End of the Warren Court

...While reacting negatively to the techniques of political action and expression he had once blessed...

...By Simon Lazarus bizarre promotion of "Axe-Handle" Maddox...

...Fortson v. Morris, as the case is officially styled, drew extraordinary attention from the popular media primarily because of this Simon Lazarus is a writer and editor on the Yale Law Journal...

...Even if Fortson v. Morris did draw the line against amplification of the one-man, one-vote principle...

...Last month, more than two years later, a controversy bristling with irony brought the same two parties before the same tribunal...

...Reporters covering the public reading of the decision noted fire in Justice Hugo Black's voice as he defended the majority's position...

...Hence, both sides on the Court focused on a more ambitious argument made by the liberals: that Georgia's two-step election procedure would be invalid even if the legislature were properly apportioned, because legislative election of a state chief executive necessarily flouted the one-man one-vote rule of the reapportionment cases...

...Now Black has been joining on a large number of cases with conservatives John Marshall Harlan, Byron R. White, Potter Stewart, and Tom C. Clark against the liberal activists...

...That has to be done by the disadvantaged themselves, and by the political organizers who wish to serve them, in the Northern ghettoes as well as in the South...

...As for the Court, an era seems to be drawing to a close...

...Its protagonists were the civil rights activists who spread across the Southern countryside in the early 1960s and the Republicans on the Southern Federal bench appointed by Eisenhower...

...He stayed with the liberals, moreover, on the confession cases...

...The court could have helped that cause a little...

...This time, however, the Court refused to rule against the once-embattled segregationist...

...But where it counted most, Black won...

...These seemed to promise that genuine political change, with all its potential for transforming Southern life and national politics, might be at hand...

...his respect for local power is nowhere informed by Frankfurter's calculus of governmental interests, prerogatives, economies, relationships...

...Favoring order promoted only the power of a smalltown sheriff...

...Abandoning their usual practice of deciding cases on the narrowest available grounds, the Justices in their opinions appeared actually to seek out reasons to disagree, and more important, reasons which would make their dispute a memorable one...

...This reversed the Fifth Circuit's bold ruling that civil rights workers could remove sham prosecutions to the local Federal District court, where they could be summarily dismissed...

...As a purely intellectual matter, Black's new jurisprudence has its own stamp...

...nor a totally uncharacteristic deference for public opinion...

...Under the spur of Fifth Circuit Chief Judge Elbert Tuttle of Atlanta, Circuit Judge John Minor Wisdom of New Orleans, and District Judge Frank Johnson of the Middle District of Alabama, they put a halt to sham prosecutions designed solely to harass civil rights workers...

...In addition, the racial tumult seemed to enhance the importance of order for the secure enjoyment of liberty...

...But the Court seemed to consider this sensible argument too innocuous to dwell on...

...nor a covert sympathy for Lester Maddox's feelings about dining with Negroes...

...It was here that the Republican judges stepped in...

...These rather unlikely allies found common cause in their shared contempt tor the Redneck power structure...

...Black also discovered virtue in the integrity of state governmental power, a value he had once scorned in combat with Justice Frankfurter...

...The decision's grand fate is something of an accident...

...This became clear as he reviewed case after case thrown up before the Court from the Main Street battlegrounds of Alabama, Georgia and Mississippi...

...It provoked an uproar among the legal intelligentsia, however, because of its symbolic import...

...there is little more the Court can do, in any event, to insure majority rule, beyond spiking gross inequities in the vote count...

...Justice- Abe Fortas,elaborating on Douglas' arguments, scolded the majority for "cavalierly" assuming the constitutionality of the electoral-parliamentary model...

...But their immediate task was to galvanize their clientele, to prove that political organization was possible...

...Speaking through Justice Black, a 5-4 majority upheld a Georgia constitutional provision assigning gubernatorial elections to the State Legislature whenever the candidates failed to receive a popular majority...

...But to make demonstrations, or even ordinary voter registration activity at all effective, the threat of violence and harassment had to be removed...

...His change of heart reflects neither a crude sense that the pendulum has swung too far, as some commentators have suggested...

...If the Court were to buy the civil rights lawyers' claim, he asserted, it would have to adopt a mindlessly literal reading of the one-man one-vote principle, which could bar any state from ever establishing a parliamentary system of government...

...At first, they dissented, generally alone, in terms which a decade later were to become law...

...And last week, of course, that distinguished assemblage of rural Democrats put their fellow cracker in the executive mansion...

...The Georgia Election Case caught and publicly dramatized the currents on the Court and across the land which are aborting Warren's revolution...

...but liberty could not be served without aggrandizing the massive apparatus of Federal power...

...The battle was waged on two fronts????on the streets and in the Federal court houses of the deep South, on the one hand, and in the chambers of the Supreme Court on the other...

...More than any single controversy, the case may mark the end of the constitutional regime we have known as the Warren Court...

...For Black has indeed sought and in substance achieved subversion of an ambitious program of political reform sponsored by the liberals...

...Sensing the gap between the equal protection clause, the basis of all the Court's voting rights precedents, and the claim he sought to defend, he turned to another and potentially massive source of federal judicial power: Article IV, Section 4 of the Constitution...

...Only a strong Negro movement holds some promise of keeping Lester Maddoxes from state office...

...Only in this way could the activists gain credibility with the Negroes they sought to organize...

...Fortas apparently found the antidemocratic threat of parliamentarism so glaring that to quash it, he was willing to push constitutional doctrine several leagues to the left...

...Justice William O. Douglas, speaking for the four dissenters, filled his riposte with uncommonly pointed barbs...

...In June 1966 the Court shocked observers with Peacock v. City of Greenwood...

...The sheriffs who elected Jim Clark President of their fraternal order, could hardly be trusted to pay a decent regard for constitutional liberties...

...Since Georgia's Legislature would not itself be equally apportioned until May 1968, they argued, it should not be allowed to elect the Governor until then...

...Over more than a quarter century this duo of New Deal liberals engineered the Court's proudest and certainly most adventuresome achievements since Chief Justice Marshall first fashioned the Constitution into a formidable instrument of judicial power and federal supremacy...

...Issuing injunctions and authorizing victims of intimidation to "remove" their cases to the local Federal District court, they carved out exceptions to hoary rules of Federal-state "comity," which insulate state criminal institutions from direct interference by lower Federal courts...

...Since the Legislature could pick a candidate favored by a minority of the voters, the liberals contended the system is just as undemocratic as if it dictated that a certain number of ballots be tossed into the Okee-fenokee swamp...

...Black's focus remains on the individual...

...He found the Court guilty of "belittling . . . our Constitution's dynamic provisions with respect to the basic instrument of democracy????the vote...

...Ultimately their goal was "one-man, one-vote", as SNCC's bumper stickers proclaimed...

...The demonstrations, though, did not thrill Justice Black...

...This all-but-forgotten artifact of the original Philadelphia Convention commands tersely that "The United States shall guarantee to every State in this Union a Republican form of Government...

...Perhaps more significant than the actual issues in the Georgia election case, however, was the fact that the arguments of the Justices cast a bright public light on the growing intensity of the rupture between Justice Black and his former liberal comrades...

...But under Black's prodding the margin of favor for Dombrowski's principle of direct intervention shrank to 5-4...

...but at a crucial juncture, it declined to do so...

...Justice Fortas, appropriately allied with his former Yale law professor and New Deal associate Douglas, was on point in accusing Black of "belittling" the Constitution's interest in political equality...

...Heretofore considered too hot for the Court to handle, the Guarantee clause was understandably labeled by former Yale Law Dean Eugene Rostow as "the sleeping giant of the Constitution...

...The eventual triumph of their views on free speech, segregation, political equality, police power, and religion made the Court the dominant factor in shaping postwar domestic policy...

...Brandishing an axe handle, he had driven away a group of demonstrators seeking to test the new public accommodations law...

...even if, in Fortas' idiom, the Court has now limited its impact to the "mechanics of the tally...

...It is as if the Court used the ironic return of segregationist Maddox to dramatize a startling but by now long established fact: the remarkable breakup of Black and Douglas...

...Indeed, the crucial issues in the fight, and the crucial defeats for the liberals, did not concern voting rights at all, but the First Amendment rights of freedom of expression, assembly and petition...

...At first the Court backed the activism of the lower courts...

...This relatively obscure line of cases hurt the cause of political equality in the South far more than the Court's failure to expand one-man, one-vote in Fortson v. Morris...

...And the conservatives are winning, just as he and his present antagonists triumphed over Felix Frankfurter and his followers not very long ago...

...The hands of the local constabulary had to be tied...

...Each exploited daringly the available sources of power to strike at the racist Democrats' monopoly of power...

...Certainly the minority's ban on parliamentarism would not make government more representative of the politically disadvantaged...

...Ultimately, the point was not whether the Court would declare a new set of constitutional principles of political equality, but whether it would protect those who sought to implement principles already declared...

...To be sure they spent countless dull and dangerous hours prodding the Negro masses to register and vote...

...The main weapon of the activists was not the ballot but the demonstration...

...Hence the Kennedy amendment to the Voting Rights Act permitting Puerto Ricans to vote in New York should fall, for it was reasonable for New York to limit its electorate to English-speaking citizens...

...that through politics, Negroes could change their lives...

...A state law should not be held unconstitutional, he insisted, as long as it had some basis in reason...

...Grounded in brittle metaphysics, even this claim seems sterile...

...The barrage of demonstrations which hit Southern town after Southern town in 1963, '64 and "65 thrilled liberals throughout the North...

...The nature of this conflict is imperfectly understood, except by a small coterie of civil rights lawyers, Negro militants, and local Southern police and political officials...

...In general, Black failed to blunt the Court's drive toward greater political equality at the expense of state autonomy...

...The Georgia case was a clash of merely symbolic importance in that struggle...

...Hence the poll tax must stand, for it was reasonable for a state to weed out potential voters too indifferent to pay a nominal sum for the privilege...

...He convinced waverers on the conservative bloc to upset the measures invoked by the Southern Federal judiciary to protect would-be political organizers from intimidation...

...For this, drama was a must????the "creative tension" to which Martin Luther King, Jr...

...So Justice Black began to vote against the aclu and naacp lawyers who had long looked to him for inspiration...

...A chief aim became the painting of clear lines between the realms of state and Federal power...

...Maddox appeared as prospective Governor of Georgia, while civil rights activists, hoping to block his accession, matched his previous desperate repair to the judiciary...

...If there are glints of Justice Frankfurter's attachment to "federalism," subtle distinctions overshadow them...

...Finally, in autumn 1966, Black's majority held that as a matter of substantive law police could treat demonstrators on state property as trespassers...

...But in responding to it, the Justices engaged their deepest convictions about the degree to which the Constitution and, by necessary implication, the Supreme Court should be considered a guardian of democracy...

...He pushed aside the reapportionment decisions as "only voting cases...

...The legal issues ostensibly raised by the record were quite trivial...

...was wont to refer, the ceaseless demonstrations in front of county court houses ending in spectacular concessions by local authorities...

...The case could have been resolved against Maddox on one quite narrow claim proffered by civil rights lawyers Charles Morgan and Emmett Bondurant...

...In the much publicized case of Dom-browski v. Pfister, an April 1965 decision in which Black did not participate, a 5-2 majority authorized District court injunctions of certain kinds of prosecutions instituted in "bad faith" against civil rights workers...

...Viewed alongside the issues in the Maddox case, the liberal bloc's considerable expenditure of passion, eloquence and doctrinal resources is puzzling...

...What are the terms of the dispute...

...Indeed, in a deep South direct action case, order could seem less threatening than liberty...

...Its failure to support the Negro activists against the Southern constabulary in recent cases first intimated the retreat from its earlier activism...

...And in November 1965 an obscure decision concerning a clash between a Georgia police establishment and militant civil rights leaders appeared to overrule Dombrowski altogether...

...Black's apostasy must be understood for the unique phenomenon that it is, however...