Day 116: Florida Freedom Summer of 2024: The United States once was a nation of laws, briefly….

Some of the old myths of public elementary school education thankfully are changing.  Nobody really is asked to believe that George Washington bravely admitted chopping down a cherry tree, because he couldn’t tell a lie.  And though Columbus Day still remains an official holiday, surely the teaching of the white newcomers and the indigenous people sharing Thanksgiving as equals is fading away.

But several notions persist. e.g., the United States is a nation of laws, not men.  TRUE OR FALSE?  The federal and every state government has a system of checks and balances, maintained by three branches of government, the executive, legislative, and judicial.  The role of the judicial branch has been distorted.

The judicial branch is the province of lawyers, though the requirements to practice, and to be selected to be a judge or justice has changed dramatically since the United States became a nation in the 18^th Century.  The public is kept out of meaningful input in the selection and review of the judicial branch.

Until the 20th Century, almost any white male could become a judge or justice. Chief Justice John Marshall, whose opinions are credited with establishing the U.S. Supreme Court as the final authority for the interpretation of the U.S. Constitution, was mostly self-educated.   His William & Mary University describes its alum this way

"Marshall studied law at William & Mary under the tutelage of George Wythe in 1780. Marshall’s tenure here was brief but potent in forming the character of the person who would lay the foundations of American constitutional law."

Until the 20th Century, to become admitted to practice, many aspiring lawyers apprenticed with attorneys or law firms until they believed themselves able to pass law exams.  In 1906, the Association of American Law Schools adopted a requirement that law school consist of a three-year course of study.  The Association itself was not formed until 1900.

In 1921, the American Bar Association formally expressed a preference for required written bar examinations in place of diploma privilege for law school graduates. 

 

 

In that decade, the American Bar Association (ABA) was able to persuade states to require some sort of examination before a person could practice law, rather than accept anyone who completed three years of law school into the legal system.  Only Wisconsin today still does not require an exam for admission.

As for being a judge, there are almost no formal qualifications—such as a minimum age or years of experience—for most federal judges. U.S. Court of Appeals and District Court judges are not even required by law to have legal training, but today having a law degree is recognized as an implicit qualification for Article III judges.    

To be a judge in most states, you have to be a citizen,  admitted to the particular state’s bar, often with a minimum number of years as a lawyer. And that's all.

Because the legal profession is so self-regulating, the aspiration of the United States to be based on a system of laws rather than of men (sic) has not come close to reality.  The reality is that the branch of government is controlled by white Christian men, to serve the interests of the business community, and to preserve order.  Family law rooted in church law is an exception and doesn’t pretend to have meaningful precedents.  Each case is individual, in most instances  guided by such generalities as acting in the best interests of the child.

As a lawyer who has passed the Bar in New York, Michigan, and Florida, and gained admission to courts in five of the 12 federal circuits, I lucked out in entering the field during a brief period of about 30 years when enough idealistic judges and U.S. justices were seated to make the idea of a nation of laws are real possibility.

The starting date of that era of hope for the law is clear—May 17, 1954, when the U.S. Supreme Court unanimously declared that state laws mandating separation of the races in public schools were unconstitutional.  

The Brown v. Board of Education cases were brought by lawyers for the NAACP originally, before several spun off into the NAACP Legal Defense Fund, aka the Inc. Fund.  As long as racial segregation was deemed to be the law of the land, no aspirational goals for all the people could be reached.

The specific date ending that brief period when justice seemed possible is less certain but it is tied to the time when Justice William  Rehnquist had four like-minded Republican justices to allow him to make up the law as he saw fit in the 1980s.

The poor had little opportunity to be heard at all until the U.S. Supreme Court for the first time recognized in 1968-70 that they as a class were entitled to some constitutional rights, e.g., the right to notice and a hearing before they could be deprived of benefits, the right to freedom of movement anywhere in the United States, and the statutory protection afforded by the Social Security Act.  

Lyndon Baines Johnson’s War on Poverty included a separate Office of Economic Opportunity (OEO) Legal Services Office, to provide lawyers to pursue the interests of the poor  I was fortunate in being at the Center on Social Policy & Law, in 1967-70; then a Reginald Heber Smith  Community Law Fellow, (Reggie), 1970-72, assigned to a federally funded state back-up center, Michigan Legal Services, 1970-79; a Legal Services Corporation (LSC) Research Fellow in North Carolina (1979-80), and then with the public interest/non-profit Puerto Rican Legal Defense & Education Fund, PRLDEF) 1980-1984.

At the Center, I was one of 82 attorneys given a three-week course in Vail, CO, in 1969, and one of 250 Reggies in 1970, trained in test case and class action litigation.   In those pursuits, the focus is on what the defendants did wrong rather than what your clients did to justify their allegations of wrongdoing.

We were there to use the Courts to change the laws and practices which had limited the rights of common people since our nation’s beginnings.   By 1972, former Vice President Spiro Agnew in the ABA Journal criticized OEO Legal Services with creating ideological vultures seeking to redistribute the wealth of the nation rather than merely provide legal aid to individual clients.  I wss proud of that accurate description.

When Ronald Reagan was elected President in 1980, that era was over.  As governor of California in the 1970s, Reagan had been embarrassed frequently by my colleagues in the California Rural Legal Assistance (CRLA) who were especially successful in representing Cesar Chavez’s migrant workers union.  As president, Reagan appointed judges and U.S.  Justices, including Justice Rehnquist as chief, whose beliefs had been vetted to assure their ideological commitment.  By the time Reagan left office in 1988, the Federalist Society had become a formidable right-wing extremist organization.  Society members went on the U.S. trial and appeals benches.

Republican and conservative Democrats on the bench followed their lead and effectively shut down test cases and proposed class actions by any means necessary.    A federal Rule 11 which allows judges to impose penalties on what they regarded as frivolous lawsuits was applied far more frequently than in the past.  My mentor, the late Judge Robert Carter, one of the Inc Fund attorneys, in 2004 stated his belief that Brown v. Board cases on the 50th anniversary of that decision, would have been declared frivolous and reviewed as such by the U.S. Supreme Court.  The merits never would have been heard.

In 1967, the highest court did grant qualified immunity to protect law enforcement and education officials from civil rights actions against them if, say, they used excessive force on blacks, but had no reason to believe at the time that their actions were unconstitutional.

State courts generally were never considered a viable alternative for progressives.  In some states, the courts are entirely controlled by conservative bar associations, on local as well as state levels.  There are few memorable controlling opinions on civil rights and public interest law issues, which can be relied upon as precedents.  As case loads become heavier, clerks rather than judges are entrusted with drafting controlling opinions.

So called Tort Reform came into vogue as espoused by Jeb Bush as governor of Florida to limit claims and cap damages to avoid corporations from going out of business, and to prevent businesses and individuals from payouts which would hurt their operations. 

Businesses used force arbitration, advocate alternative dispute resolutions rather than civil trials, and resist discrimination allegations.   Civil trials have virtually disappeared as a result.

The final blow against progressive litigation has been rendered by so-called SLAPP suits.  'SLAPP' was coined to recognize lawsuits filed to silence criticism.

A SLAPP suit may look like a civil lawsuit for defamation, nuisance, interference with contract, interference with economic advantage, or invasion of privacy, but its purpose is different. About this purpose, Judge J. Nicholas Colabella wrote in Gordon v. Marrone (N.Y . 1992), “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”   https://www.mtsu.edu/first-amendment/article/1019/slapp-suits

As for criminal law other than white collar crimes, the presumption of innocence has virtually disappeared, as a result of detailed news reports of arrests from the police perspective.  Who needs a jury trial once the police have given the public their one-sided view of the facts, which will be followed by prosecuting attorneys.   Police use of mug shots has been taken over as a cottage industry and made available generally.  Plea bargains are encouraged, even for the innocent who cannot afford to hire decent lawyers .  They choose a plea rather than spend time in jail which may be longer than any sentence they might receive.

In sum, progressives cannot count on any sort of meaningful relief  in the judicial branch in most places in the United States, but, as will be seen next time, volunteer lawyers will be vital for a successful Florida Freedom Summer of 2024, just as they were in 1964.   Gabriel Hillel