January 10, 2009

Another obituary: Charles Morgan Jr., the lawyer who argued "one person, one vote" in the Supreme Court.

The civil rights lawyer who won Reynolds v. Sims has died at the age of 78.
In 1962, Mr. Morgan and other young Alabama lawyers filed a lawsuit to force the reapportionment of the Alabama Legislature. The rural counties of south Alabama had many times the voting strength of the more urban north, allowing the old planter elite to control the Legislature. In 1964 the Supreme Court ruled in the case, Reynolds v. Sims, and ordered a more equitable apportionment. Along with similar cases from other Southern states, Reynolds established the doctrine known as one-person-one-vote, which increased the political power of African-Americans and urban voters.
You can listen to the argument here. (It's a 3-hour argument, and Morgan goes second, so settle in.)

Morgan also won the case the kept Muhammad Ali from being drafted and led the ACLU effort to get Richard Nixon impeached. He also got in trouble with the ACLU in 1976, when he opposed Jimmy Carter and said, stupidly, "I could never vote for anybody with a Southern accent. That’s bigotry, and that makes you a bigot."

Here's a 1979 review of Morgan's autobiography "One Man, One Voice" (a review written by Howell Raines):
What is missing here is a more thoughtful discussion of how hostility toward the rich and the well-favored went into the making of the passionate populist that Mr. Morgan always has been in his civil rights practice.

Mr. Morgan is hard on lawyers, too, especially those who practice what he calls "Frankfurterism" — a coinage reflecting Mr. Morgan's view that the late Associate Justice Felix J. Frankfurter "could always find legal reasons for refusing to do the right thing." The author's hero is the late Associate Justice Hugo Black, the Alabamian who helped change a cautious court dominated by Frankfurter into an aggressive defender of First Amendment rights.
I typed out that passage — it's a PDF that wouldn't let me cut and paste — because there are so many things about it that interest me. Most notably, Raines, writing in 1979, exhibits the attitude toward the Supreme Court that I saw when I was a law student at NYU from 1978 to 1981. I remember one lawprof who wanted us law review editors to write about the demise of Frankfurterism. There was a great confidence that the vigorous enforcement of constitutional rights was mandatory and notions of judicial restraint were backward and, in fact, bigoted.

Note, too, how judicial activism seems like a completely positive and appropriate attitude for the Court. The court should be "aggressive" and "a defender." That makes the Court sound like an activist lawyer. And "cautious" is pejorative. Today, the Justices often fight over different kinds of restraint, and no one tries to look like an activist. The norms are entirely different.

And look at how Raines conceives of activism specifically in terms of the First Amendment. You don't see that anymore. Those who like judicial activism today emphasize privacy rights, due process, and equal protection. Back then, freedom of expression was the core value. When and how did that change? I can't answer that question in a blog post, not this one anyway.


downtownlad said...

Lucky it was decided in 1962. This case would have zero chance in today's court.

Roger Sweeny said...

Back then, freedom of expression was the core value. When and how did that change?

When people are trying to shut you up, free expression is a core value. When you're trying to shut other people up ... not so much.

traditionalguy said...

Freedom of expression is still THE core value all over the world. Mark Steyn and friends have recently fought the good fight in Canada, and the Bloggers must be willing to fight it here in the USA . There are no more Newspapers or TV networks standing up against censureship today. Freedom is the freedom to speak rejevant questions. Nikta Kruschef was visiting the USA once and was asked by a reporters some intelligent questions. This Stalinist trained tyrant repeated over and over "That question does not arise." When question no longer are even permited to arise you have at that moment become a slave whether in a political, educational or religious community. Blog away sweet Professor.

downtownlad said...

Well - let's not forget that Bush moved FBI agents from tracking down terrorists to tracking down porn producers (consenting adult type porn).

The vast majority of those who want to repress expression comes from the Right. These are the same people (and I'm sure traditionalguy was one of them) that called Proposition 8 opponent protesters "terrorists" for marching peacefully.

Joe said...

He also got in trouble with the ACLU in 1976, when he opposed Jimmy Carter and said, stupidly, "I could never vote for anybody with a Southern accent. That’s bigotry, and that makes you a bigot."

This appears a bit garbled. From the NYT:

Mr. Morgan’s growing disaffection with the national headquarters of the A.C.L.U. came to a boil in early 1976. At a Washington party, a New York liberal told him that he opposed Jimmy Carter of Georgia for president because, he said, “I could never vote for anybody with a Southern accent.” Mr. Morgan replied, “That’s bigotry, and that makes you a bigot.”

The obit there also notes some of his later actions, including against the EEOC and for smoking rights.

Joe said...

On free expression, it's still important, in part because libertarian sorts like Justice Kennedy help it along.

Cedarford said...

traditionalguy said...
Freedom of expression is still THE core value all over the world.

Not true. Basic security for your family, as a condition to allow others to rule you willingly, is THE core value. THE basic social contract.
Without that - democracy, "due process", care of the indigent, "freedom of expression", and other so-called "rights" are luxuries dispensed with in a bargain with the State to get the necessary, minimum level of security people need back again.

traditionalguy said...

Like I said, you are at that moment enslaved. As for governments allowing basic security, that is what the Second Amendment in The Bill of Rights is a safe guard to. Your Political life {governed behavior} is free for you for only so long as you still have and exercise your free speech.

Pastafarian said...

"one person, one vote" -- what an ultraconservative, even reactionary, concept. There were hundreds, maybe thousands, of civic-minded Ohioans who each voted 50 or 100 times in the last election. Thank goodness for ACORN and Secretary of State Brunner.

John Thacker said...

I have always found Reynolds v. Sims hard to square, in that it bans states having bicameral legislatures set up exactly the same as the US Congress, with one or two legislators per county. Certainly there are theories of sovereignty that explain it, and certainly the cases involved were outrageous, but it also was hard to take Sen. Biden seriously when he was talking about the outrage of Justice Alito writing a law review article questioning Reynolds v. Sims when Delaware and Sen. Biden wields power all out of proportion to one-man one-vote.

Simon said...

To be fair, he was only doing his job and the result can't be held against him; I find it hard to believe that the case would have come out the other way no matter who had argued it. A dreadful mistake with far-reaching consequences, though, and one that is impossible to fix now.

john mccarthy said...

Chuck Morgan was also my attorney. His instincts scored again. If Chuck were alive today, he would be sinking his teeth into the following, big time. There would be White Collar folk headed for the hills, for sure. Just ask Camille.


Everyone has a Guardian Angel; mine was name Chuck Morgan.