model is beyond the scope of this paper. ted to testify to what he heard transmit- However, Griffith's emphasis upon ted over informant's concealed treating the accused, one who has failed microphone. Mr. Justice Harlan in an to exercise expected self-control, with eloquent dissent stated: respect is well worth noting. The point is, Our expectations, and the risks we as- for example, "that torture is outrageous sume, are in large part reflections of laws even if the victim is guilty of some that translate into rules the customs and crime. ' values of the past and present. Since it is the task of the law to form and Albert A. Ehrenzweig's Psychoanalytic project, as well as mirror and reflect, we Jurisprudenceis also relevant in evaluat- should not, as judges, merely recite the ex- ing and projecting where "law and pectations and risks without examining the order" ideologues are moving.270 He dist- inguishes oedipal from post-oedipal 265. See Griffiths, Ideology in Criminal Procedure or A Third "Model" of the crimes. In reviewing Ehrenzweig's book Criminal Process,79 Yale LT 359 (1970). this writer has written: 266. Id at 363. 267.Id. Oedipal crimes are punished because of a 268. Id at 359, n.1. retaliatory urge. This urge is irrational. .... 269. Id, at 385 n. 96. 270. Ehrenzweig, Psychoanalytic Jurisprudence: On Ethics, Aesthetics, and To put it another way, many want to do "'Law"- On Crime, Tort, and Procedure(197 1); Tollett, Book Review, what the offender did. Thus they ["law and 17 Howard Law Journal 717 (1972). order" ideologues] become incensed at the 271. Tollett, supra note 270 at 719. idea of the offender getting away without 272. 404 U.S. 257 (1971). 273. Giglio v. United States, 405 U.S. 150 (1972). punishment for doing what they 274. 405 U.S. 438 (1972). repressed."' 275. 401 U.S. 745 (1971). PAGE 44 THE BLACK LA W JO URNA L PAGE 44 THE BLACK LAW JOURNAL

desirability of saddling them upon society. injunction and the ITT deal, to name just The critical question, therefore is whether a few events which shed much light on under our system of government, as reflect- the real attitude of the most vociferous ed in the Constitution, we should impose on of "law and order." It will be our citizens the risks of the electronic lis- proponents tener or observer without at least the pro- most interesting to see how the Supreme .tection of a warrant requirement?76 Court treats these matters if litigation in- volving them gets to the High Tribunal. He further argued that the burden of guarding privacy should not be on a e. CIVIL LIBERTIES AND FREEDOM OF government's citizens; it is the govern- RELIGION ment that must justify its need to elec- tronically eavesdrop. (1) Civil Liberties - New York A discussion of the Nixon Adminis- Times v. United States277 has been the tration and the Nixon-Burger Court's highpoint of the Nixon-Burger Court's preoccupation with "law and order" treatment of civil liberties. The Court should not be concluded without observ- refused the Nixon Administration's ing the more serious and legitimate con- demand to enjoin publication of the cern Blacks have for law and justice. An "Pentagon Papers." Justices Harlan and extensive quote from Herbert L. Packer's Blackmun and Chief Justice Burger dis- article in The New Republic, January 10, sented. Before concluding that freedom 1970, at pages 12 and 13 entitled "Law of the press was fully secured, the various and Order in the Seventies" makes the concurring opinions should be read. desired point "perfectly clear": Only Justices Douglas and Black condemned the first at- How do we separate myth from reality? categorically The Supreme Court, taking into account its tempt at governmental censorship. Jus- activist role as promoter of the national tice Black as well as Justice Harlan has conscience, has no causal connection at all been replaced by Nixon appointees. with the increase in the crime rate. Violent However, last term in Branzburg v. crime has indeed increased. But it afflicts the Hayes"8 and two companion cases the deprived by a factor of at least one hundred more than the "silent majority." Crime in Nixon-Burger Court held that the First the streets, as three successive Presidential Amendment did not protect newspaper- commissions - the Crime Commission, the men in their refusal to testify before Riot Commission, the Violence Commis- grand juries. The five to four decision sion - have demonstrated is not only the stated that no compelling state necessity product of the growth of our ghettos, but wreaks its major damage on the one out of needed to be shown to justify forcing 70 ghetto-dwellers who has during the past reporters to testify regarding confidential year become the prey of the young mugger, sources of information. 79 the assailant or the rapist. Contrast that with The discussion of civil liberties will be the one in ten thousand of the population as closed with a brief discussion of Supreme a whole who have been similarly victimized. Dissent. . . is a problem, but repression can Court cases affecting bar admissions. never solve [it]... Lawyers, particularly Black lawyers, have played a peculiarly important role Contrast the real and legitimate con- cern of the Black community over crime with the rampant vengefulness and the 276. 401 U.S. at 786. 277. 403 U.S. 713 (1971). apparently lawless behavior of the Nixon 278. 408U.S. 665 (1972). Administration in terms of the "Water- 279. But see,Rosenbloom Y. Metromedia 403 U.S. 29 (1971) (holding New York Times Co. v.Sullivan, 376 U.S. 255 (1964) privilege applicable in gate caper," grain scandal, political es- libel action where the plaintiff clearly did not fit into either category pionage and sabotage, election law protected by Times - "public official" or "public figure." In the latter instances newspapers are liable only if they publish kniowingly or violations including the Vesco affair, im- recklessly falsehoods. Thus the Court has moved close toward absolute poundment of funds, "Pentagon papers" immunity of news media from libel judgments. THE BLACK LAW JOURNAL PAGE 45 in litigation, legislative and administra- First Amendment rights was the reason tive programs, and community lead- for upholding the denial of the ership in the vindication of the civil lib- applicant's admission.283 On the same day erties and civil rights of Blacks and the Konigsberg, II and A nastaplo284 were poor.28° Cases which touch and concern decided the Court held also that an at- bar admissions and disbarment, espe- torney could be disbarred because he cially if motivated by considerations of obstructed an investigation into his political belief, advocacy, and mili- professional fitness by invoking the Fifth tancy, if decided against bar applicants Amendment privilege against self- and lawyers will have a non-beneficial incrimination in Cohen v. Hurley.28 impact upon Black survival and the However, six years later, two years after realization of their rights, needs, and as- the Court made the privilege against pirations. self-incrimination good against the While Earl Warren was still Chief Jus- states,286 the Warren Court overruled tice, the Court held in Konigsberg v. State Cohen in Spevack v. Klein28 holding that Bar 8' that the denial of admission of a a lawyer could not be disbarred or bar candidate on the grounds that he otherwise penalized for invoking Fifth failed to dispel doubts about his good Amendment Privilege Against Self- moral character and his advocacy of the Incrimination. In other words one does overthrow of the government by force not waive or lose his basic constitutional because of his refusal on First Amend- rights, privileges, and immunities by ment grounds to answer questions becoming a lawyer. whether he had been a member of the Three decisions involving bar admis- Communist Party was improper par- sion procedures decided since Chief ticularly since the denial threw a cloud Justice Burger took over the Court are over the exercise of the right of freedom worth briefly discussing. In Baird v. State of association and political advocacy Bar288 the Court held that the First which is protected by the First Amend- Amendment protected a bar applicant ment. However, on remand and after the from refusing to answer the following California Supreme Court returned the question: case to the bar committee, the committee Are you now or have you ever been a still denied the applicant admission but member of the Communist Party or any or- this time explicitly on the ground that the ganization that advocates overthrow of the applicant's refusal to answer questions United States Government by force or violence?2"9 about membership in the Communist Party had "obstructed a proper and 280. Tollett, Black Lawyers, Their Education and the Black Community, 17 complete investigation of applicant's Howard Law Journal 326 (1972). See also Tollett, Arousing the Silent Majority to Seek Legal Services, 24 Vand. L. Rev. 447 (1971) and qualifications for admission to practice Tollett, The Rush to Law Schools, The Center Magazine, September- law." In Konigsberg, II,282 the Court by a /October 1971 at 69. 281. 353 U.S. 252 (1957). to four vote sustained the decision of the 282. Konigsberg r. State Bar, 366 U.S. 36(1961). Board of Bar Examiners. The majority 283. On the same day the Court more explicitly held that a refusal to answer questions regarding Communist membership obstructed the proper felt that First Amendment protection of functioning of the Committee on Character and Fitness. Although speech and association was not absolute unlike Konigsberg there was not a scintilla of evidence which connect- ed the applicant to "subversive activity." his insistence about right to and that it could not be invoked as an revolution in some circumstances and about First Amendment shield excuse for obstructing the Examiners' against inquiry into his political associations or his religious beliefs caused the Committee to decline to certify applicant. In Re Anastaplo, legitimate inquiry into the character and 366 U.S. 82 (1961). fitness of applicant to practice law. In 284. In re Anastaplo 366 U.S. 82 (1961). 285. 366 U.S. 117 (1961). effect, the Court was saying that the obs- 286. Malloy e. Hogan 378 U.S. 1(1964). truction of Examiners' inquiry rather 287. 385 U.S.51 (1967). 288. 401 U.S. 1 (1971). than the exercise of not fully determined 289. 401 U.S. at 14. PAGE 46 THE BLACK LA W JO URNA L PAGE 46 THE BLACK LAW JOURNAL Justice Black wrote the opinion for the in that "long usage" narrowly had con- Court in which Justices Douglas, Bren- strued them to mean that an applicant nan, and Marshall joined. He stated: not be guilty of dishonorable conduct When a State seeks to inquire about an relevant to the legal profession. Rule individual's beliefs and associations a heavy 9406's mandate that the committee re- burden lies upon it to show that the inquiry quire an applicant to furnish satisfac- is necessary to protect a legitimate state tory proof that he "believes in the form of interest.... The practice of law is not a matter of the government of the United States and grace, but of right, for one who is qualified is loyal to such government," although by his learning and his moral character.' lending itself to substantial constitutional questions Justice Stewart in a concurring opinion regarding its propriety, had indicated that in some circumstances been construed narrowly and authorita- simple inquiry into present or past Com- tively to mean that no burden of proof was placed munist Party membership would not be upon applicant, that "form of precluded by constitutional safeguards. government" referred solely to the Con- However, mere membership can never stitution, and that "belief' and "loyalty" meant only a "willingness by itself impose civil disabilities or to take the constitutional oath and ability to do so in criminal punishment. Furthermore the 2'95 question here clearly "must be treated as good faith." The questions regarding organizational activities an inquiry into political beliefs."29' In a and associations, including scienter companion case to Baird, In Re Stolar,292 about the organiza- tions' purposes and the Court held a petitioner's refusal to specific intent to further answer certain questions regarding or- their purposes, were legitimate to ganizational and political associations determine willingness and good faith was protected by the First Amendment. ability. Justice Stewart who wrote the The Court considered the screening majority opinion emphasized that know- which involved inquiry into organiza- ing membership in a subversive organ- tional associations and political beliefs a ization where the member shared the discouragement of law students from as- specific intent to further the organiza- tions' illegal goals had been held sociating with unpopular or controversial 296 organizations. Justice Black wrote for the criminally punishable. Konigsberg, II majority: had upheld exclusion of applicant for refusal to answer questions about Com- But the First Amendment prohibits Ohio munist affiliations. He concluded that a from penalizing an applicant by denying careful administration of the system need him admission to the Bar solely because of not result "in chilling effects upon the his membership in an organization [or] 297 solely because exercise of constitutional freedoms. 293he personally. "espouses illegal aims. Justices Black, Douglas, Brennan, and Marshall dissented. Justice Black insisted However, in Law Students Civil Rights that the deprivation of the right 2 9 to prac- Research Council v. Wadmon ' the tice law entailed according applicant's Court in a five to four decision rejected a the same rights as when a state seeks to class action challenge to the New York deprive a person of any other property Bar system for screening bar appli- cants, the challenge being based primarily 290. 401 U.S. at 6. on First Amendment vagueness and 291. 401 U.S. at 9. 292. 401 U.S. 23 (1971). overbreadth. The Court held that the 293. 401 U.S. at 28. requirement that a bar applicant possess 294. 401 U.S. 154(1971). 295. 401 U.S. at 163. "the character and general fitness 296. Citing, Scales v. United States, 367 U.S. 203 (1961). requisite for an attorney" was not vague 297. L.SCRPC e. Wadmotd, 401 U.S. at 167. THE BLACK LA W JO URNA L PAGE 47 THE BLACK LAW JOURNAL PAGE 47 right. One could not be deprived Blackmun in his dissenting opinion in of the ownership of his home because Bairdmakes a clear, but oblique, allusion he failed to prove his loyalty or refused to recent controversial cases where ac- to answer questions concerning his tivist attorneys have conducted them- political beliefs. Moreover he main- selves aggressively in defense of their tained that "the First Amendment ab- unpopular clients. This is not to suggest solutely prohibits a State from penalizing that attorney behavior bordering on ob- a man because of his beliefs."2'98 The streperousness and misconduct is con- questions designed to determine an doned, but any screening process de- applicant's good faith or sincerity in signed to keep out of the legal profes- taking the oath were quite different sion or to disbar such attorneys will things from New York's constitutional inevitably affect adversely lawyers and oath. The latter was similar to the oath prospective lawyers who aggressively required of the President which is seek to protect the civil liberties and civil promissory, that is, "the declarant rights of Blacks and other unpopular promises that he will perform certain groups. duties in the future." '99 New York's (2) Freedom of Religion - Very questions directed at sincerity did not little need be written on this subject for require a promise of future action but a two reasons. One is that the Nixon- demand that applicant hold certain Burger Court generally has maintained beliefs and has loyalty to the Constitution the liberal progressive trend of the without any mental reservations. The Warren Court. Two is that this area of requirement of oath taking does not constitutional law has impacted Blacks authorize inquisition into sincerity of comparatively little although some oath takers. Earlier Justice Black ob- problems of Black Muslims may require served, "I should think a man's right to that more serious attention be given it. practice a profession should be accorded However, in any case, freedom of greater protection than his right to a tax religion is a subject of major intrinsic exemption."" importance. Justice Marshall in his dissent stated: (a) Establishment Clause - In 2 The Rule, which charters an inquisition, Lemon v. Kurtzman the Court struck fastens not upon overt conduct, nor even on down comprehensive schemes of state activities that incidentally involve the public financial assistance to nonpublic ele- exposure or advocacy of ideas, but on per- 30 mentary and secondary schools. The itself. sonal belief schemes involved the states in purchasing Questions that focus on beliefs, loyalties and subsidizing nonpublic school and affiliations, he thought, clearly were teachers' salaries and instructional proscribed by the First Amendment. materials attributed to secular subjects. The import of this decision is omi- Chief Justice Burger found that the at- nously clear. Just as Konigsberg, II cir- mosphere of the parochial schools was so cumvented the exercise of First Amend- pervasively religious that an auditing ment rights by characterizing the re- system designed to separate the secular fusal to answer questions about politi- cal associations as obstructive and non- 298. 401 U.S. at 174. cooperative in the bar admission process, 299. 401 U.S. at 179. Wadmond further expanded inquiry into 300. 401 U.S. at 178. Speiser v. Randall 357 U.S. 513 (1958) held that California could not require as a prerequisite to qualification for a political beliefs, activities and associa- veteran's property tax exemption, that a person swear not to advocate tions on the ground of determining the the overthrow of Government nor support a foreign government against the United States in case of hostilities. sincerity with which an applicant can 301. LS.CR.R.C. . Wadmond, 401 U.S. at 188. take the oath of office. Indeed, Justice 302. 403 U.S. 602 (1971). PAGE 48 THE BLACK LA W JOURNAL PAGE 48 THE BL4CK LAW JOURNAL from the sacred would excessively en- tions concerning the viability than the tangle the state into religious affairs. reliability of the Supreme Court as an Further, he saw the financial plight of institution for social change and progress nonpublic schools such that approval of beneficial to Blacks. The managerial the schemes would inevitably create mind-set of the Chief Justice and some of recurring political activity to maintain or his associates casts a shadow not only increase state aid. However, in Tilton v. over the reliability of the Court as an Richardson°3 the Court upheld Title I of institution to redress the grievances and the Higher Education Facilities Act of the violations of rights of Blacks but also 1963304 which authorized grants to both over the viability of the Court if Burger's public and private institutions of higher Study Group on the Caseload of the education for constructing various un- Supreme Court's recommendations for a dergraduate academic facilities. The National Court of Appeals are instituted. facilities could not be used for sectarian However, if the reliability of the Court is instruction, places of worship, or opera- so suspect, then its viability may be a tions connected with divinity schools. question of less concern. Expanding enrollment capacities of Although the Nixon-Burger Court higher education was a legitimate secular cannot fully be convicted by its associa- purpose; the act did not foster any im- tion with the Nixon Administration, cer- permissible effect, prohibiting direct tainly the latter is fostering an at- funding to religious activity; and the mosphere of reaction, repression, and grant authorization involved a minimal regression. This atmosphere is being amount of government entanglement. reinforced and rationalized by a conser- Justices Douglas, Black, Brennan, and vative chic which questions the native in- Marshall dissented. telligence of Blacks, the value of equal (b) Free Exercise Clause - In education opportunity (particularly in Welsh v. United States"' the Court held terms of affirmative action and compen- the limitation of a draft exemption on the satory programs), and the role of grounds of a theistic objection to par- government in correcting past neglect ticipation in war in any form violated the and denial of the rights of Blacks. free exercise clause. Exemption of Black spokesmen and leaders must be religious conscientious objectors may not cautious in their rhetoric and very turn on whether religious beliefs are sophisticated in their strategy and tactics theistic or nontheistic. However, in lest they play into the hands of the forces Gillette v. United States,"6 the Court held of reaction. Black lawyers particularly neither the establishment clause nor the must not be counsels of despair or free exercise clause requires conscien- mindless custerism. Warren Court tious objection classification for in- precedents can be intelligently used in dividuals opposed to a particular war but lower federal and state courts with some not war in general. success. Probably less reliance should be placed upon Supreme Court relief except III. CONCLUSION when claims can be fashioned in terms reminiscent of Nineteenth Century The above review of Chief Justice property interests or coincidental with Burger's first three terms on the Supreme the nouveau malheureux. The Nixon- Court definitely suggests that there are Burger Court probably will undo as substantial grounds for Blacks viewing the institution with uncertainty and 303. 403 U.S. 672 (1971). 304. 20 U.S.C. §§ 711-721 (1970). apprehension. When this survey was ini- 305. 398 U.S. 333 (1970). tially undertaken there were fewer ques- 306. 401 U.S. 437 (1971). PAGE 49 THE BLACK LAW JOURNAL much as it can, although incrementally mental pollution, and stock market and sometimes circumspectly, of what shenanigans. It is almost a joke to many the Warren Court has done which was Blacks to hear talk about respect for law beneficial to Blacks. Yet the constraints in a country that did not even seriously of the judicial process and tradition will attempt to enforce its so-called separate- preclude seismic reversals overnight. but-equal laws to say nothing about wholesale, persistent, and unconsciona- Law is a refinement of man's aspira- school desegregation tion to be civil, responsible, and orderly. ble resistance to and integration. Many college students Civility promotes sensitivity to human outraged by leaders who fulminate feelings, thoughts, and actions. Respon- are against pornography, immorality, and sibility rejects fatalistic determinism and violence while ignoring the obscene misanthropic conservatism. Orderliness of ghettos, vetoing ex- espouses the rational and purposeful deterioration support of health and education orientation of action and organization. panded programs, and condoning the savage as- Law consciousness is in part a product sault of the United States military of constitutionalism which is a species of machine waged against Indochina, legalism. Legalism is an ideology com- including its flora and fauna. However, mitted to rule following. Rule following mindless terror and apocalyptic is a form of rational decision-making and custerism are not the appropriate res- in the case of constitutions, power ponses. Intensity of outrage and certainty allocating. Thus, ever since the Constitu- of moral conviction can be the motive tional Convention there has been a prac- force for very uncivil, irresponsible and United States of attempting to tice in the disorderly conduct. solve great political and social problems On the whole lawyers, the caretakers of through the processes of law, including our constitutionalism, have served our especially judicial review. However, history and country comparatively well probably no political or social problem in spite of their sometimes "brilliant has apparently been less amenable to myopia," "superfluous rigor," and pre- legal and judicial solution than slavery cious rigidity. Public interest and civil and race relations in the United States. rights lawyers are very much in keeping Thus, it is unwise to ever put too much with the fine tradition of public service confidence in the Court as the saver of practiced by some lawyers. And even if Blacks. Yet fidelity to and respect for law sometimes "enervate[s] enable many to transcend their callous legal education indignation" and "inculcate[s] in- incivility, selfish irresponsibility, and moral and moral timidity," it has wilfull disorderliness. Law may be tellectual produced a lot of fine lawyers who are pedagogical as well as prescriptive. dedicated to correcting injustices, Although it is easy to find much fault promoting the common good, and ex- in law, lawyers, and even legal education, panding civility. the United States is fortunate to have a Thus, it is especially encouraging that professed ideological commitment to Black law student enrollment has sig- rule following. A great disservice is done nificantly increased in recent years. to rule following, and thus "law and Therefore, this article can repeat the order," when leaders inveigh against the words of an earlier article on Black so-called lawlessness of "college bums" lawyers: while frequently ig- and Black militants Knowledge is power. Black professionals noring many of the crimes of the affluent must obtain and put it at the disposal of the and the white Establishment, such as black community. Otherwise black com- widespread income tax evasion, environ- munities will be cast into outer "darkness," PAGE 50 THE BLACK LAW JOURNAL

blindly beseeching and imploring the pa- uriating in wasteful leisure. The weal- tronizing attention and feckless assistance thy capitalize their clout; the poor of white professionals and missionary im- 7 are discounted because of their pow- perialists.' erlessness. The powerful flaunt their wealth; the penurious deprecate their It would be well for Blacks to re- destitution. Blacks must knowledgeably, member in evaluating and dealing with in a unified effort, combat the conserva- whites and their institutions, whether tive arrogance of the powerful and judicial, legislative, administrative, or reshape according to their own self- corporate, that "conservatives" are self- interest the patronizing indulgence of righteously arrogant; "liberals" are omniscient liberals. High above the rag- sometimes indulgently generous. The ing liberal-conservative storm clouds former cloy the rich with largess and which threaten to deluge us all, Black special favors while berating the "idle survival and self-determination may latter poor" for "seeking handouts;" the burst in to bloom. patronize the poor with welfare while lacerating their fellow-affluents for lux- 307. Tollett, Black Lawyers, supra note 280 at 357. An exciting new publication discussing the impact of the low on black people... laymen and professionals alike will find something of value in THE BLACK LAW JOURNAL * Articles on the relationship of the law to black people * Notes on laws relevant to black people * Feature stories on outstanding black men and women In the field of law 0 Notes on citizen groups formed to deal with community A 0 andNotes individual on black legalattorneys problems engaged in the struggle for black

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