Abe Krash assisted Abe Fortas in representing Clarence Earl Gideon before the Supreme Court in 1963. He is a partner in the firm of Arnold & Porter in Washington, D.C. and serves as Distinguished Visitor From Practice at the Georgetown University Law Center. He is a member of the District of Columbia Bar. This article is based on a talk he delivered at the Washington College of Law of American University. Those remarks have been revised and expanded.
The principal architects of the Supreme Court's landmark decision in Gideon v.Wainwright1 were Abe Fortas, a brilliant advocate, and Hugo Black, a great jurist. Fortas, who was then a lawyer in private practice in Washington, D.C., was appointed by the Supreme Court to represent Clarence Earl Gideon in connection with his appeal. He wrote the brief and presented the oral argument on Gideon's behalf. Justice Black was the author of the Court's opinion upholding the constitutional right to counsel of indigent persons in all state court felony prosecutions. Fortas and Black were each remarkable men, and the decision bears the imprimatur of both.
For those two, this case was a high water mark. In his memoirs, Justice Douglas wrote that Fortas' oral presentation in Gideon was "probably the best single legal argument" Douglas heard in his 36 years on the Court.2
A recent biographer of Justice Black, describing the scene at the Supreme Court on March 18, 1963, when Black delivered his opinion in Gideon, states: "It was indeed a moment of supreme satisfaction [for Black], one of the highlights of Black's  years on the Court."3
On the 35th anniversary of the Gideon decision, it seems to me appropriate to remember Abe Fortas and Hugo Black and to recall their respective contributions to this significant case.
Measured by any standard, the man appointed by the Supreme Court to represent Gideon was one of the best lawyers of his time. Fortas was a superlative legal craftsman -- an artist in the law. Following his graduation in 1932 from Yale Law School, where he was a student of legendary excellence, and a short tenure as a Yale professor, Fortas came to Washington to work in the government. It was the beginning of the New Deal. For thirteen years, from 1933 to 1946, Fortas was a government lawyer. He worked with Jerome Frank in the Agricultural Adjustment Administration; with William O. Douglas at the Securities and Exchange Commission; and with Harold Ickes at the Department of Interior. At age 32, Fortas was appointed Under Secretary of Interior. He became justly renowned during the Roosevelt era as one of the outstanding lawyers in the government.4
Following the end of World War II, Fortas formed a private law firm in Washington, with Thurman Arnold and Paul Porter. In private practice, Fortas advised clients with antitrust and securities problems and in matters involving various federal administrative agencies and Congress. He also functioned as counsel in corporate transactions and commercial litigation.
Fortas appeared in courtrooms throughout the country in pre-trial proceedings and as an appellate advocate. However, he was not a specialist in the criminal law. His office practice rarely involved criminal matters. Although he was not a trial lawyer in criminal cases, Fortas was deeply interested in criminal law issues. As a lawyer and subsequently as a judge, he played a major role in three of the most significant criminal law decisions of the past half century.
In 1953, he was appointed by the United States Court of Appeals for the District of Columbia Circuit to represent the appellant in the Durham case.5 He urged the Court of Appeals in that case to reform the insanity defense in criminal cases. As of the 1950s, the standard of responsibility applied by most American courts where the accused invoked the defense of insanity was whether the defendant knew the difference between right and wrong at the time of the offense (the M'Naghten rule).6 The test had been formulated by the House of Lords in 1843. It was an obsolete test that antedated the transformation in psychiatry inspired by Freud and others.
Fortas urged the Court of Appeals to repudiate that test and to formulate a rule that would take account of developments in psychiatry and allow psychiatrists to testify about the defendant's mental condition in a meaningful way.7
In Durham, the Court of Appeals jettisoned the right and wrong rule and established a new standard of criminal responsibility: "[A]n accused [person] is not criminally responsible if his unlawful act was the product of mental disease or defect."8 The court's opinion, written by Judge David L. Bazalon, provoked a nationwide debate concerning the appropriate standard of criminal responsibility that continues to this day.
In 1967, when he was an Associate Justice on the Supreme Court, Fortas wrote the Court's opinion in the Gault case, a significant decision relating to the procedures to be followed in juvenile court proceedings.9 One observer of the juvenile courts has written that because of Gault, "juvenile courts throughout the nation were transformed by the simple notion that children should not be convicted of crimes without evidence of their guilt, without fair trials and lawyers and the chance to face their accusers. The way in which society dealt with its troubled youth had forever changed."10 The Durham, Gault, and Gideon decisions bear the imprint of Abe Fortas.
Shortly after he was appointed by the Supreme Court to represent Gideon, Fortas asked me to assist him in researching the issues and writing the brief. I was aided by an associate in our firm, Ralph Temple, and by John Hart Ely, a third-year student at the Yale Law School who was spending the summer as a law clerk at Arnold, Fortas & Porter. Temple went on to become a prominent civil liberties lawyer, and Ely is now a distinguished constitutional law scholar and was, for a time, Dean of the Stanford Law School.11
The task Fortas set for himself as an advocate in Gideon was to convince the Supreme Court to rule that every person in this country who is accused of a serious crime is entitled to a lawyer without regard to the circumstances of the case. Moreover, Fortas wanted to persuade all of the Justices to endorse that principle.
He confronted the hurdles of adverse precedents and deep division within the Supreme Court concerning federalism and the scope of the Fourteenth Amendment. The Sixth Amendment guarantees the right to assistance of counsel, but the Court had ruled that provision is applicable only to federal criminal prosecutions. The precise issue presented by Gideon was whether the states are obligated by the Due Process Clause of the Fourteenth Amendment to provide counsel to an indigent defendant in all felony cases. In other words, does the Fourteenth Amendment incorporate the Sixth Amendment?
In the early 1960s, there was a great ongoing debate within the Supreme Court concerning the application of the Bill of Rights to the states under the Fourteenth Amendment. The issue that divided the Court was whether, pursuant to the Fourteenth Amendment, all of the Bill of Rights, or only some of them, limit state power. The challenge confronting Fortas was to convince those Justices who were reluctant to expand the scope of the Fourteenth Amendment to rule that due process requires the states to provide a lawyer to an indigent defendant in every felony case, and not only in cases where there are "special circumstances."
In practical terms, the issue was whether the Supreme Court should require the states to incur the costs and the responsibility of furnishing a lawyer to penniless defendants in all felony cases.
One of the first questions Fortas put to us was: How do we convince the Court that a ruling requiring the appointment of counsel in all state criminal cases would not be a radical step? The Supreme Court had decided in 1938 that under the Sixth Amendment the federal government is required to furnish an indigent defendant with counsel in every federal prosecution for a felony.12 The Court had also ruled that the states are obliged to provide a lawyer to the defendant in every state criminal prosecution involving the death penalty.13 But the Court had refused to extend the right to counsel to prosecutions in the state courts for non-capital crimes, even to cases involving charges of serious felonies.
In 1942, the Court had ruled in Betts v. Brady,14 a case involving prosecution for robbery in a Maryland court, that the states are required to furnish a lawyer to an indigent defendant only if the case involves "special circumstances," such as a youthful or mentally retarded defendant who is deemed to be incapable of defending himself. That was the law at the time of the Gideon case.
We ascertained that most states had already made provision by 1962 for the appointment of counsel in all felony cases, either by state constitutional provisions, statute, or judicial decisions and court practice. There were only five states -- Alabama, Florida, Mississippi, North Carolina and South Carolina -- that did not provide for the appointment of a lawyer for indigent defendants in all felony cases. Thus, it followed that a decision by the Supreme Court that the Fourteenth Amendment required the appointment of a lawyer by the states in all serious criminal cases would not be a revolutionary change.
The insight that Fortas had on the problem of federalism was that the "special circumstances" test was a doctrine that should be rejected even by those Justices who were particularly sensitive to claims of states' rights and were reluctant to expand the Fourteenth Amendment. Fortas pointed out that in nearly every case following a conviction in a state court where the defendant had not been represented by a lawyer, a habeas corpus petition would be presented to a federal judge by the prisoner seeking review of the state court's judgment as a denial of due process because of the absence of counsel. What could be more of an irritant to state court judges, Fortas asked, than to have federal judges review and set aside their decisions on a case-by-case basis under so ambiguous a standard as "special circumstances?" As Fortas stated in his brief, this process was "ad hoc and post facto" -- that is to say, it was a case-by-case review of the state courts under a vague test and after the fact.15
In the brief for Gideon that he submitted to the Supreme Court, Fortas' argument was essentially simple: An accused person cannot effectively defend himself. Without a lawyer, the defendant cannot properly evaluate the legality of his arrest, he cannot determine the validity of the indictment, whether a search and seizure has been lawful, or whether a confession is admissible. He cannot determine whether he is responsible for the crime charged or for a lesser offense. At the trial, the defendant is not qualified to make objections to evidence or to cross-examine witnesses. He is unable to act as a lawyer would in the sentencing process. In short, the assistance of a lawyer is essential to a fair trial and, accordingly, is required by due process of law. It was an elegant brief.
Justice Douglas described Fortas' oral argument in these words:
Abe Fortas made a powerful argument. His advocacy was a skillful combination of the evolution of state laws, the practical impact of the old rule on criminal administration, and the service of the Due Process Clause of the Fourteenth Amendment in conditioning the procedure of law enforcement at the state level.16
Three years after his argument in Gideon, Fortas was appointed to the Supreme Court by President Johnson. His appointment was widely acclaimed, and he was speedily confirmed by the Senate. In 1968, his nomination by President Johnson to be Chief Justice was approved by the Senate Judiciary Committee, but his confirmation was blocked by a filibuster, and Fortas then asked the President to withdraw the nomination.17 It was only the second time in the country's history that the Senate refused to confirm the President's nominee to be Chief Justice.18 A year later, in the spring of 1969, Fortas resigned his seat on the Court following publication of an article in Life magazine describing Fortas' relationship with Louis Wolfson, a financier.19 I view Fortas as a tragic figure, but his extraordinary brief and argument in Gideon are exemplars of the art of advocacy, and his great contribution to that case should be remembered and honored.
In his biography of Justice Black, Roger Newman describes the atmosphere at the Court on the morning of March 18, 1963, when the decision in Gideon was announced:
When [Chief Justice] Warren called on him on the bench, he [Black] leaned forward and spoke in an almost folksy way, reading sections of his opinion. Happiness, contentment, gratification filled his voice."20
It was a wonderful moment for Black. Twenty-one years earlier, Black had dissented (together with Justices Douglas and Murphy) when the Court had ruled in Betts v. Brady, by a vote of 6 to 3, that the states were not required to furnish counsel in all cases to an indigent defendant. Black's short dissent stressed the unfairness of convicting persons who lacked the financial ability to employ a lawyer:
A practice cannot be reconciled with "common and fundamental ideas of fairness and right," which subjects innocent men to increased dangers of conviction merely because of their poverty.21
Black said at the outset of his dissent that the Court was not required to rule that no trial could be fairly conducted where the accused was not represented by a lawyer. Two decades later, in Gideon, it was his position that the assistance of counsel was required in every case.
Justice Black believed passionately in the Bill of Rights. He was a fighter, and he had battled tenaciously and with a singleness of purpose for two decades to convince the Court to extend to the states each of the rights and liberties guaranteed by the Bill of Rights. In one of his most celebrated opinions, his dissent in 1948 in Adamson v. California, 22 Black maintained that the Fourteenth Amendment was originally designed to make all of the Bill of Rights applicable to the states. The Court majority rejected that conclusion. In the years that followed Adamson, the Court gradually had ruled, in a series of decisions, that a number of the rights guaranteed by the first eight amendments were made applicable to the states by the Fourteenth Amendment.
By 1963, the list of such incorporated rights included the rights of free speech, press, and religion covered by the First Amendment;23 the protection against unreasonable searches and seizures guaranteed by the Fourth Amendment;24 and the Eighth Amendment's prohibition against cruel and unusual punishment.25 In Gideon, Black was the spokesman for a unanimous court, holding that the right to counsel, guaranteed by the Sixth Amendment, is a fundamental right essential to a fair trial and is made obligatory upon the states by the Fourteenth Amendment.
There are two separate themes in Black's opinion in Gideon. One is the concept of a fair trial and due process of law. The other is the idea of equality of justice, or equal protection, for all persons regardless of economic circumstances.
First, Black's opinion reflects the view that in our adversary system of justice an individual needs a lawyer to prepare and present his defense. Justice Black knew from personal experience how important it is to have a lawyer at one's side in the courtroom. He had been a county prosecutor, a police court judge, and a practicing lawyer in Birmingham, Alabama -- a tough and violent steel town in the early years of the century. He had defended African Americans who were detained in the city jail longer than their sentences required. When he was the prosecutor for Jefferson County, he fought against third-degree measures used by the police to extract confessions. As he stated in his opinion in Gideon, "reason and reflection require us to recognize that in our adversary system [a person] cannot be assured a fair trial unless counsel is provided for him."26
Second, his Gideon opinion reflected Black's profound empathy for those who are poor and disadvantaged. He had vivid memories of the pervasive poverty and racism he witnessed growing up in Clay County. As a lawyer, he represented striking coal miners, and as a prosecutor he attacked unfair settlements made with injured workers by insurance companies. When he ran for the Senate in 1926, Black campaigned on the theme: "I am not now, and have never been, a railroad, power company, or a corporation lawyer. I am not a millionaire."27 It was simply unacceptable to him that a man should be denied a fair trial because he was poor. For Hugo Black, a lawyer in a criminal case was a necessity, not a luxury.
The late Paul Freund, professor of constitutional law at Harvard, wrote in 1967 of the profound impression that Justice Black had made on the law of our time. Freund stated:
He is without doubt the most influential of the many strong figures who have sat [on the Supreme Court] during the 30 years that have passed in his justiceship. He has exhibited to a singular degree an intense moral commitment, concentrated through the focus of an unwavering vision, and brought to bear with immense prowess.28
Of all the men and women in public life during my time in Washington -- I have been a lawyer here since 1950 -- I count Hugo Black as one of the most admirable, and I regard the Gideon decision as one of his greatest legacies.
Constitutional Law Milestone
It is true that the high hopes entertained by Fortas and Black in 1963 have not been completely fulfilled. At the time, many of us did not fully appreciate that it is not enough to guarantee that a defendant has a lawyer at his side; the critical questions are whether that lawyer is qualified to try a criminal case, and whether the accused has the financial resources to conduct an investigation and to retain expert witnesses. Much remains to be done if the right to counsel is to be made meaningful.
However, I think it is significant that the Gideon decision has been immune from attack even by the most severe critics of the Warren Court. Some critics have urged the Supreme Court to limit, or to overrule, various decisions rendered in the 1950s and the 1960s concerning the rights of accused persons, such as the exclusionary rule with respect to evidence obtained by an illegal search and seizure. But no responsible voice is heard today urging that the Gideon decision should be overturned. Even the most extreme critics of the Warren Court do not say that it is acceptable to deny assistance of counsel to an indigent person charged with a serious criminal offense. The right to counsel in a criminal prosecution is acknowledged to be a fundamental right. The Gideon case stands as a milestone in American constitutional law because it affirms a principle that is basic in a free and just society.
1. 372 U.S. 335 (1963).
2. William O. Douglas, The Court Years 1939-1975 at 187 (1980).
3. Roger K. Newman, Hugo Black 528 (1994).
4. There are two biographies of Fortas: Laura Kalman, Abe Fortas (1990), and Bruce Allen Murphy, Fortas, The Rise and Ruin of a Supreme Court Justice (1988). In addition, a short biography of Fortas was written during his lifetime. Robert Shogan, A Question of Judgment, the Fortas Case and the Struggle for the Supreme Court (1972).
5. Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954).
6. M'Naghten's Case, 4 St. Tr. N.S. 847, 8 Eng. Rep. 718 (1843).
7. Supplemental Brief for Appellant on Reargument, Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954).
8. 214 F.2d at 874-75.
9. In re Gault, 387 U.S. 1 (1967).
10. Edward Humes, No Matter How Loud I Shout 25 (1996).
11. See John Hart Ely, Democracy and Distrust (1980) and War and Responsibility, Constitutional Lessons of Vietnam and Its Aftermath (1993).
12. Johnson v. Zerbst, 304 U.S. 458 (1938).
13. Powell v. Alabama, 287 U.S. 45 (1932).
14. 316 U.S. 455 (1942).
15. Brief for the Petitioner at 9, Gideon v. Wainwright, 372 U.S. 335 (1963).
16. William O. Douglas, The Court Years 1939-1975 (1980), at 187.
17. See Kalman, Abe Fortas 355 (1990).
18. In 1795, the Senate rejected President Washington's nomination of John Rutledge to be Chief Justice.
19. For an account of the circumstances surrounding Fortas' resignation from the Court, see Kalman, supra note 17, at 359-378.
20. Roger K. Newman, Hugo Black 528 (1994).
21. Betts v. Brady, 316 U.S. at 476.
22. 332 U.S. 46, 68 (Black, J. dissenting).
23. See e.g., Everson v. Board of Education, 330 U.S. 1, 15 (1947).
24. Mapp v. Ohio, 367 U.S. 643 (1961).
25. Robinson v. California, 370 U.S. 660 (1962).
26. Gideon v. Wainwright, 372 U.S. at 344.
27. Roger K. Newman, Hugo Black 108 (1994).
28. Paul A. Freund, On Law and Justice 222 (1968).
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