One of the unanticipated challenges I encountered along the path to my recent biography on Supreme Court Justice Tom Clark and his son, Attorney General Ramsey Clark, was the shadow cast on the elder Clark as the result of an unverified and probably inaccurate, but still highly influential historical reference. It is an impact exacerbated by our Google-based world, where even erroneous references can create a lasting marker, repeated so often that both casual observers and scholars assume its accuracy. As Nora Ephron once quipped, “You can’t retrieve your life, unless you’re on Wikipedia, in which case you can retrieve an inaccurate version of it.”
The burden of biographical inaccuracies existed long before Google or Wikipedia, of course – think George Washington chopping down a cherry tree. But when these references undermine a subject’s character – and cannot be disproven – that can mean trouble for a biographer.
For instance, the biographer of Al Shanker, the famous teachers union president and education innovator, never could disprove the frequently cited (though never documented) quote purportedly made by his subject: “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of school children.” A similar question was faced bybiographers of Justice William Brennan, who could neither completely confirm or refute an oft-cited comment said to have been made by President Eisenhower, to the effect that his appointment of Brennan and Chief Justice Earl Warren were the two worst decisions of his presidency.
All of which brings us to the story behind the purported disparagement of Justice Tom Clark by President Harry Truman, the man who appointed Clark as attorney general and later as Supreme Court Justice. The alleged controversial remarks, as well as a number of other provocative statements from the former president about other prominent subjects, derived from a series of conversations between Truman and writer Merle Miller as part of a television series that never aired and which subsequently were compiled by Miller for his 1974 best-selling book, Plain Speaking. According to Miller, Truman called Clark was “my biggest mistake,” adding, ”He was no damn good as Attorney General, and on the Supreme Court . . . it doesn’t seem possible, but he’s been even worse.” Asked by Miller to explain the comment, Truman stated further: “The main thing is . . . well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.” This is juicy stuff that, not surprisingly, has been included in various forms in nearly every subsequent biographical reference about the former Justice.
UNC Law School Professor Gene Nichol earlier this year at a Harvard symposium on the legacy of Gideon v. Wainwright and the state of funding for indigent defense blasted the legal system’s treatment of the poor.
This year marks the 50th Anniversary of Gideon v. Wainwright, the landmark Supreme Court case that held the Sixth Amendment’s right to counsel means that criminal defendants have a constitutional right to counsel whether they can afford it or not. That case placed a mandate on the States to ensure that poor criminal defendants are provided legal representation. But as Nichol and others have noted, such as ACS’s Caroline Fredrickson, too many States have fallen woefully short of ensuring that poor criminal defendants have access to competent counsel.
In an interview earlier this year with ACSblog, Stephen Bright, head of the Southern Center for Human Rights, provided his thoughts, in some ways similar to Nichol’s, about the state of indigent defense. Like Nichol, Bright noted the nation’s and legal profession’s callousness toward the poor.
Bright (pictured) said, “One would think that if the court said this is what the Sixth Amendment to the Constitution of the United States, the right to counsel, that this is what it means – that the state has to provide a lawyer that the states would have done that. But Gideon has been treated as an unfunded mandate.”
So why have many States given short-shrift to funding of indigent defense services? Likely, Bright said, the answer lies with a society that has remained indifferent, at best, to poverty.
“When Robert F. Kennedy was attorney general, he said the poor person accused of a crime has no lobby,” Bright noted. “That’s exactly right. There’s no constituency.”
During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.
As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."
There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.
Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
In an impassioned speech before a gathering on Constitution Day earlier this week retired Montana Supreme Court Justice James C. Nelson tackled the ongoing effects of the U.S. Supreme Court’s Citizens United v. FEC opinion and Justice Antonin Scalia’s defense of originalsim.
Nelson’s speech, a must-read for all interested in constitutional debate, started with a look at the Roberts Court’s 2010 opinion in Citizens United giving corporations greater ability to spend on elections, including judicial elections. Citing a recent study sponsored by ACS, Justice at Risk, Nelson (pictured) noted how quickly Citizens United has impacted state Supreme Court judicial elections. (Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions provides new data showing, among other things, a significant relationship between group contributions to state Supreme Court justices and the voting of those justices in cases involving business matters.)
Nelson said, in part:
Importantly for Montana judicial elections, the data show expenditures influenced judges’ decisions in both partisan and non-partisan elections systems. The report reveals the influx of expenditures generated by Citizens United and subsequent cases is having significant impact on judicial impartiality. The data demonstrate there is stronger correlation between business contributions and judges voting in the period from 2010 – 2012, compared to 1995 – 1998. And, unfortunately, Justice at Risk concludes that there is no sign that politicization of Supreme Court elections is lessening. Indeed, powerful interest groups’ influence on judicial outcomes will only intensify.
Nelson dove into the ongoing debate over constitutional interpretation, tying it to the outcome in Citizens United. Last month at a Federal Society gathering in Bozeman, Justice Scalia provided yet another defense of originalism as a serious method of constitutional interpretation.
In post for ACSblog’s 2013 Constitution Day symposium, Erwin Chemerinsky remarked that it is rather obvious why originalism is a wobbly way to attempt to interpret and apply constitutional principles and values. It makes little sense, Chemerinsky wrote, “to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”
At the University of Montana School of Law event, hosted by the ACS Montana Chapter, Nelson had similar observations, saying “originalism is grounded more in opportunistic hypocrisy than in fact and substance.”
Every high school history student learns that since Marbury v. Madison, the courts “say what the law is.” However, when we vote we choose those who choose our judges, which means We the People play a role in saying what the law is. Americans recognize that judges and justices approach the law from different perspectives and that their approaches affect the outcomes of cases we care about. Presidential candidates make promises about what kinds of judges they will appoint for a reason: because it matters. But what do the American people expect from our judiciary?
We’re often told Americans want a “conservative” Court and that they are sympathetic to originalism. A poll taken after Justice Stevens announced his retirement indicated that more Americans (42 percent) wanted a new justice who would make the Court more conservative than those who wanted to see the Court become more liberal (27 percent). Some surveys hint that Americans’ views on constitutional interpretation are sharply divided: a Pew Survey found that half of Americans (50 percent) say the Court’s rulings should be based on its understanding of what the U.S. Constitution means in current times, while about as many (45 percent) say rulings should be based on its understanding of what the Constitution meant as originally written. Yet although voters might find the term “conservative” and the idea of “as originally written” appealing in principle, they don’t agree with what the conservative justices do in practice.
Americans overwhelmingly support upholding Roe v. Wade, which has become conservative shorthand for a liberal, activist Court. Even Roe’s supporters don’t tend to call it conservative or claim it exemplifies originalist constitutional interpretation, yet only 29 percent of Americans believe that Roe should be overturned, which is fewer than the 43 percent who believe abortion is “morally wrong.”
Most Americans also agree with the Court’s ruling in U.S. v. Windsor, which struck down the section of the so-called Defense of Marriage Act that denied same-sex couples federal benefits. This places them at odds with the Court’s conservative bloc. By contrast, 33 percent approve of the Court’s decision in Shelby County v. Holder, which struck down part of the Voting Rights Act, compared with 51 percent who disapprove.