Online Alexander Bickel symposium: How I spent my summer of 1961

Sanford Jay Rosen graduated from Yale Law School in 1962.  He has been a tenured law professor and a senior attorney at national civil rights organizations.  He has been in private practice in San Francisco, California since 1976 and is the Senior Partner at Rosen Bien Galvan & Grunfeld LLP. In his fifty-year career, he has argued five cases at the Supreme Court and briefed scores of others.  His most recent appellate argument was in the Federal Circuit in Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2012).  As a trial and appellate lawyer, he successfully represented the victims of the May 4, 1970 shootings by Ohio National Guard troops at Kent State University, during which four students were killed and nine were wounded.

It is trite but true to say “you had to be there” to understand what was going on in 1962 when The Least Dangerous Branch (“TLDB”) was first published.  Overt race, gender, disability, and age discrimination and homophobia were rife in America.  First Amendment rights were in their infancy, government intrusion into our private lives was rampant, and criminal defendants and suspects had few due process or other constitutional protections.

Yale Law School

 From 1959 to 1962, I was studying at Yale Law School.  It was an exciting time.  Civil rights advocates, including many of my professors, were riding the rising tide of the Warren Court’s remapping of constitutional rights.  Brown v. Board of Education I & II (1954-55) was the law of the land. Government-mandated racial segregation was on the run; the reapportionment decisions were soon to come; and epic right to privacy, First Amendment, and procedural due process decisions were on the horizon.

Fueled by controversy over Brown, leading constitutional scholars were mooting the limits of judicial review.  Here I mention only three in addition to Alexander Bickel.  In 1959, Herbert Wechsler essentially started the debate with an article in the Harvard Law Review, Toward Neutral Principles of Constitutional Law.  It was a frontal attack on the Court’s reasoning in Brown and its reliance on the Equal Protection Clause as being “unprincipled.”  That year, Louis Pollak countered with an article in the University of Pennsylvania Law Review, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler.  The next year, Charles L. Black, Jr. countered Wechsler with an article in the Yale Law Journal, The Lawfulness of the Segregation Decisions, drawing some on his experience as a Southerner.  Bickel joined in with his 1961 article in the Harvard Law Review, “The Passive Virtues,” and with TLDB.

All four authors were products of the Great Depression and World War II.  All but Pollak spent most of their careers as academics, but each had practical experience.  Wechsler was an Assistant Attorney General of the United States during World War II and an assistant to judges on the Nuremberg War Crimes tribunal before returning to the Columbia Law faculty.  Pollak and Black were members of the brain trust that worked with the NAACP Legal Defense and Educational Fund (“LDF”) on Brown and its progeny.  Pollak served in the army in World War II and for a decade had several law jobs before teaching at Yale.  (Later he became a federal district judge.)  Black was born and educated through college and a master’s degree in Texas.  He served in the army air force in World War II, and spent a brief time at a Wall Street law firm, before teaching at Columbia and then Yale.  Bickel escaped the Holocaust by emigrating as a child to the United States from Romania.  He served in the army during World War II.  After law school, he spent a couple of years working for the State Department before eventually joining the Yale faculty.

The Chessman Case

In the spring of 1961, Alex hired me to inform him about every order and decision in the Caryl Chessman case.  (This was before the Internet or computerized research.)  Chessman had been sentenced to death in California for attempted rape in the course of a kidnapping, a crime that today cannot be the basis for a death sentence.  Chessman exhausted every avenue of relief for more than eleven years.  Pat Brown, the Governor of California and an avid death penalty opponent, did not commute Chessman’s sentence.  Chessman died in San Quentin’s gas chamber on May 2, 1960.

In making the assignment, Alex shared his belief that executing Chessman more than eleven years after his conviction was cruel and unusual punishment, because the legal system had allowed so much time to pass.  Alex also volunteered that such a decision by the Supreme Court would have been an appropriate first step toward prohibition of capital punishment.

I turned in my memorandum – more than one hundred legal-sized (8 × 14) pages –in mid-summer.  Alex boiled it down to a few rhetorical questions in a single paragraph on pages 86–87, and his answers on pages 242-43.  My research had not altered Alex’s view that the long delay between Chessman’s conviction and execution should have made his execution unconstitutional.  There was no need to moot the many defects in the process, or the fact that Chessman’s offense may no longer have been capital.  Alex was exceedingly disappointed that the Court had missed this signal opportunity to drive the Eighth Amendment toward abolition of capital punishment.

Working with the NAACP Legal Defense & Educational Fund

For the rest of the summer of 1961 I worked at the NAACP Legal Defense and Educational Fund, Inc. (“LDF”), then headed by Thurgood Marshall, who was soon to be appointed Solicitor General of the United States.  Charlie Black, with whom I had taken basic constitutional law as a first year, also spent that summer writing briefs at the LDF.

I worked on just two LDF cases that summer; both for Jack Greenberg, who would succeed Thurgood Marshall as head of the LDF; both assignments pushed existing bounds of constitutional rights; both implicated subjects to be discussed in TLDB.

My first assignment was in Hamilton v. Alabama (1961), a death penalty right-to-counsel precursor to Gideon v. Wainwright (1963).  I prepared an appendix identifying all U.S. jurisdictions that mandated a right to counsel at arraignments and all that did not.  Jack instructed me that evolving standards of “due process” could be illuminated by what the states and other U.S. jurisdictions did.  I thought about that project, and the “be careful of what you wish for” principle, when I read Chief Justice Roberts’s dissent in Miller v. Alabama (2012), in which he contended that sentencing minors tried as adults to life imprisonment could not be “unusual” punishment because a majority of the states allow it.

My second assignment involved the efforts of Louisiana’s Orleans Parish avoid desegregation by closing public schools.  I wrote a supplemental brief presenting an historic argument that Louisiana was constitutionally required to operate public schools.  I researched the Articles of Confederation, the Northwest Ordinance, the Constitution, the Civil War constitutional amendments, the requirements for readmission of Confederate states to the Union, and the Homestead Act.  The court did not bite on my argument, but ordered the schools re-opened. I wonder what Alex would have thought of my brief.  While clerking for Justice Frankfurter, he had worked on a memorandum that was instrumental in getting Brown I reset for oral argument on the historic intent of the Framers of the Fourteenth Amendment.

In the summer of 1961, James Nabrit III, who became Jack Greenberg’s second in command at the LDF, talked me out of writing my major third-year paper on legal strategies  for dismantling de facto school segregation in the North.  Alex likely would have agreed that I would have been mining a dry hole, as the Supreme Court later confirmed in Milliken v. Bradley (1974) and Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007).

Bickel the professor

During the fall 1961 semester, I was Charlie Black’s “reader” (grader) for his undergraduate Constitutional Law course.  During the spring 1962 semester, I took Alex’s Constitutional Law II course.

Many believed Alex and Charlie were rivals in the arena of judicial review jurisprudence.  Yet as Charlie observed to me sometime in 1961-1962, they really were not very far apart, at least then.  Alex appears to have agreed.  (See TLDB at 29, 69, 93-27, 129, 240-241.)

Alex’s advanced Constitutional Law course was a laboratory for some of the ideas he recorded in TLDB.  The class was crowded with third-year and graduate students, many of whom became professors.  We worked on cutting-edge issues involving the War and Foreign Affairs powers, and reapportionment and redistricting, which were percolating through the courts.  We explored the Article III and prudential limitations on judicial review that underlay the essential themes of TLDB: case and controversy; standing; ripeness; mootness; desuetude (of statutes); and the political question doctrine.

Alex was a master of a particularly acerbic and confrontational Socratic method.  Once I was the first Alex put on the hot seat.  He gave us a hypothetical statute implicating the Foreign Affairs powers and asked how I would apply it to a hypothetical fact situation.  I said: “First, I would read the statute to figure out its scope and if it applied.”  Alex said: “It is opaque.”  I said I would look for court decisions interpreting or applying the statute.  Alex said: “There are none.”  I said: “I would review the legislative history.”  Alex said: “There is none.”  (By now I was drenched with sweat.)  I said I would look for any glosses on the statute, or pertinent rules or regulations issued by any agency or official charged with implementing or enforcing it.  He said: “There are none.”  Finally, I said I would look for other statutes, rules or regulations or court decisions that provided analogies.  Alex abruptly called on another student who obliged him by jumping to reliance on the United Nations Charter and the Declaration of Human Rights, enabling Alex to instruct us further on the avoidance doctrine and gradualism.

Many recent opinions by the Justices (some of whom claim Alex’s mantle) appear at least to my eye to ignore Alex’s over-arching direction that the courts should “avoid” sweeping constitutional pronouncements where possible.

Changing the world

In TLDB, Alex concluded that the Court had rightly declared de jure school segregation unconstitutional under the Equal Protection Clause, albeit foreseeing problems that would plague implementation.  He also commended the government for arguing and the Court for directing “all deliberate speed” in Brown II, rather than immediate desegregation.  However, Alex did not countenance Southern “massive resistance,” or slow-balling desegregation forever.  (See, for example, Bickel, Politics and the Warren Court (1965)).

In 1962-63, I clerked for Simon E. Sobeloff, then the Fourth Circuit’s chief judge.   As  Solicitor General he had argued for “all deliberate speed” in Brown II.  When I clerked, the courts of appeals were becoming increasingly impatient with the pace of compliance with Brown.  Symbolically, the nomenclature for implementing Brown was shifting from “desegregation” to “integration.”  Toward the end of my clerkship, Griffin v. County School Board of Prince Edward County (Va.) passed through the Fourth Circuit, on the way to the Supreme Court, which held that federal courts could order the reopening of public schools closed to evade integration.

Notwithstanding his substantial concerns (see Bickel, The Supreme Court and the Idea of Progress (1978)), I doubt Alex ever disagreed that the Warren Court kick-started the political process often leading to positive evolution of American society, culture and governance.  (See Bickel, Politics and the Warren Court (1965)).

Despite recent retrograde developments in constitutional law, due to the legal and political processes loosed by Brown, most forms of de jure and overt race, gender, disability, and age discrimination are illegal.  Gay rights are emerging, and government generally is excluded from our bedrooms.  Myriad constitutional protections are embedded in our criminal processes, many even for enemy combatants.  First Amendment protections have grown, albeit sometimes in unexpected ways.  (See, for example, the Court’s decision in Citizens United. v. FEC (2010)).  With notable exceptions, even the Court’s conservative Justices frequently agree with their liberal colleagues about protecting or even extending constitutional rights.

Some years ago, my two youngest children asked me what it was like when my late wife and I graduated from college and law school in the late 1950s and the 1960s.  I answered:  “We thought we could change the world.”  They responded:  “And you did.”