Since I had to prepare remarks for a panel discussion for today, I was unable to do my weekly First Amendment News column. Instead, I opted to present an abbreviated essay from a work-in-progerss, actually two. In the main, I stitched together something from one of my books (We Must not be Afraid to be Free) and a future article (“The Maverick – A Biographical Sketch of Richard Posner”), this in addition to some reliance on Justice Brennan: Liberal Champion (2010) by Seth Stern and Stephen Wermiel and other works. I also benefitted from the thoughtful assistance of Judge Posner and Robert M. O’Neil. The result is this post, also a prelude to a more scholarly work on NAACP v. Button (1963). Shortly, I will say more about Judge Posner’s involvement in Button, but before I do I thought it might useful to say a few prefatory things about the history of the case.
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The case’s original name was NAACP v. Patty, which began in 1957. After cert. was granted, the case name changed to NAACP v. Gray. Later it would be changed to Button, the last name of the Virginia Attorney General at the time. The controversy involved a challenge to five Virginia laws which, according to Fourth Circuit Court Judge Morris Aimes Soper, “were enacted [in 1956] for the express purpose of impeding the integration of the races in the public schools of the state which the plaintiff corporations are seeking to promote.” The laws in question banned the encouragement of certain kinds of litigation (“barratry” statutes) and the solicitation of clients (including in pro bono cases) and/or the financing of litigation (“champerty” statutes). The lawyer who represented the NAACP was Robert L. Carter (1917-2012), Thurgood Marshall’s chief legal assistant (and later General Counsel to the NAACP). By 1957, recalled Carter in his memoir (A Matter of Law), the group was involved in 25 cases in various states employing barratry and champerty laws aimed at halting civil rights litigation. Henry T. Wickham (1920-2008) represented the state of Virginia. In his obituary it was noted that Mr. Wickham “served as a special assistant to former Virginia Attorney General J. Lindsay Almond Jr. representing Virginia in an effort to preserve segregated public schools” in Brown v. Board.
→ For an informative and thoughtful account of Button, see Harry Kalven, Jr., The Negro and the First Amendment 75-90 (1965).
The Hand of Fate
Clik here to view.
Robert Young Button was the Attorney General of Virginia (Dem. –1962-1970) who backed policies of Massive Resistance to prevent public school desegregation (see short video clip here)
When it came time for a conference vote in the Button case, Chief Justice Earl Warren, predictably, voted to reverse. “The purpose of the statute is obviously to circumvent Brown,” he said. Justice Hugo Black agreed. “This is part of a scheme to defeat the Court’s order, and sooner or later we will have to grapple with these problems in those terms. The NAACP is finished if this law stands.” But Justice Felix Frankfurter pushed back. “I can’t imagine a worse disservice than to continue being the guardians of the Negroes. . . . There is nothing in the record to show that this statute is aimed at Negroes as such.” Justices Tom Clark and Charles Evans Whittaker agreed. “To strike this law down, we would have to discriminate in favor of Negroes,” said Clark, to which Whittaker added: “We should be color blind on this law.”
Warren added up the votes. It was a five-to-four split in favor of the state of Virginia. Justice Frankfurter eagerly began work on his majority opinion upholding Virginia’s law—the laws that made the NAACP’s brand of non-pecuniary solicitation and financing of litigation a disciplinary offense that could result in disbarment. (For a discussion of Frankfurter’s early role in the case, see Mark V. Tushnet, Making Civil Rights Law 277-278 (1994).)
At the same time, Justice Black circulated drafts of a dissent in which he claimed, among other things, that perhaps the law should be renamed “[a]n Act to make it difficult and dangerous for the [NAACP] and Virginia lawyers to assert the constitutional rights of Virginia Negroes in state and federal courts.” Then Black added a passage revealing how far removed he was from his days as a hooded member of the Ku Klux Klan. “The job of lawyers under [the] Constitution is not to lead revolutions, but to lead their people in taking advantage of the American methods for correcting injustice.” And courts, Black continued, had a responsibility to serve as “sanctuaries of justice.” To ignore that role here, he concluded, was to leave the courts “a little less havens of refuge than they were before this Virginia law was sustained.”
Clik here to view.
Robert L. Carter, lawyer for the NAACP
Justice Black’s internal comments exposed just how wide the ideological chasm had grown between the members of this Court. But Robert Carter wouldn’t get a chance to read them. Nor, for that matter, would anyone else. On April 1, 1962, before the Court could announce its decision in NAACP v. Button, Justice Whittaker retired on the advice of his physician. He was sixty-one. The “great volume and continuous stresses of the court’s work,” he explained in a written statement, had brought him to the “point of physical exhaustion.” That left a four-to-four split among the remaining jurists, who scheduled a rehearing of the case the following term. Then, a few days later, seventy-nine-year-old Felix Frankfurter collapsed at his desk from a stroke. He lived, but shortly afterwards he announced his retirement. Just like that, President Kennedy could appoint two new Justices—and Robert Carter could feel new hope.
→ An audio of the arguments in NAACP v. Gray can be found here.
New Faces, New Result
By the fall of 1962, President Kennedy had successfully appointed to the bench his top two choices—Byron White and Arthur Goldberg. And it promised to be a busy fall at the Supreme Court after they were both confirmed. Sometime around then, as Stern and Wermiel recount it, Justice Brennan busily circulated a 63-page memo that detailed the activities of the NAACP and its Virginia branch.
After hearing rearguments in Button, the Justices met privately to discuss the case on October 12, 1962. Chief Justice Warren had not changed his mind since first discussing the facts a year earlier. “The NAACP has a right to be in business,” he began. “If this suit goes against the NAACP, it is out of business.” Justices Black, Douglas, and Clark also maintained their original opinions. So did the typically restrained Justice John Marshall Harlan, who continued to claim that Virginia’s new law was “plainly constitutional. . . . Brown v. Board of Education will never work out if it is left in the federal domain. The states must do it. We have no reason to reverse Virginia on this law.” Justice Potter Stewart, the Eisenhower appointee from Cincinnati with the unpredictable voting record, was the first of the veteran Justices to suggest a possible change of heart. “I am not sure,” he said, “but I am inclined to reverse.” Justice White, the first of the two new members to speak at the private conference, was even less certain than Stewart. “I do not know where I stand.” Goldberg was more certain. “There is a substantial equal protection point here and I could reverse on that,” he said.
Clik here to view.
Justice William Brennan, Jr.
The loss of Frankfurter and Whittaker resulted in a voting shift on the Court. Once the Justices’ final votes were tallied, last year’s five-to-four defeat became this year’s six-to-three victory. While he still had some life in him, Justice Frankfurter expressed his contempt for the changed outcome.
→ An audio of the arguments in NAACP v. Button (the reargued case, still listed as NAACP v. Gray) can be found here.
It was a new day for the NAACP. Justice William Brennan announced the decision on January 14, 1963. “We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business.”
Brennan’s opinion was notable, wrote Thomas Emerson, because it “extend[ed] the concept of expression to a point that no decision of the Court had previously reached.” Litigation, Brennan ruled, is not just “a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus,” Brennan concluded, “a form of political expression.”
In Robert Carter’s mind, the decision represented “a very vital civil rights victory. Button provided First Amendment protection for the activities of organizations such as the NAACP that engage in protest activities through the court process—those that use court litigation to fight racial or other forms of discrimination.”
Behind the Scenes: Brennan’s Law Clerk
Clik here to view.
Richard A. Posner, Harvard Law Review photo
Since Button was held over a year due to the change in the Court’s makeup and the rearmament of the case, work on the majority opinion did not come to Felix Frankfurter’s law clerk, David P. Currie. By the same token, fate might have deprived Brennan’s law clerk for the 1961-62 Term, Frank I. Michelman, the chance to work on the Justice’s possible dissent. Instead, fate pointed its finger to Richard A. Posner to write not a dissent but a majority opinion.
He was 23 and fresh out of Harvard Law School. His first full-time law job after graduating was as a law clerk to Justice Brennan. (Robert M. O’Neil, another Harvard Law man, was Brennan’s other clerk.) As Fortuna had it, the Button case (the one that was reargued) was assigned to Justice Brennan, who in turn passed it along to his law clerk to write the opinion. “That was one I did for Brennan,” Posner told Kenneth Durr in a 2011 interview. When I recently asked Judge Posner if his statement meant that he had written Button (or the lion’s share of it), he replied “yes.”
→ Aside: Given the change in the voting lineup and Justice Brennan’s majority opinion, Justice Black never found any need to render an opinion (his law clerk at the time was A. E. Dick Howard). But Justice Harlan did file a dissenting opinion (his law clerk at the time was David L. Shapiro).
According to Stern and Wermiel, Brennan “initially wrote a narrow opinion that rejected the Virginia law as overly broad, avoiding the underlying constitutional issue of whether the law interfered with the freedom of association or speech.” When Justice Black objected to that “narrow approach, . . . Brennan rewrote the opinion to address the law’s First Amendment implications.” Neither Posner nor O’Neil had any recollection of Brennan’s so-called “narrow opinion.”
→ An earlier account the internal workings of the Button Court is set out in Bernard Schwartz’s Super Chief: Earl Warren & His Supreme Court — A Judicial Biography 450-452 (1983).
“Take it to the printer”
Here is the gloss on the Button story as told to me recently by Bob O’Neil: “Immediately after the first conference at which opinions were assigned (that would have been the second week or so of October, 1962) the Justice walked into our shared office and turned to each of us. To Dick he said simply ‘Gray,’ which was, of course, the initial caption of the NAACP case), and to me “Wong Sun” (a ‘fruit of the poisonous tree’ search case).”
Two assignments, two cases (a First Amendment case and a Fourth Amendment one), and two law clerks (that was the allotment back then). “We went immediately to work preparing drafts, which were ready by the ensuing week. Dick worked page by page toward an impeccable draft, while in contrast I revised page by page until the text seemed ready for review. The Justice took both drafts home for careful reading.”
Brennan reviewed both draft opinions. “On Monday morning, with feigned indignation, he slammed both drafts down on our respective desks. ‘Dammit,’ he said, ‘I’ve worked on these all weekend and except for a few typos I can’t improve on either. Take them to the printer!’” Sometime around then, Posner recalled, “a chunk” of his work was “cut out by Brennan at Black’s insistence,” this while Posner was away. With that, the Posner opinion went off to the printer.
And so it was in the cases of NAACP v. Button (a 6-3 ruling) and Wong Sun v. United States (a 5-4 ruling).
Eight passages
As Professor Emerson correctly observed, Button broke new First Amendment ground.
In addition to the passages quoted above, here are eight additional and important excerpts from the Button opinion:
- Beyond Labels & Abstractions to Vigorous Advocacy: “We meet at the outset the contention that ‘solicitation’ is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication [that] the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.”
- The Importance of Litigation: “Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts. Just as it was true of the opponents of New Deal legislation during the 1930′s, for example, no less is it true of the Negro minority today. And under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.”
- The Right of Association: “The NAACP is not a conventional political party; but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association.”
- The Threat of Deterrence: “The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”
- Narrowly Tailored: “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.”
- Civil Rights Litigation: “Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers;the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation.”
- No Regard to Race: “That the petitioner happens to be engaged in activities of expression and association on behalf of the rights of Negro children to equal opportunity is constitutionally irrelevant to the ground of our decision. The course of our decisions in the First Amendment area makes plain that its protections would apply as fully to those who would arouse our society against the objectives of the petitioner. For the Constitution protects expressionand association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered.” [The last portion of the preceding sentence was quoted approvingly by Justice Brennan in New York Times co. v. Sullivan (1964).]
- Satisfying the Applicable Test: “The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms. . . [T]he State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner’s activities, which can justify the broad prohibitions which it has imposed. Nothing that this record shows as to the nature and purpose of NAACP activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application of Chapter 33 to those activities.”
An “exciting” (but somewhat constrained?) opinion
Clik here to view.
Professor Harry Kalven, Jr.
Professor Harry Kalven (1914-1974) thought highly of NAACP v. Button and its contribution to First Amendment jurisprudence. “The Court,” he wrote in The Negro and the First Amendment, “offers a generous view of the range of First Amendment protection, a view which seems to me to be indisputably correct although the Court had never previously been given an appropriate occasion for announcing it.” He found it “exciting” that majority opinion appeared to break “new ground.”
And what was that new ground? “[T]hat litigation for the Negro today [is] a First Amendment activity. It is a kind of protest, a kind of vigorous advocacy, a kind of political expression.” Still, he thought the opinion somewhat constrained in terms of its response to Justice Harlan’s dissent. In that regard, he thought that “Brennan [did] not seem to have the courage of his First Amendment convictions . . . . ” He thus raised a rhetorical question: “Would it not have been possible for him to stand on his First Amendment point and to hold that recruiting of constitutional litigation with vigor is a protected activity, so that even Justice Harlan’s construction of the Virginia statue violates the First Amendment?” (There is more, but for now I will simply refer readers to Professor Kalven’s book.)
Vibrant Public-Interest Litigation
Beyond the doctrine, there was the reality of the ruling, its real-world impact on a civil rights group heretofore under constant attack. In that regard, observed Hunter R. Clark in his 1995 biography of Brennan, the “ruling in Button gave a tremendous boost to NAACP efforts in the South.”
In much the same realist mindset, Professor Mark Tushnet flagged the practical and constitutional significance of the public interest-litigant aspect of Button. “In the barratry case,” he wrote, “the Court endorsed the form of public-interest law practice that [Charles] Houston, [Thurgood] Marshall, and their colleagues had created. . . . [Button] offered the Court and the profession two models of ‘reform’: a transformation of traditional standards that would have restricted the development of public-interest practice, and a transformation that promoted it.” (This general topic is explored at greater length in this article by Professor Susan Carle.)
In his book Brennan and Democracy (2005), Frank Michelman suggested that the reasoning in Button had “remarkable implications.”
“It directly attacks the notion that law stands neutrally and impartially above and apart from politics, while tossing overboard a traditional, conservative, justification of lawsuits as essentially nonaggressive and politically status actions by which people simply ask the state’s assistance in securing their entitlements under preexisting, fixed, and unquestioned rules of justice.”
In sum, young Richard Posner’s work product in Button resulted in an opinion that gave new meaning to First Amendment law and new vitality to public-interest litigation. Though it is not listed as a part of the body of his nearly 3,000 judicial opinions, Button is, nonetheless, one of Posner’s earliest and most significant opinions.
As I will discuss in a future piece on Judge Posner, there is a certain irony here, namely, that such a momentous opinion was written by a law clerk who when he became a judge refused to permit his own law clerks to write his judicial opinions. Then again, as Judge Posner once quipped, “Life is full of surprises . . . .”