May 13, 2013 | by Joshua J. Friedman
In the late 1950s, the U.S. Supreme Court was as controversial and obscure as it had ever been. Little understood in the best of times, it had recently outlawed segregated schools over the objections of Southern states and expanded protections for criminal suspects—protections that Congress was already scheming to revoke. More than ever, the public needed the press to explain the workings of the court. But the newspapermen of the day were barely equipped for the task: they lacked the legal expertise to properly interpret a Supreme Court opinion, if they ever read one, and wire-service reporters habitually wrote their stories on the court’s opinions before they were even issued.
Yet while the justices resented being portrayed as “a mysterious body operating behind a veil of secrecy,” as Chief Justice Earl Warren once grumbled, they made little effort to communicate with the public. They generally refused to speak to the press, and until the 1920s, they delayed the distribution of printed copies of their opinions, forcing even the most diligent reporters to base their stories on a single hearing of the opinion from the bench. (And CNN and Fox News know how accurate first impressions can be.) “All of official Washington except the Supreme Court is acutely conscious of public relations,” wrote the New York Times’s Supreme Court correspondent Anthony Lewis in 1959. “The Supreme Court is about as oblivious as it is conceivable to be.”
Lewis was thirty years old in 1957 when it fell to him to justify the ways of the Supreme Court to men. A Harvard graduate who had already won a Pulitzer for national reporting, Lewis was hired by the Times’s Washington bureau chief Scotty Reston, who hoped to improve the paper’s coverage of the court. To do the job right, Lewis would need training, so Reston sent him back to Harvard on a one-year fellowship at the law school. Lewis would have made his mark simply by learning enough to parse opinions and report them. But he went further, writing eloquent articles that teased out larger truths from legal minutiae. Professorial by nature, Lewis treated newspaper readers to a continuing legal seminar over their morning coffee. After Lewis died this past March, at the age of eighty-five, he was eulogized as having transformed American legal journalism.
When Lewis began writing for the Times, he knew that to win readers’ attention, he would first need to dispel the notion that the justices decided cases out of political bias. “The difficulty of the Supreme Court’s work is insufficiently appreciated by either its right-wing critics or its liberal admirers these days,” wrote Lewis. “They see cases only in terms of Who Wins.” To reorient the conversation, Lewis filled his writing with the details of process, tracing the steps by which cases are considered and stressing the imagination and intellect each element requires. “Assigning opinions is an art all its own,” writes Lewis, and quotes Justice Felix Frankfurter’s description of Chief Justice Charles E. Hughes: “To see him preside was like witnessing Toscanini lead an orchestra.”
Such quotations were part of Lewis’s method, too. He shared them not to prove that the justices were sages but to expose readers to first-person reflections about the job. Some capture the justices’ ideals for themselves, such as the federal judge Learned Hand’s suggestion that the richness of constitutional questions demands a deep humanistic education: “at least a bowing acquaintaince with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant.” And some show the justices coming to terms with practical limitations, such as Justice Robert Jackson’s concession that “it is easily demonstrated that no justice could read more than a fraction of the printed matter filed with the Court each year … As to his individual labors with this mountain of papers, each justice is the keeper of his own conscience.”
The hallmark of Lewis’s writing was its humanity, bestowed equally on those who sought justice and those who administered it. In 1962, Lewis found his opportunity to combine the law, the court, and human strivings in a full-length work. His subject was Clarence Earl Gideon, an indigent Florida prisoner whose handwritten petition to the Supreme Court ultimately led to the right to court-appointed representation for all criminal defendents. Lewis wrote a book called Gideon’s Trumpet during a four-month newspaper strike. It was serialized in The New Yorker in 1964 and published by Random House later the same year. In 1980, the Hallmark Hall of Fame adapted it into a TV movie starring Henry Fonda.
In Gideon’s Trumpet, Lewis applies his familiar methods, beginning in process mode with the story of Gideon’s petition arriving at the Supreme Court building. But at the center of the book lies an essential question: How does the law see a human being? Gideon’s petition identifies him as Florida state prisoner no. 003826, but Lewis tells us more: those who knew Gideon considered him “a perfectly harmless human being, rather likeable, but one tossed aside by life. Anyone meeting him for the first time would be likely to regard him as the most wretched of men.” As Lewis devotes chapters to constitutional principle and judicial procedure, he fleshes out Gideon’s humanity using court transcripts and Gideon’s own letters. In one letter, Gideon answers his lawyer’s request for a short biography:
You will understand that due to my limited education and also to the utter folly and hopelessness [of] parts of my life, it will be doubthful [sic] if I can put it down on paper with any reasonable comprehension. I will not be proud of this biography, it will be no cause of pride; nor will it be the absolute truth. I can not remember or desire to remember that well … Also being only a human being I will try though I know I can not, to justify myself through this outline.
Thanks to Lewis’s literary and empathetic gifts, the reader begins to appreciate the law as more than an abstraction. It is for this reason that Gideon’s Trumpet has inspired both law students and writers ever since. “Probably no one can adequately appreciate the need for a lawyer in a criminal case unless he is himself a defendant,” Lewis wrote. “The sense of loneliness, the confusion of guilt and outrage, the feeling that one is caught up in machinery he does not understand—all these emotions well up in a person who finds himself arrested for even a moderately serious traffic offense.”
By appealing to the reader’s emotions, Lewis exposed the moral center of the law. He had the good fortune to be covering the court at a moment when its social attitudes were in tune with his: the Warren Court not afraid to insert itself into national matters of civil rights, fair representation, and criminal justice. “Slowly but perceptibly,” wrote Lewis, “the Court is taking up the role of conscience to the country.” If Lewis envied the legal profession anything, it was the power to take action possessed even by the smallest lawyer in the lowest court. “Perhaps the fact that he must remain an outsider,” Lewis told a Harvard Law School audience in 1960, “makes the newspaperman believe that lawyers should seize the opportunities for public service given them by their training and status.”
But Lewis was more of an insider than any Supreme Court correspondent before him. The justices had kept their distance from the press in part because they didn’t expect to be understood, but in Lewis they finally saw someone worthy of their trust. “I can’t believe what this young man achieved,” Justice Frankfurter told Scotty Reston. “There are not two justices of this court who have such a grasp of these cases.” Other reporters would follow Lewis down the path to legal reporting by way of law school—Linda Greenhouse, Jeffrey Toobin, Dahlia Lithwick, Adam Liptak—and they (combined with online access to primary sources) would give the public the clearest view of the court in history. This is good news, because of all our institutions, the Supreme Court is the likeliest to restore faith in American government.
“The wonderful thing about the Supreme Court,” wrote Lewis at the end of seven years in his post, “is that it does its work. It decides, as it has to decide. There has never been a Rules Committee to save the Justices the embarrassment of having to declare their positions on tough problems.” He continued:
There they are, the nine of them, listening to a lawyer, answering back, working over the issues themselves. A visitor seeking the personal element in Washington decision-making is not likely to find it quickly in the great downtown bureaucracies, where men are cushioned by systems. He should go sit in the courtroom of the Supreme Court. There is the last stronghold of personal responsibility for decision.
Today, the justices work on, and thanks to Lewis, we all have a seat in the courtroom.
Joshua J. Friedman, a former editor of the Atlantic and Boston Review, is a writer in New York.