The Supreme Court

Sam Thompson, a Negro handyman, was in a Louisville café waiting for a bus. Putting a dime in the jukebox, he began to shuffle to the music. Two policemen promptly arrested him for loitering. When Thompson protested, they added a charge of resisting arrest. He was convicted on both counts.

A Louisville lawyer took Sam Thompson's case all the way up to the Supreme Court on the claim that his client had been deprived of his rights under the Fourteenth Amendment to the Constitution: "Nor shall any state deprive any person of life, liberty or property, without due process of law."

On a Monday in January 1960, oral arguments were heard in the high-ceilinged courtroom in Washington. The nine Justices appeared from openings in the red draperies behind the bench--three on the left, three on the right and three in the middle, led by the Chief Justice. They stood in their places as the Crier proclaimed: "Oyez, oyez, oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Court."

Chief Justice Earl Warren set the tone of the questioning as he asked the counsel for the City of Louisville. "Do you really put a man in jail for arguing with a police officer?"

"That's what happened in this case, your Honor."

"When," asked Justice William Brennan, "does an argument become disorderly conduct?"

"Any argument," said the lawyer, "tends to lead to disorder."

"You're making an argument now, aren't you?" Brennan said sharply. "Do you see any signs of disorder?"

Ten weeks later, Justice Hugo L. Black delivered the unanimous decision of the Court, reversing the convictions of Sam Thompson: "There simply is no semblance of evidence to support the charge of loitering. The charge of disorderly conduct for arguing with the police was without legal foundation."

The Thompson case did not establish any new legal principle. Its admonishment to police forces throughout the country to discontinue their use of disorderly conduct and loitering statutes against individuals who, though breaking no law, are considered nuisances to the community merely confirmed the illegality of these practices. What was most significant about this case was that the Court bothered to decide it at all. The fine of ten dollars could have been paid thousands of times over by the money, time and effort expended to review it. Why the Supreme Court accepted this seemingly trivial case is best explained in an opinion (continued on page 156) Supreme Court (continued from page 143) of Justice Black, written 25 years prior to the Thompson decision:

Under our constitutional system, courts stand aganist any winds that blow as havens of refuge for those who might otherwise suffer because they are helpness, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.... No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield [due process of law] deliberately planned and inscribed for the benefit of every human being subject to our Constitution--of whatever race, creed or persuasion.

This philosophy has so pervaded Supreme Court decisions in recent years that the protection of the constitutional civil rights and civil liberties of the individual--no matter how poor he is or how unorthodox his beliefs--can accurately be described as the most important business of the Court. Because of the Warren Court's determination to give real meaning and effect to the commands of the Constitution and the Bill of Rights, no Court has had such a profound impact on the lives of millions of Americans since the era of Chief Justice John Marshall, from 1801 to 1835. The Court has delivered decisions bearing on the rights of Negroes, Communists, indigent defendants and nonconformists refusing to sign loyalty oaths. It has prevented the states from admitting illegally seized evidence into trials, has excluded coerced confessions from cases heard in state courts, and has taken major steps toward creating national uniform standards of fairness in police dealings with those accused of crimes.

Predictably, in protecting the rights of the individual, the Court has stirred bitter controversy. Right-wing groups clamorously call for the impeachment of Chief Justice Warren, and in some of their strongholds there can be seen automobile bumper stickers demanding: Fluoridate Earl Warren. Nor has all the criticism of the Court come from such zealots as those of the John Birch Society. Southern Congressmen have attacked the Court's ruling ending the compulsory segregation of Negro children in the public schools--along with other Court rulings on civil rights. Congressman George W. Andrews of Alabama has solemnly proclaimed: "I fear more the Supreme Court of the United States as presently constituted than I do Russia." Even the American Bar Association has opposed the Court's decisions upholding the rights of Communists, and a 1958 conference of the chief justices of the state courts censured the Warren Court for not exercising what they regarded as sufficient self-restraint.

In 1962, a torrent of abuse was directed at the Court for its decision that the New York State Board of Regents had no right to draw up a 22-word nondenominational prayer for use in the public schools. "Under [the First] Amendment's prohibition against governmental establishment of religion," said Justice Black, speaking for the majority, "government in this country, be it state or Federal, is without power to prescribe by law any particular form of prayer ..."

Returning to his campaign against the Court, Congressman Andrews new roared: "They put the Negroes in the schools and now they've driven God out."

Also in opposition to the Court was an eighth-grader in a Virginia public school. "It's my opinion," she wrote in a letter to a Washington newspaper, "that the majority rules, not the minority. We have discussed the school prayer law in class today. It may be unconstitutional, so why doesn't Congress change it? Because I was raised that if two people were against me, I lost out. There are millions and millions of people who are religious, and just a few are atheists.... Keep in mind, the majority rules."

The girl's concern drives to the core of the American system of government and the function in that system of the Constitution and the Supreme Court. Is it not axiomatic that in a democracy the majority rules? And if the majority wants prayers in its schools, Communists in prison, police allowed to do their work "unshackled" by Court decisions, why cannot the majority have its way?

The answer lies in the very nature and purpose of a written Constitution. A Constitution is deliberately adopted to control and limit the power of the majority and to set out certain basic rights that cannot be changed by majority whim, that, in the words of the late Justice Robert Jackson, "may not be submitted to vote; they depend on the outcome of no elections."

From the start, the necessity for safeguarding the essential rights of the individual against the desires, the convenience or even the needs of a central Government pervaded the deliberations of the framers of the Constitution. The concept that each citizen had certain inalienable rights grew in part from a belief that man, being created in the image of God, is thereby imbued with innate worth and dignity. "Our liberty," John Milton wrote in the 17th Century, "is not Caesar's. It is a blessing we have received from God himself. It is what we are born to. To lay this down at Caesar's feet, which we derive not from him, which we are not beholden to him for, were an unworthy action, and a degrading of our very nature." John Locke, the great English philosopher, said, "The end of law is not to abolish or restrain, but to preserve and enlarge freedom."

While Milton, Locke and other thinkers of the time recognized the essential relationship between law and liberty, the concept had never been translated into political actuality, notwithstanding repeated efforts by various forces. Perhaps the most significant of these attempts was made by a group called the Levelers. During an English civil war in the middle of the 17th Century, at a time when King and Parliament struggled for supremacy, the Levelers maintained that neither was supreme--that true supremacy, as well as popular rights, was not conferred on the people but was inherent in the people themselves. A government could exercise only such powers as the people might choose to delegate to it.

The Leveler's principles were to significantly shape American ideas and institutions. The group believed, for example, that every man--regardless of his station or his wealth-- was entitled to a voice in the government. They also believed that free speech was the best way to arrive at truth and sound public policy. And having witnessed the bitterness and bloodshed that come from state interference with religion--Protestants persecuting Catholics, and voice versa--they demanded absolute separation of church and state.

To ensure the rights of the individual, the Levelers suggested that all the limitations on the powers of government should be set down in a fundamental charter, An Agreement of the People, to be signed by every Englishman.

The Levelers' idea of a written constitution, however, was not adopted in England. Moreover, in the century during which America was settled by Englishmen, governmental restrictions on the individual at home intensified. Under Queen Elizabeth, it had become high treason to call her a tyrant and to even imagine bodily harm to her. It was no, longer necessary for the state to prove that an overt act had been committed; mere expression of hostile opinion could lead to death. Also under Elizabeth, restrictions on the press were greatly increased. In a country in which church and state were united, a series of heresy, felony and treason statutes were directed against publishers and writers.

When the American Constitution was proposed and adopted, the inhabitants of this country included many people who, by reason of personal experience or beliefs, or through close kinship with (continued on page 238)Supreme Court(continued from page 156)others who had fled England in order to be able to live and worship as they chose, were acutely aware of the need to protect the rights of the individual. The decision to have a written Constitution enumerating the powers of the Government was the immediate outgrowth of this concern. But even then, those so closely familiar with the tyranny an all-powerful government can exercise were not satisfied. Accordingly, after the Constitution was drawn in 1787. there was a great outcry that more safeguards for the individual had to be added. By 1791, a Bill of Rights--the first ten amendments to the Constitution--had been promulgated and ratified. They placed specific limitations on the new Federal Government, leaving to the people their inalienable rights--among them, freedom of speech, press, religion and assembly; the right to trial by jury; the right to be secure against unreasonable searches and seizures; the right not to be compelled to be a witness against oneself; the right not to be deprived of life, liberty or property without due process of law; the right to speedy and public trial; the right to confront witnesses against oneself; the right to counsel; the right to be secure against excessive bail and cruel and unusual punishments.

Thus, at the very beginning of this country's constitutional history, the limitations on majority rule that were to trouble an eighth-grader in Virginia in 1962 had already been clarified in the minds of the framers of the Constitution. In 1788, James Madison wrote:

Wherever the real power in a Government lies, there is the danger of oppression. In our Government, the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.

Since a Constitution is not self-enforcing, a detached and impartial body--the Supreme Court--was entrusted as its guardian and interpreter. At first the Court was hesitant to test its powers. It was so insignificant at its start that when the new capitol in Washington was constructed, no place was made for the Court. It had to meet in a basement room of the Senate. The Court was so lightly regarded in those early days that Patrick Henry and Alexander Hamilton refused to accept appointments to it.

But beginning in 1801, under John Marshall, the Court fully established its right to review and, if necessary, strike down acts of Congress and of state legislatures that violated the Constitution. This power, coupled with the independence of life tenure (Supreme Court judges can be removed only by impeachment, and this has never happened), makes the United States Supreme Court unique among courts anywhere in the world. But with its unparalleled authority comes an enormous responsibility. "We are very quiet here," said Justice Oliver Wendell Holmes a half century ago, "but it is the quiet of a storm center.... Doubts are expressed that go to our very being."

There is, furthermore, the burden of exceedingly difficult and detailed work. As Justice Brennan has explained in Alan Westin's An Autobiography of the Supreme Court, "Each Justice, unless he disqualifies himself in a particular case, passes on every piece of business coming to the Court. The Court does not function by means of committees or panels. Each Justice passes on each petition, each item, no matter how drawn, in longhand, by typewriter or on a press. There is one uniform rule: Judging is not delegated. Each Justice studies each case in sufficient detail to resolve the question for himself.... The process can be a lonely, troubling experience for fallible human beings conscious that their best may not be adequate to the challenge."

"The fact is," Justice Jackson underlined, "that the Court functions less as one deliberative body than as nine, each Justice working largely in isolation except as he chooses to seek consultation with others. These working methods tend to cultivate a highly individualistic rather than a group viewpoint."

And being individualistic, a Justice on occasion may nettle one of his colleagues. In the 1930s, Justice James C. McReynolds, rebuked because he was late for a conference, snapped, "Tell Mr. Chief Justice Hughes that Mr. Justice McReynolds does not work for him." And Justice William O. Douglas on one occasion publicly termed a majority opinion of his brethren "smart-alecky."

The divisions within the Court are usually revealed publicly only in the clash of written opinions. But once in a great while, the bench itself is the scene of a break in judicial demeanor. In 1961, Justice Frankfurter was on the losing end of a 5--4 decision granting a new trial--his fourth--to a man who had been convicted of murder. The majority ruled that the convicted man's last trial had been prejudiced because of improper questioning by the prosecution. Frankfurter had written a dissenting opinion in which he claimed the prosecution's mistake had been a "harmless error." From the bench, on the day the Court announced its decision, Frankfurter stopped reading his dissent and improvised a caustic denunciation of his colleagues in the majority for "indefensible judicial nit-picking."

Chief Justice Warren reddened in anger, glared at Frankfurter and said, barely containing his fury, "As I understand it, the purpose of reporting an opinion in the Court is to inform the public and not for the purpose of degrading this Court."

Despite these occasional revelations of human frailty, the nine Justices, sitting in public in the huge marble temple that is the Supreme Court building, inspire awe. In the courtroom, with its tall Ionic columns, medallioned ceiling and friezes carved high on the walls, the impact of austere pomp has caused a few lawyers appearing before the Court for the first time to faint dead away.

Yet these Justices are decidedly human men, and the interplay of their differing backgrounds and temperaments affects what becomes the law of the land. Even within the two major wings of the Court--the liberal (more accurately, libertarian) and the conservative--there are substantial philosophical differences among the members. Indeed, some Justices cannot easily be placed in either wing, which explains why a real understanding of the decisions of the Court must go beyond convenient labels to an analysis of the individual attitudes and beliefs of each man.

In the present Court, 75-year-old Earl Warren, appointed Chief Justice of the United States by President Eisenhower in 1953, is a courteous, remarkably considerate, affable man who is, however, essentially serious and an extremely hard worker. Prudent, he likes to quote Lincoln, "I am a slow walker but I never walk backward."

From the start of his career as a public prosecutor in California through his ten highly popular years as governor of that state, Warren has always been concerned with justice. "He never let us sneak up on a fellow's blind side," his chief investigator in the early years has said. And Warren has also been persistently troubled by the responsibilities of power. Recalling his tenure as a district attorney, he says, "I never heard a jury bring in a verdict of guilty but what I felt sick at the pit of my stomach."

While usually on the libertarian side of the Court, Warren has become increasingly conservative in obscenity cases, which sometimes rouse strong feelings in him. Once, shaking a copy of an allegedly obscene book, he told a colleague, "If anyone showed that book to my daughters, I'd have strangled him with my bare hands."

Warren is not a legal scholar; his judicial philosophy is characterized more by a deep sense of humanity than by adherence to doctrine or precedent. One day a lawyer stoutly maintained that his client's legal position was supported by a series of previous rulings by the Court. "Yes," said Warren, leaning forward, "but is it fair?" Added to his sense of fair play is a sharp insight into the real meaning of Governmental actions, which enables him to strike immediately at the heart of an argument.

The oldest member of the Court, in age and length of service, is 80-year-old Hugo L. Black of Alabama, an expert trial lawyer who had gone on to become one of the most powerful members of the United States Senate during the early New Deal days. Black was appointed to the Court by Franklin D. Roosevelt in 1937. Fond of describing himself as "a rather backward country fellow," Black has less formal education but reads more widely than any other member of the Court. A wiry, energetic man, he plays tennis nearly every day, sometimes four hours at a stretch.

Regarded as the chief philosopher of the Warren Court, Black has long been its leading advocate of full constitutional protection for civil liberties and rights. "No other Justice in the past 25 years," says Gerald Gunther, professor of law at Stanford University, "has cared more, worked harder and done more to persuade his colleagues to accept his constitutional philosophy." And no Justice in the entire history of the Court has lived to see more of his dissents become majority views.

The persuasiveness of Black's judicial philosophy lies largely in its simplicity. Fundamentally, his position is that the Constitution is to be enforced according to its precise terms--no more and no less. On free-speech questions, he often quotes the language of the First Amendment ("Congress shall make no law ... abridging the freedom of speech"), and says, "By 'no law,' I understand the First Amendment to mean no law." Using the same literal approach, Black concludes that the separation of church and state; the rights of free press, petition and assembly; the privileges against self-incrimination; the right of confrontation; the right to the assistance of counsel and all other rights similarly stated in categorical terms in the Constitution are "absolute"; they must be observed by the Government and enforced by the Court under all circumstances.

Because he believes that the very minimum requirements of the Constitution have yet to be completely applied to American life. Black is often labeled a "judicial activist." Black rejects the label, whether it be applied approvingly by those who think the Court should actively develop solutions to all social problems or disparagingly by those who think the Court should, in the name of judicial restraint, ignore all but the most flagrant of constitutional violations. To Black, the Court has no power to impose social solutions beyond its duty to protect the particular rights specified in the Constitution itself. Conversely, he believes the Court has no more right to restrain itself from enforcing these constitutional provisions--no matter how extraordinary the consequences--than it would have to invent provisions not specified by the founding fathers. Hence, Black regards himself as a legal reactionary--a defender of the Constitution as it was originally written and intended.

Usually in judicial agreement with Black is 68-year-old William O. Douglas, one of the most brilliant men ever to sit on the Supreme Court. Douglas began his career as a law professor and later was chairman of the Securities and Exchange Commission before being appointed to the Court by President Roosevelt in 1939. A craggily handsome, restless man. Douglas has hiked in the Himalayas, climbed mountains in Iran and traveled widely in Asia.

Douglas is intensely interested in geography, economics, foreign affairs and many other subjects to which he devotes a considerable amount of time. Probably the most quick-witted of the Justices on the bench, Douglas sometimes appears distracted from the business at hand as he scribbles, seemingly aimlessly, on a pad. But he will suddenly look up and direct a sharp, penetrating question.

Contentious, Douglas believes that contention is at the core of self-government by free men. "A function of free speech under our system of government." he has declared, "is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Joining Chief Justice Warren and Justices Black and Douglas in the libertarian wing of the Court is Justice William J. Brennan, 60, who had seven years' experience as a judge in the New Jersey courts before his appointment to the Court in 1956 by President Eisenhower. The son of an Irish immigrant who became a labor leader and city commissioner of Newark, Brennan is informal in manner and proud, as he puts it, of the opportunity to "sit here and think hard day after day about this strangely unwieldy yet magnificent system under which we Americans live."

In judicial philosophy, Brennan is closer to Warren than to Black. He has never subscribed to Black's literal approach to the Constitution, preferring to decide cases on broader considerations. This sometimes leads Brennan to a more libertarian position than Black's, but occasionally, as in obscenity cases, it has precisely the opposite effect.

Since the retirement of the late Justice Felix Frankfurter, in 1962, the intellectual leader of the Court's conservative wing has been 67-year-old John Marshall Harlan, grandson of the 19th Century Justice of the same name. Harlan was appointed by President Eisenhower in 1955 after a distinguished career as a Wall Street lawyer and a Federal judge.

Although not as persuasive as the intense Justice Frankfurter had been (Harlan is sometimes referred to as "Frankfurter without the mustard"), he is extremely conscientious and thoroughly respected by his colleagues on the bench. A true legal conservative, Harlan believes the Court must be cautious in the range and extent of its decisions, regardless of the literal language of the Constitution. Accordingly, he balances every judicial claim against what he regards as the legitimate interests of society. Under this balancing test, Harlan would place fewer limitations on Government than would any other Justice in modern times.

Often aligned with Harlan is Tom Clark, 66, who had been a district attorney in Texas and was Attorney General of the United States when chosen for the Court by President Truman in 1949. Clark is a devotee of bow ties and homespun jokes and his office is festooned with mooseheads. Clark's easygoing manner belies a firm, almost rigidly pro-Government attitude in subversion, obscenity and criminal cases, in which he frequently cites FBI Chief J. Edgar Hoover as his authority. Consequently, Clark is generally considered to be the most conservative Justice on the Court. But his conservatism is primarily related to the interests of the Federal Government. Thus, Clark joined the libertarian wing of the Court in the reapportionment decisions: he wrote the majority opinion forbidding the states from using illegally obtained evidence; and he has voted consistently for Negro rights. In antitrust cases, where the Federal Government's position coincides with the liberal philosophy, Clark urges vigorous enforcement of the Sherman Act.

With Clark much of the time is 49-year-old Byron "Whizzer" White, who was placed on the Court by President Kennedy in 1962. A former Rhodes scholar, successful corporation lawyer and Deputy Attorney General of the United States, White is a New Frontier pragmatist who prefers to decide cases on narrow legal grounds. By contrast with the often vivid, boldly written decisions of Black and Douglas, White's opinions are dry and highly technical. White believes the rights and liberties of the individual must be balanced against the needs of the Government and, like Clark, he rarely votes against the Government in free-speech, subversion or criminal cases. The approach of both men may be explained by the fact that they held high positions in the Department of Justice before being appointed to the Supreme Court.

Justice Potter Stewart, 51, an Eisenhower appointee to the Court in 1958, is perhaps the most difficult member of the Court to classify. A former vice mayor of Cincinnati and a Federal judge prior to his appointment, Stewart is a staunch conservative ally of Justice Harlan on economic matters; and while a philosophical conservative, in the civil liberties area he often sides with the libertarian wing if he can justify his vote on some narrower ground than the constitutional right asserted. In obscenity cases, Stewart stands almost as squarely behind the literal language of the Constitution as do Black and Douglas. He dissented in both the Ginzburg and Mishkin cases, when the Court recently upheld obscenity convictions. And in the recent Redmond case, in which the Solicitor General requested that the conviction of a couple who had mailed allegedly obscene photographs be vacated because of Justice Department error, Stewart joined Black and Douglas in saying, "We would reverse this conviction not because it violates the policy of the Justice Department but because it violates the Constitution."

The newest Justice, Abe Fortas, 56, was appointed by President Johnson in 1965. Previously he had had a long career in Government, including four years as Undersecretary of the Interior, after which he became a partner in the Washington law firm of Arnold, Fortas and Porter, as well as a confidant of the President. Although it is much too early to predict with certainty Fortas' ultimate judicial views, it is quite likely that he will align himself with the libertarian wing of the Court. Shortly before his appointment. Fortas said that the Warren Court had served to "awaken the national conscience and act as a catalyst to cause the nation to take action to discharge neglected responsibilities."

To date, Fortas has been generally cautious: In 75 decisions handed down, he departed from the majority only four times. His opinions have dealt mostly with noncontroversial matters, but in an important civil liberties case, it was Fortas who wrote the opinion holding that juveniles must be given protections similar to those accorded adults when they are charged with crimes.

These differing personalities and conflicting judicial philosophies help one understand the Court and its decisions. Beyond these characteristics, the kinds of cases the Court chooses to take can be as important as the decisions it makes. Historically, the Court has gone through roughly two periods of quite different preoccupations. "One might suggest," Leo Pfeffer, a distinguished lawyer and student of the Court, wrote in 1961, "that there have been in reality two Supreme Courts. The first, which came to an end in 1936, had as its architect John Marshall, and was fashioned by him to be the supreme protector of property rights and to safeguard commerce, industry and finance from hostile legislatures, state and Federal. The second Court, which has developed during the past quarter century, has abandoned this role and has become the nation's guardian of the liberties of its people."

Why did the Court come so relatively late to focus on civil rights and liberties? Justice Brennan has suggested that "in our frontier days not so much problems of individual liberty as problems of the respective domains of Federal and state power incident to territorial expansion and economic growth came to the surface. Issues of individual liberty and the relationship of the citizen to his Government waited in the wings pending the events of this century that brought them to the fore." Those events have included America's changing from a predominantly agricultural and rural nation to one that is now overwhelmingly industrial and urban. And as population grew in numbers and in urban density, so did Governmental activities affecting millions of people in myriad ways, limiting and regulating individual behavior.

In sum, the modern crisis of individual liberty throughout Western civilization has been felt with particular keenness in America, where the inevitable growth of powerful, systematized Government with expanding police powers is so often confronted by the principles of individual liberty embedded in the Constitution.

The changing directions of the Supreme Court as a guardian of civil liberties and rights--before and during Earl Warren's tenure as Chief Justice--can be seen by exploring a number of key decisions. Here a distinction should be made between civil rights and civil liberties, and this has been done with clarity by President Kennedy, as quoted in Edward Bennett Williams' book One Man's Freedom:

By civil rights we mean those claims which the citizen has to the affirmative assistance of government. In an age which insistently and properly demands that government secure the weak from needless dread and needless misery, the catalog of civil rights is never closed. The obligation of government in the area of civil rights is never wholly discharged.

By civil liberties, I mean an individual's immunity from governmental oppression. A society which respects civil liberty realizes that the freedom of its people is built, in large part, upon their privacy. The Bill of Rights, in the eyes of its framers, was a catalog of immunities, not a schedule of claims. It was, in other words, a Bill of Liberties. The immunities defined in this Bill of Liberties were set forth in order that the promise of individual freedom might be made explicit. The framers dreamed that if their hope were codified man's energies of mind and spirit might be released from fear.

When civil rights are seen as claims and civil liberties as immunities, the government's differing responsibilities become clear. For the security of rights the energy of government is essential. For the security of liberty restraint is indispensable.

Perhaps the most widely debated provision of the United States Constitution is the First Amendment, which provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The recurring problem in dealing with the "establishment of religion" clause has been more in the application of accepted principles than in disagreement about the principles themselves. In Everson us. Board of Education (1947), the Court agreed on a definition of this clause that has been accepted ever since:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and state."

Yet, despite their agreement on the definition, the members of the Court have repeatedly split on the application of the Establishment Clause. In Everson itself, a majority of five voted to uphold the power of states to provide school buses for parochial schools, against vigorous dissents claiming such a law was flatly contrary to the majority's own announced principles. Justice Jackson remarked that "The case which irresistibly comes to mind as the most fitting precedent is that of Julia, who, according to Byron's reports, "whispering 'I will ne'er consent';--consented."

Later, in McCollum us. Board of Education (1948), the Court decided that the Establishment Clause prohibits the use of school facilities for religious classes; but then, in Zorach vs. Clauson (1952), it held that the clause does not prohibit the release of students from public schools for religious instruction. Again Jackson vigorously denounced the majority: "Today's judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law."

Prior to Everson, the Court had held that the Free Execrcise Clause did not confer a right upon Mormons to practice polygamy contrary to law; but after denying objections by members of Jehovah's Witnesses to the flag salute, it reversed itself in one of its most often-quoted decisions (West Virginia State Board of Education us. Barnette, 1943) and held that such a ceremony could not be required of those with religious objections. Justice Jackson wrote for the majority:

To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the state as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

In recent years, the controversy over the religious clauses has not been within the Court itself, but between the Court and large segments of the public. The Justices have been nearly unanimous in holding that the Regents' Prayer, the Lord's Prayer and Bible readings in public schools, as religious exercises, are violations of the Establishment Clause; but the public outcry has brought the First Amendment perilously close to change for the first time since it was written. While most of the Court's critics grant that there is a conflict between the religious exercises banned and the Establishment Clause, they nonetheless insist that the invasion is petty and should be ignored. The Court's answer, however, is taken directly from James Madison, the author of the First Amendment:

[It] is proper to take alarm at the first experiment on our liberties...Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

Generating nearly as much public controversy, and considerably less agreement among the members of the Court, are the free-speech provisions of the First Amendment. The Court's enforcement of these provisions has differed from time to time, but in virtually all cases, formulas of varying permissiveness have been devised to limit the amendment's full effect. One of the best known of these formulas, the "clear and present danger" test, was developed by Justice Oliver Wendell Holmes in Schenck vs. United Stales (1919). "The question in every case," said Holmes, "is whether the words used are used in such circum-stances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." Although this test had the effect of restricting full freedom of speech, it was designed by Holmes (and Justice Louis Brandeis, who helped popularize it) to extend the protection of the First Amendment beyond its previous interpretations. Justice Brandies said:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the false-hood and fallacies, to avert the evil by the processes of education, the remedy is more speech, not enforced silence. Only an emergency can justify repression...

During the McCarthy era, the freedoms inherent in the "clear and present danger" concept were sharply curtailed. The Smith Act, passed by Congress in 1940, had made it a criminal act to "teach or advocate" the overthrow of any government in the United States by force and violence. Under it, ten leaders of the American Communist Party were indicted, tried and convicted. In 1951, their case--Dennis vs. United States--came before the Supreme Court. The Court, with Chief Justice Fred M. Vinson writing the majority opinion, decided by a vote of seven to two that the Smith Act was constitutionally valid.

In Dennis, Vinson admitted that no clear and present danger of overthrow of the Government existed. However, in his view, the "clear and present danger" test was not a limitation upon legislative action, but a judicial recognition that free speech "is not an unlimited, unqualified right," and that "the societal value of speech must, on occasion, be subordinated to other values and considerations." On this basis, Vinson concluded that the right of free speech must be "balanced" against the value of self-preservation and that Congress could rightly decide that a situation was serious enough to warrant immediate abridgment of this right.

This "balancing" test of First Amendment freedoms was followed by a series of decisions upholding the power of the Government to punish and otherwise penalize Communists, suspected Communists, those who associated with Communists or suspected Communists, and even those who, though admittedly unconnected with communism, refused to cooperate with state and Federal investigative efforts in this area. In 1960, Willard Uphaus, a doctor of theology and an avowed pacifist, was given a one-year prison sentence for refusing to tell the State of New Hampshire the names of people who had attended his summer camp (many of them suspected Communists). His sentence was upheld. And in 1961, the Court upheld an Illinois decision by which George Anastaplo was denied admission to practice law in Illinois because he refused to answer the Bar Committee's questions concerning his beliefs in God and communism.

In the same year, a majority of the Court upheld the Subversive Activities Control Act of 1950, requiring that the Communist Party register with the Government under an act that would have subjected both the Party and its members to severe disabilities. In Barenblalt vs. United States, Braden vs. United States and Wilkinson vs. United States (1960 and 1961), the Court upheld convictions for contempt of the House Un American Activities Committee of three persons who refused to answer questions about suspected Communist affiliations of themselves and others, on the ground that any First Amendment rights taken away had to be balanced against the Committee's need for information germane to its legislative function.

Throughout the ascendancy of the "balancing" test, the libertarian wing of the Court, under the leadership of Black and Douglas, was in persistent and vigorous dissent. In Dennis, Black said:

Undoubtedly, a governmental policy of unlettered communication of ideas does entail dangers. To the founders of this nation, however, the benefits derived from free expression were worth the risk. They embodied this philosophy in the First Amendment's command that "Congress shall make no law...abridging the freedom of speech, or of the press..."

Black added, "Public opinion being what it now is, few will protest the conviction of those Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society."

In the Dennis case, only Douglas joined Black in this view of the First Amendment. Subsequently, calmer times did arrive, but, more significant, Warren and Brennan were added to the Court and a more libertarian trend developed. The Court, however, is still split in certain areas involving the rights of Communists. In 1964, it decided that Congress had exceeded its power in withholding passports from all American Communists, because that law penalized a person for his association rather than for his acts. But Justice Clark, joined by Harlan and White in angry dissent, asked rhetorically, "Which Communist Party member is worthy of trust? Since the Party is a secret, conspiratorial organization subject to rigid discipline by Moscow, the Congress merely determined that it was not wise to take the risk which foreign travel by Communists entailed." The most recent decision of significance in the subversive-speech area occurred in 1965. The Court ruled that the stipulation in the Subversive Activities Control Act requiring individual members of the Communist Party to register with the Federal Government was unconstitutional, since a Communist who did register would thereby be forced to incriminate himself in violation of his Fifth Amendment rights.

The inconsistency of the Court's decisions in so-called subversive-speech cases demonstrates not only that Black and Douglas' literal interpretation of the First Amendment has never achieved majority support but that Holmes' and Brandeis' "clear and present danger" formula is no longer strictly adhered to. It seems likely that as long as the "balancing" test survives, the rights of political and other minorities to preach unpopular doctrines will continue to remain in doubtful status.

The Court's decisions under the First Amendment's guarantee of a free press have, with certain notable exceptions, been more libertarian. In its early cases, the Court dealt principally with freedom from censorship or other prior restraint. In Near us. Minnesota (1931), an attempt to suppress the Saturday Press, a scurrilous anti-Semitic publication, as "malicious, scandalous and defamatory," was declared unconstitutional, but only on the ground that "previous restraint" had been imposed. Wrote Chief Justice Charles Evans Hughes: "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege."

Five years later, the Court broadened the application of the ban against previous restraints when it struck down a heavy tax imposed by the Huey Long political machine on unfriendly newspapers' selling advertising within the state. Justice Sutherland, one of the Court's most conservative members, wrote the unanimous opinion: "The tax here involved is bad not because it takes money from the pockets of the appellees.... It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the Government and the people. To allow it to be fettered is to fetter ourselves."

In 1963, the Court, in a major case, moved toward a much fuller enforcement of the guarantee of a free press. Unanimously it handed down a landmark decision reversing a $500,000 judgment rendered in the Alabama courts in favor of the police commissioner of Montgomery, Alabama, against The New York Times and four Negro clergymen. The newspaper had published a paid political advertisement vehemently critical of the Montgomery police department's treatment of civil rights demonstrators--and not entirely accurate in some of its details. The police commissioner had charged the advertisement had defamed him personally and he was sustained by the Alabama courts.

In this case, the Supreme Court ruled for the first tine that the First Amendment, as incorporated against the states by the Fourteenth Amendment (in Gitlow vs. New York, 1925), restricted the right of public officials to sue for libel. The Constitution, said Justice Brennan, requires "a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on Government and public officials." Only if actual malice could be proved--proof that the criticism was deliberately or recklessly false--could damages be collected.

Characteristically, Justices Black and Douglas urged the Court to go further and give the press an absolute privilege to criticize public officials, without regard to malice. Said Black: "An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.... I regret that the Court has stopped short of this ..."

Despite Black's misgivings, the only significant threat in recent years to journalistic freedom has been in efforts--largely unsuccessful--to restrain the right of news media to comment on events related to a criminal trial. In an early case, Bridges vs. California (1941), the Court held that only if a "clear and present danger" to the administration of justice were shown, could news about court proceedings be suppressed. More recently, however, in the Sheppard case (1966), the Court went even further, holding that the responsibility for ensuring a fair trial rests with law-enforcement officials and with attorneys for both sides. Under this decision, the press remains free to print what it can find out, but the police, prosecution and other officials are mandated--by threat of punishment--not to use the press to create a climate of opinion adverse to the defendant.

While these cases indicate that the Court in recent years has been progressing toward full enforcement of the freedom-of-expression provisions of the First Amendment in many areas, it has seemed to retrogress in the area of "obscene" or "indecent" expression. The Court's concern with Governmental censorship of material dealing with sex commenced less than 20 years ago. Previously, the censors generally had their way in determining what could or could not be read, with only occasional, and largely ineffective, interference from state and lower Federal courts. Accordingly, some of the world's greatest literature was banned as obscene for considerable periods of time in this country.

The first case to come before the Supreme Court, however, involved not a work of great literary value but a "true crime" magazine that allegedly violated a New York statute outlawing "any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports or accounts of criminal deeds, or pictures or stories of deeds of bloodshed, lust or crime."

The Court held, in Winters vs. New York (1948), that the statute was unconstitutionally vague and therefore in violation of the First and Fourteenth Amendments in that it abridged the freedom of the press beyond even "the indecent and obscene, as formerly understood." The Court, however, expressly left open the question of whether clearly defined "indecency" or "obscenity" could be punished.

In 1952, the Court again cited vagueness in striking down a ban against Roberto Rossellini's film The Miracle, which the New York Board of Regents had declared "sacrilegious." And five years later, the Court unanimously held unconstitutional a Michigan law that made it a crime to "publish materials tending to incite minors to violent, or depraved, or immoral acts, manifestly tending to the corruption of the morals of youth." The general reading public cannot be quarantined, said Justice Frankfurter for the Court, "against books not too rugged for grown men and women in order to shield juvenile innocence.... Surely, this is to burn the house to roast the pig."

The same year, however, the Court greatly complicated the obscenity problem by declaring, in Roth vs. United States (1957), that obscenity is not "utterance within the area of protected speech and press." The criteria for determining obscenity, said Justice Brennan, were whether the expression at issue treated sex in a manner appealing to "prurient interest," whether it exceeded contemporary community standards of candor and whether it possessed no "redeeming social value" at all.

It soon became apparent, however, that if the freedom of expression guaranteed by the First Amendment was to receive any effective protection at all under the Roth test, the Court would have to pass upon charges of obscenity on a case-by-case basis. Until 1966, the Court's case-by-case approach was fairly liberal. It had reversed, for example, a New York State ban on a film version of Lady Chatterley's Lover, and had also overturned a unanimous decision by the three judges of the District Court of Appeal of Florida that Henry Miller's Tropic of Cancer was obscene. Indeed, as recently as September 1964, the Court was regarded as so liberal on questions of obscenity that nine leading New York clergymen--Jews, Protestants and Roman Catholics--attacked it for "finding that the Constitution was intended as a guarantee for the dissemination of filth, and a device to deprive the public of the right to protect itself against vile and corrupt publications."

As of March 1966, however, those clergymen were resting somewhat easier. In that month the Court, in a five-to-four decision, unpredictably affirmed the 1963 conviction of Ralph Ginzburg for having mailed three allegedly obscene publications, Eros, The Housewife's Handbook on Selective Promiscuity and the newsletter Liaison.

The startling element in the majority decision in Ginzburg was that the Court did not say that the publications involved were themselves obscene. Rather, the Court adopted a theory of Chief Justice Warren's stated as a minority view in the Roth case, that the critical factor in an obscenity decision is not the material published, but the conduct of its publisher:

It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting ...

The defendants were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the state and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.

In Ginzburg, the majority picked this theory up, and thus created a new and additional criterion for holding expression to be outside the protection of the First Amendment: Now the courts have also to consider the manner in which a publication is advertised and promoted. Justice Brennan, speaking for Warren, Fortas, White and Clark, said: "Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity."

The dissents sharply criticized this holding as novel, inconsistent with the Constitution and naïve. Justice Black, dissenting along with Douglas, Harlan and Stewart, pointed out that the decision not only violates the plain command of the First Amendment, but also makes it "exceedingly dangerous for people to discuss either orally or in writing anything about sex." Douglas also chastised the majority for ignoring the Constitution and added that they apparently did not know what was going on in the world around them: "The use of sex symbols to sell literature, today condemned by the Court, engrafts another exception on First Amendment rights that is as unwarranted as the judge-made exception concerning obscenity. This new exception condemns an advertising technique as old as history. The advertisements of our best magazines are chock-full of thighs, ankles, calves, bosoms, eyes and hair, to draw the potential buyers' attention to lotions, tires, food, liquor, clothing, autos and even insurance policies."

The split in the Court on the Ginzburg case--and the Fanny Hill and Mishkin cases that were decided with it--acutely illustrates the differing legal philosophies among the members of the Supreme Court. To Black and Douglas, and obscenity case presents a purely legal question: Can Congress or the states abridge the freedom of speech or of the press? Both Justices literally interpret the First Amendment and categorically answer no. Black feels so strongly about his position that he will not even read material alleged to be obscene before casting his vote against its censorship. Harlan, one of the most consistently conservative of the Court's nine Justices, nonetheless agrees with Black and Douglas that the First Amendment prohibits Federal censorship (as in Ginzburg), but disagrees that its provisions are equally binding on the states (which explains why he voted to allow censorship in the Fanny Hill and Mishkin cases, both of which involved the states). Stewart does not read the First Amendment literally, but would limit its exceptions in the obscenity area to those that go beyond the pale of ordinary communication--i.e., hard-core pornography, such as stag films and similar underground erotica.

The majority of the Court--Warren, Brennan, White, Clark and Fortas--contend, in effect, that the First Amendment is conditional, that certain utterances are beyond its protection. Thus, in attempting to deal with obscenity as a matter capable of objective measurement, despite the fact that the determination of "prurience," "redeeming social value," "patent offensiveness," "community standards" and "pandering" must of necessity be subjective, the Justices force themselves to study each allegation of obscenity in order to test their personal reactions to it. This is perhaps why the Court is so obviously uncomfortable in deciding obscenity cases. As Thurman Arnold pointed out in a brief to the Supreme Court of Vermont:

The spectacle of a judge poring over the picture of some nude, trying to ascertain the extent to which she arouses prurient interests, and then attempting to write an opinion which explains the difference between that nude and some other nude, has elements of low comedy. Justice is supposed to be a blind Goddess. The task of explaining why the words "sexual relations" are decent and some other word with the same meaning is indecent is not one for which judicial techniques are adapted.

If the Warren Court is uneasy with questions of obscenity, it has been considerably more decisive and precise in dealing with the constitutional rights of persons accused of crime. The Court has, with remarkable consistency, enforced the Bill of Rights in criminal cases--despite an alarmed obbligato of criticism from prosecutors and police officials.

In early decisions, the Court's steps in this area were modest. In the Scottsboro caser (1932), it was ruled that states must provide counsel when the death penalty might be involved, but the Court avoided a literal enforcement of the Sixth Amendment ("In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense"). Indeed, the Court did not even mention it. In the years following the Scottsboro case, the Court also began to deal with the problems of coerced confessions related to the Fifth Amendment ("No person ... shall be compelled in any criminal case to be a witness against himself"), but ruled against only the most blatantly coerced confessions, and again failed to mention the specific constitutional prohibition.

The modern concept of constitutional rights concerning criminal suspects began in 1938 (Johnson vs. Zerbst), when the Court held that the Sixth Amendment's guarantee of counsel must be applied to all Federal cases involving a serious crime. Justice Black wrote the majority opinion:

The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not "still be done." It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.

Progress toward a literal enforcement of the amendments dealing with criminal procedure made little headway in the Forties, however. In Belts vs. Brady (1942), the Court ruled that the Sixth Amendment did not apply to the states, and in 1947 and 1949 it ruled that the same was true for the Fifth Amendment and Fourth Amendment ("The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized").

In the last decade, however, each of these cases has been overruled. "When Betts vs. Brady was decided," Black has said, "I never thought I'd live to see it overruled." Not only did he live to see that day, but he wrote the opinion overruling it. In the Gideon case of 1963, the Court declared that state courts, like Federal courts, must appoint a lawyer whenever an indigent defendant in a serious criminal case asks for one.

Clarence Gideon had been convicted in Florida of breaking into a poolroom and received a five-year jail sentence. At his trial, he had tried to serve as his own lawyer, the court having declined to furnish him counsel. From his jail cell, Gideon sent a petition, written by hand, in pencil, to the Supreme Court of the United States. That tribunal consented to hear his appeal and appointed Abe Fortas, now a member of the Court, to represent Gideon.

Unanimously, in a decision written and read with obvious satisfaction by Justice Black, the Court reversed Gideon's conviction, concluding that "in our adversary system of criminal justice, any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."

The Court has also dealt extensively with what lawyers call "out-of-court" procedures--police methods of gathering evidence, arresting suspects and questioning them prior to trial. In Mallory vs. United States (1957), a young married woman had been raped by a masked man in the basement of an apartment building. The victim, as in many cases of this kind, could give very little description of her assailant, except that he was a Negro. The police quickly arrested three young Negroes who lived in a basement apartment where the rape occurred, took them to police headquarters and interrogated them intensively for hours, notwithstanding an explicit District of Columbia procedural requirement that an arrested person be taken before a judicial officer "without unnecessary delay." Finally, one of the suspects, Andrew Mallory, broke down under a lie detector test and confessed he had committed the crime. Later that night he dictated a detailed confession and signed it. On the basis of the confession, he was subsequently convicted of rape and sentenced to death.

The Supreme Court unanimously reversed the conviction. "The police," wrote Justice Frankfurter, "may not arrest upon mere suspicion but only on 'probable cause.' The arrested person may, of course, be 'booked' by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt. ... It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on 'probable cause.'"

An even more significant case was Mapp us. Ohio (1961), in which the Court overturned its previous ruling that the Fourth Amendment did not apply to the states. Cleveland police had broken into the home of a woman named Dollree Mapp on the basis of a tip that her residence contained "policy paraphernalia" and a bombing suspect. Finding neither, the police handcuffed her and searched the house until they discovered erotic pictures and pamphlets. Even though the police had neither a warrant nor probable cause to conduct such a search, Dollree Mapp was convicted of possessing obscene literature and sentenced to one to seven years in prison.

In reversing her conviction and holding that the states, as well as the Federal Government, are bound by the Fourth Amendment, the Court rendered "all evidence obtained by searches and seizures in violation of the Constitution ... inadmissible in a state court." This holding removed one of the principal incentives for police to violate search-and-seizure rights; since illegally obtained evidence could no longer be admitted in court, law-enforcement procedures throughout the nation were revolutionized.

The Court was widely criticized for its decisions in Mallory and Mapp. According to Michael J. Murphy, former police commissioner of New York City, such decisions meant that "we are forced to fight by Marquis of Queensberry rules while the criminals are permitted to gouge and bite." However, Justice Brennan offered a quite different explanation of the meaning of such decisions: "A real test of how civilized a society has become is how it enforces its criminal law. No nation possesses a code better designed than ours to assure the civilized and decent administration of justice which is a free society's hallmark. But that code will provide only paper protection if our people are more concerned with prosecutions that are overturned than with fundamental principles that are upheld." And Chief Justice Warren has added: "The police must obey the law while enforcing the law. ... In the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."

Despite the criticisms directed at it, the Court has continued to deal with police invasions of constitutional rights. In Escobedo vs. Illinois (1964), the Court reversed a conviction because a suspect being interrogated in a police station had not been allowed to consult a lawyer who had come to the station house to see him. In such a situation, the majority ruled, a defendant is entitled to consult with counsel as soon as an investigation makes him a prime suspect. Police have long pointed out that they obtain many confessions between arrest and formal arraignment--without a lawyer present. Justice Arthur Goldberg, who wrote the majority decision, dissected this traditional police procedure. "The fact," Goldberg said, "that many confessions are obtained during this period points up its critical nature at a 'stage when legal aid and advice' are surely needed. Law enforcement which comes to depend on 'the confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.... If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system."

Dissenting, Justice Harlan called the new rule "most ill-conceived" in that "it seriously and unjustifiably fetters perfectly legitimate methods of criminal law enforcement." Justice White agreed, adding sarcastically that the ruling would be unworkable "unless police cars are equipped with public defenders."

Justice White has continued to express his displeasure at the Escobedo ruling. In recent arguments before the Court, the Government has maintained that a suspect's rights are not necessarily violated if police are permitted to talk with him before he sees a lawyer. "After all," the Solicitor General said, "the lawyer can't prevent him from being fingerprinted. He can't prevent him from being mugged, or put in a line-up."

White leaned forward and said grimly, "Not yet."

In Miranda vs. Arizona (1966), the Court again faced the question of Fifth and Sixth Amendment rights and ruled that, as soon as anyone is "subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any way," the police must follow these procedural safeguards: The suspect must be warned that he has the right to remain silent. He must be told he has the right to have a lawyer present. Furthermore, if the suspect starts talking and then indicates "in any manner" that he wants to remain silent, the police must stop questioning him. If these procedures are not followed, evidence obtained during questioning will not be admissible in any felony or misdemeanor trial, in any state or Federal court.

Once again, police procedures throughout the country were subjected to far-reaching changes. In a recent multiple-murder case in Chicago, for example, Richard Speck, the prime suspect, was unconscious when arrested, but arrangements were made to have a court-appointed lawyer stand by at the hospital. These decisions have also elicited a chorus of criticism, most of it based on the notion that criminals cannot be convicted unless they are encouraged to testify against themselves, and that if suspects are provided with immediate counsel, they will be warned not to confess.

Defenders of the Court's decisions point out that, whatever merit the criticism may have, it appears to ignore the explicit commands of the Bill of Rights condemning compulsory self-incrimination and assuring the assistance of counsel. Percy Foreman, the formidable Texas trial lawyer, stated, "The police are having to think and work now--using something besides their boots and billies." A less colorful solution to the law-enforcement quandary was suggested by Cincinnati prosecutor Melvin G. Rueger, who told local police to "do a more effective job before you start talking to a defendant."

In the Mapp, Gideon and Escobedo cases, among others, the Court has been applying more and more sections of the Bill of Rights to the states. When it was originally adopted, the Bill of Rights was interpreted as limiting only the powers of the Federal Government. Justice Black has steadfastly contended that one of the chief purposes of the Fourteenth Amendment--when it became part of the Constitution after the Civil War--was to make all the specific provisions of the first ten amendments applicable to the states. In Black's view, the provisions of the Fourteenth Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws") cannot be reconciled with the states' continuing violation of the Bill of Rights.

Although the Court has on three separate occasions come within one vote of accepting Black's view, he has not yet carried a majority with him. But the Court is certainly moving in that direction. After deciding in 1961 that all evidence obtained in violation of the Fourth Amendment is inadmissible in state courts, the Supreme Court ruled the next year that the Eighth Amendment's ban on cruel and unusual punishments also applies to the states. Then in 1963 came the Gideon case, requiring the states to adhere to the Sixth Amendment's provision of counsel in criminal cases. In 1964, by a five-to-four vote, the Court extended the Fifth Amendment's privilege against self-incrimination to witnesses and defendants, whatever their status, in all state courts. And in 1965, the Court, six to two, forbade state prosecutors from calling attention to a defendant's refusal to testify under his Fifth Amendment rights.

Black has been successful, meanwhile, in achieving majority support for a literal application of the Fourteenth Amendment's Equal Protection Clause. In a series of cases decided in the Forties, the Court had ruled that the principles of the Due Process and Equal Protection Clauses did not apply to questions involving legislative apportionment, since these are political questions. Accordingly, the Court refused even to consider whether a malapportioned legislature might deprive poorly represented voters of equality of treatment. Black dissented in these cases, and finally, in 1962 (Baker vs. Carr), his view prevailed. This case involved a suit brought by a group of urban citizens in Tennessee who contended that rural control of that state's legislature deprived city voters of equal rights under the law. The Supreme Court agreed that it had power to decide the case, citing the Fourteenth Amendment's Equal Protection Clause. In subsequent decisions, the Court ruled that both houses of any state legislature had to be apportioned on the basis of population alone. One man, one vote.

Another issue on which the Court has broadly enforced the Equal Protection Clause concerns the rights of Negroes to equality under law. In Brown us. Board of Education (1954), the Court dramatically confronted the issue. That decision, unanimously declaring compulsory racial segregation in the public schools to be unconstitutional, reversed more than a half century of complacent adherence to the unsupportable doctrine that constitutional equality could be achieved by giving whites and Negroes separate facilities that were more or less equal in quality.

In 1896, in Plessy us. Ferguson, the Court had considered the constitutionality of a Louisiana law providing that "all railway companies carrying passengers in their coaches in this state, shall provide equal, but separate, accommodations for the white and colored races." In an opinion written by Justice Brown, the Court declared that the mere separation of the races could not be considered, of itself, to constitute inequality or discrimination.

In what may be the apex of judicial sophistry in American constitutional history, Justice Brown wrote: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

In a lone but searching and prophetic dissent, the elder Justice Harlan proclaimed: "Our Constitution is colorblind, and neither knows nor tolerates classes among citizens .... The thin disguise of 'equal' accommodations ... will not mislead anyone, nor atone for the wrong this day done."

In the 1954 school segregation decision, the Court finally vindicated Justice Harlan in an opinion written by Chief Justice Warren: "Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

In subsequent decisions, the Court struck down Jim Crow in parks and playgrounds, swimming pools and beaches, and in all recreational accommodations operated under municipal, county or state auspices. With the meaning of equality under the law thus firmly established, Congress finally passed a succession of civil rights laws, outlawing racial discrimination in all kinds of private enterprises affecting the stream of interstate commerce, and also providing means by which Negroes' right to vote, also expressly guaranteed by the Constitution, could actually be protected.

The segregation cases, better than any others ever decided by the Court, illustrate the necessity for a Constitution and a Supreme Court to protect the rights of a minority from the often callous will of the majority. The Negro was systematically denied his full rights of citizenship in many areas of this country for the last century, and, in spite of minor improvements in his lot, there seemed little prospect of major concessions from the white majority via the political processes. Fortunately, the authors of the Fourteenth Amendment foresaw this injustice and provided the Supreme Court with the power to enforce equal protection under the law for all. That the Court evaded its duty in 1896--in Plessy us. Ferguson--is tragic, but it is to the credit of the Warren Court that, in the face of bitter hostility, it saw its obligation and performed it. "The Supreme Court ... does not deserve all credit for the nation's new march toward the color-blind society," Judge Loren Miller has pointed out in his book The Petitioners: The Story of the Supreme Court of the United States and the Negro. "But ... certainly it broke the log jam of law and precedent ... It would take blindness of another sort and of great dimensions to conceal the fact that much remains to be done. But there is hope now where there was once despair; there is faith now where there was once doubt and cynicism."

Apart from its concern with traditional civil rights and liberties, the Court is actively evolving and interpreting individual rights that, though not explicitly spelled out, are implicit in the Constitution. As Justice Douglas has said, "The Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Accordingly, the Court in recent years has been actively pursuing the admonition of a 19th Century Justice (Joseph Bradley) that "Constitutional provisions for the security of person and property should be liberally construed .... It is the duty of the Courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachment thereon."

In Robinson vs. California (1962), the Court ruled that the conviction and punishment of a narcotics addict under a statute that made it a criminal offense to "be addicted to the use of narcotics" violated the prohibition of the Eighth Amendment against "cruel and unusual punishments." California had construed its narcotics statute as applying to the "status" or "chronic condition" of being addicted, but the Court held, in an opinion by Justice Stewart, that the imprisonment of a person for what he is, as opposed to what he does, is cruel and unusual, regardless of the length of imprisonment imposed.

This opinion--that status cannot be the basis for a criminal conviction--may project the Court into entirely new judicial areas. For example, it raises the question of whether criminal proceedings based upon charges such as habitual drunkenness, where no charge of specific illegal conduct is made, are constitutional. And in view of the Court's willingness to look behind statutes that purport to be regulatory but are actually punitive, this aspect of the Robinson holding could be extended to protect individuals who are barred from employment and other Government benefits on the basis of their status (for example, homosexuals).

Another recent decision that has created new constitutional doctrine is Griswold vs. Connecticut (1965), involving the penumbras of the First, Third, Fourth and Fifth Amendments. In Griswold, the Court, speaking through Justice Douglas, held unconstitutional a Connecticut law that prohibited the use of contraceptives, because the statute invaded "the zone of privacy created by several fundamental constitutional guarantees." According to Douglas:

Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "Governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

Like Robinson, the Griswold case requires the Court for the first time to consider the constitutionality of laws not only from the standpoint of the abstract power of Government to enact such laws but also from the standpoint of how, as a practical matter. the laws are to be enforced. Where enforcement would involve the Government in unconstitutional procedures, such a law, though valid on its face, is, under Griswold, unconstitutional. Indeed, the doctrine might be taken far enough to invalidate statutes punishing consensual sexual conduct among adults, since the enforcement of these laws usually involves entrapment or illegally obtained evidence.

The Court's recent concern with the right of privacy, a right long taken for granted but of especial importance amid the stresses of modern society, indicates, as Justice Douglas has said, that "All constitutional questions are always open." Accordingly, the Court in the years ahead is certain to continue to function in "the quiet of a storm center." The Court, for instance, has already been asked to extend the application of the separation of church and state by ending state and local tax exemptions for houses and buildings used for public worship. Also due before the Court are state laws against interracial marriages--an area of equal protection of the law on which the Court has not yet directly ruled. And the definition of an individual's right to privacy is bound to involve the Court in rulings on the increasingly sophisticated methods of obtaining information without the individual's being aware that he is under scrutiny.

Many open questions still exist, moreover, concerning the scope of the Fifth Amendment. In a case on which the Court has agreed to rule during its next term, 20 Connecticut gamblers were convicted under a Federal law requiring them to file information that could have led to the state's bringing them up on charges under state gambling laws. By refusing to file the information, are the gamblers within the Fifth Amendment's protection against self-incrimination?

Nor has the Court's ruling in the Ginzburg case by any means ended its deliberations on the constitutionality of limiting free speech and free press on the grounds of alleged obscenity. The Court has recently agreed to decide the constitutionality of an anti-obscenity law in Arkansas that permits judges to ban "obscene" magazines, have them destroyed and prohibit the sale of any future issues of the magazines. And certainly, in cases to come, the Court will again be forced to rethink its opaque 1957 ruling in the Roth case that "obscenity" is nonspeech and therefore not protected by the First Amendment.

Inevitably, some of the Court's future decisions will ignite more outraged criticism of it. But, as the late Justice Robert H. Jackson said, "Public opinion ... always seems to sustain the power of the Court. . . . The people have seemed to feel that the Supreme Court, whatever its defects, is still the most detached, dispassionate and trustworthy custodian that our system affords for the translation of abstract into concrete constitutional commands." Moreover, the genius of the United States Constitution--which, though not offering a panacea for all social ills, does guarantee an atmosphere of freedom, fairness and justice in which to solve them--is becoming increasingly appreciated and understood by the American public.

Justice Douglas has written, "We need a renaissance of liberty at home. . . . The more tolerant of the unorthodox we are, the more respectful of minorities we become, the greater the chance of realizing the rich dividends of a Free Society. The greater our insistence on fair procedures by Government, the greater the confidence in Government. The more we encourage pluralistic tendencies at home, the greater our ability to manage the critical affairs of the world. ... The advantage of encouraging nonconformity is that new and fresh approaches to troublesome problems are encouraged. Once speech, belief and conscience are placed beyond the reach of Government, a nation acquires a spiritual strength that will make it a shining light to all who have never known the blessings of liberty, even to those behind the Iron and Bamboo Curtains."

The Supreme Court, as the ultimate guardian of our constitutional rights and liberties, stands at the forefront of a continuing struggle to turn into reality the ideals upon which this country was founded. Here we have the opportunity to show that individual freedom and equal justice under law are worth the effort and sacrifice of achievement. As Justice Black has suggested, this Government, with its Constitution and Bill of Rights, may indeed be "the last best hope of earth."