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By Root 1868 0

resources or attachments. He had been charged with breaking into a poolroom, in Florida. Gideon said he was innocent. Nobody believed him. He insisted on a lawyer. In Florida, he was told, he had no such right; if he could not pay, that was that. Gideon was convicted, and tried to appeal on his own, writing arguments in pencil on lined sheets of paper. The Supreme Court agreed to hear his case; Abe Fortas, a prominent Washington lawyer (later a Supreme Court justice) argued for Gideon.27 He argued well; but more important, it was a receptive court. In the event, Gideon won his case. The Supreme Court overruled its older line of cases, and greatly expanded the “right to counsel.” Lawyers, wrote Justice Black, “are necessities, not luxuries.” The “noble ideal” of a fair trial “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

These dramatic decisions of the Warren Court proved to be quite controversial. The decisions got a lot of publicity; for courts, unlike Broadway, not all publicity is good publicity. The Court was criticized, sometimes hysterically, on the grounds that it was perverting the meaning of the Constitution, tilting the scales too far in the criminal’s direction. These decisions (and the Court’s decisions on race) so incensed some conservatives that they talked about impeaching Earl Warren. Nothing came of this.

There have been many turns of the wheel since the 1950s, but these decisions have proved to be durable, perhaps surprisingly durable. The Burger and Rehnquist Courts have refused to extend them, to be sure; and they have nibbled about on the edges. There is controversy about how far the nibbling has gone. No landmark decision, however, has been actually overruled—at least not yet.

Scapegoating of the courts continues. It is easy to dump the blame for the crime explosion on liberal courts like the Supreme Court of Earl Warren. Court-blaming was by no means a new idea. In 1937, Sam B. Warner and Harry Cabot, of the Harvard Law School, referred to the “widely held” opinion that “trial procedure gives the criminal defendant an unfair advantage over the prosecution.”28 The howls of outrage became much more strident in the fifties; by then the crime problem had certainly gotten worse. But the dogs were, in a way, baying at the wrong moon. Certainly, the Supreme Court took a bold stance. But it is good to remember that there were parallel movements in the state courts, too; and even state legislatures played a part. The Gideon case made very little difference in the vast majority of the states. They were already providing free counsel—some of them for almost a century. (See chapter 11.)

After Warren Burger replaced Earl Warren, in 1969, and the Supreme Court seemed to be standing still, or moving backwards (from the liberal viewpoint), a number of state high courts charged boldly ahead on their own. In some cases, they outdid the federal courts. If a state court could find an “independent state ground” for a decision (its own constitution, for example), it could, in effect, ignore federal doctrine. The story of state developments underscores the point, if underscoring is needed, that social change—slow, glacial movement in the normative climate—was the real shaper of legal doctrine, not particular personalities on the bench; least of all technical legal argument. The roots of changes can be found in the broader “rights revolution,” whose fulcrum lay outside the courtroom door.

There is an enormous literature, of praise and invective alike, about Gideon, Miranda, and the other landmark decisions of the Warren era. In some ways, the debate over Miranda and like cases has a kind of chicken-or-egg flavor. Thousands of nineteenth-century tramps and thieves were beaten, coerced, arrested, thrown into jail, all without lawyers. They confessed after long stretches of the third degree, and almost nobody uttered a murmur of protest—certainly not the tramps and thieves; but neither did their advocates, if they had any. The legal culture has profoundly