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The Supreme Court -- Transcript

A Nation of Liberties

NARRATOR
The Second World War changed America in every way. It cast Americans as defenders of liberty worldwide at a time when six newly appointed justices were just beginning to find their way on the Supreme Court.

KOBYLKA
It's a time of a rising sense of defending the values of Western civilization, in a sense, defending the product of the Enlightenment against the totalitarian hordes that Hitler represented.

GILLMAN
The United States enters this war against fascism, Nazism and totalitarianism. And what happens in the course of that engagement was that America begins to define itself in terms of that conflict.

NARRATOR
The war changed American ideas on individual liberty and government power. It showed a whole generation the wider world, and convinced that generation there was nothing America couldn't do-the most powerful nation the world had ever seen-and because of our freedoms, because of our rights.

Over the next quarter century, that belief would push the nation, and its Supreme Court, to a new agenda, onto unexplored terrain.

BISKUPIC
This a watershed time in the Court's history. You have World War II. You have McCarthyism. You have the Cold War. You have the civil rights struggles. There's tension between national security, national identity, free speech, individual rights.

And it falls into the lap of these nine justices to sort it all out. They don't move in a straight line. They move in fits and starts. They have to backtrack, but eventually we really have a remade Court and a remade idea of individual rights and civil liberties in America.

NARRATOR
This new idea-a nation of liberties-would find an unlikely champion. Justice Hugo Black was a prickly man, certain of his own rectitude.

He was among the most driven men to ever sit on the United States Supreme Court, but he called himself just an ol' hillbilly from Clay County, Alabama.

NEWMAN
Oh, it was a world that we can barely associate with today-isolated Alabama hill country. People were considered worldly if they went outside the county. And as a kid he went to the only real entertainment there was. And that entertainment was the courtroom up in the Clay County courthouse.

NARRATOR
Hugo Black never finished high school or college. He got himself admitted to the University of Alabama law school, but he mostly taught himself the law . . . along with everything else. He'd read nearly a book a day for more than fifty years. He wanted to know everything. Ambition was the other constant. By his late 20's he'd made himself a famous trial lawyer in Birmingham . . . then, for a couple of years, a crusading prosecutor.

NEWMAN
He was enormously successful. He once estimated that he had over two thousand trials and he remembered losing about twenty. He would cry when he was in a courtroom if necessary. He could manufacture crying. Although he would always qualify it: Hugo Black doesn't cry for less than twenty-five thousand dollars.

NARRATOR
Black turned his dramatically-won courtroom reputation to political capital with one giant, somewhat surprising leap into the U.S. Senate. By 1937, he was in his second term-champion of the little guy, and a spur for radical New Deal policies-when F.D.R. plucked him for the court.

NEWMAN
FDR drops a bombshell: Hugo Black. An anomaly, an intellectual, leftist liberal from the South. You couldn't dream it up. But this was only the first of several things we couldn't dream up.

Black was confirmed by the Senate handily, sixty-three to sixteen. Takes a long delayed trip to Europe.

NARRATOR
As Black sailed for Europe, a reporter left Pittsburgh to investigate rumors that had been whispered about at Black's confirmation. It was a long shot-a Northern newspaperman trying to penetrate the secrets of the society that ruled the South. But he got his story.

REPORTER
Tell us Justice Black - are you a member of the Ku Klux Klan?

HUGO BLACK
What do you want me to tell you that for?

REPORTER
The ex-Senator ducts a direct answer and refuses to commit himself to the press.

NEWMAN
Of course he was a member. It was the only way he can get elected. Without the Klan he would have been a minor candidate with very little money. It was his campaign organization in every way except name. After all, most people's neighbors on one side or the other were members. Fifteen thousand of the thirty-two thousand white men in Birmingham were members of that Klan unit.

LAW
He would go to Klan meetings. He would speak. He would put on the regalia. He would march in some of their parades or their demonstrations. So, he was a fairly active member.

NEWMAN
Crossed swords lay on the Bible on the altar and he read the oath: 'I swear that I will most zealously and valiantly shield and preserve by any and all justifiable means and methods white supremacy.'

HUGO BLACK (Radio Address)
Ladies and Gentlemen...An effort is being made to convince the people of America that I am intolerant, and that I am prejudiced. These insinuations....

NARRATOR
He would make one statement-a radio address-holed up at a friend's house in the suburbs of Washington. This would be the summation in his greatest trial-his own-and before the grandest jury. The audience for Hugo Black's speech would be the second-largest in history, behind only the abdication of King Edward VIII.

HUGO BLACK (Radio Address)
. . . I number among my friends many members of the colored race. Certainly, they are entitled to the full measure of protection accorded by our Constitution and our laws. . . I did join the Klan. I later resigned. I never rejoined.

LAW
He never denounced the Klan. He never gave a reason why he joined and why he resigned. He says I have no problems with Jews or African Americans. I count them as my friends. And that was it.

NEWMAN
He could not come up with a good reason why he joined the Klan. The only reason, politics was too obvious, too crude. The joke in Washington was that he wouldn't have to buy a new robe. He can dye his white one black.

NARRATOR
President Roosevelt ignored the calls for Justice Black's resignation, and Black stood his ground. He wasn't going anywhere. But the question remained: would Justice Hugo Black be willing to protect the rights of all?

There would be no quick answer because in the 1940s, outside of economic liberties, the Court had almost no history on protection of individual rights.

It started with children who were kicked out of school-because in the run-up to war, the schools were at work building patriotism. In Minersville, Pennsylvania, all kids had to salute the flag.

BISKUPIC
There were two little kids there, Lillian Gobitis and William Gobitis. Lillian was twelve, William was ten. They were Jehovah's Witnesses, and it was against their religious faith to pay homage in any way to the flag. The Minersville School District said no exceptions, and these children were expelled.

SIMON
So their parents brought suit on the basis of their religious freedom. And they won at the lower courts. And then it came up to the Supreme Court of the United States.

NARRATOR
It was a brand new Supreme Court, remade by five fresh Roosevelt appointees. Black was the first. But the ornament and leading light was to be Felix Frankfurter. He might have been the most famous lawyer in the country, a towering figure in Roosevelt's brain trust.

He was an immigrant, an Austrian boy who landed on Ellis Island at age 12-without a word of English. But he'd dazzled everybody who saw him since, from the Lower East Side to Harvard Law School and beyond.

SIMON
Everybody assumed that Frankfurter would become the leader of the liberal wing of the Court. He was a founding member of the American Civil Liberties Union. He was an early supporter of the NAACP. He defended Sacco and Vanzetti, the two immigrant anarchists. He advised Wilson. He advised Franklin Roosevelt when he was Governor of New York. And of course he became a almost one-man employment agency for the New Deal. They were called Frankfurter's hotdogs.

NARRATOR
Some jurists come to this Court hat in hand. Frankfurter swaggered in. He expected to sweep the court along . . . and he did. He wrote the flag salute opinion for an 8 to 1 majority - and dismissed the plea of the Gobitis children with magisterial certainty.

BISKUPIC
What he says is that maybe the policy isn't one that he would agree with, but the states, legislatures, school districts, have the right to enact it.

SIMON
It's a theme he struck again and again on the Court, and that is it was really the theme of judicial restraint. As long as the legislative and executive branches acted reasonably, the Court ought to find their actions constitutional.

NARRATOR
In this case, as in most others, Frankfurter thought democracy should run its course. If the majority elected a school board, and the school board wanted a flag salute, then everybody must salute.

GILLMAN
It's not that he didn't recognize the value of individual liberty, but he thought that fundamentally. the freedom of the people had to be protected through democratic institutions and not through court-imposed settlements. It's an ethic that is extremely deferential to democratic outcomes, but it turns out that the democracy isn't always as protective of people's rights and liberties as we would like to think.

NARRATOR
Real people had to pay the price for the Court's deference. In this case, Jehovah's Witnesses paid dearly. The Gobitis kids had to be sent away when the family was threatened by vigilantes.

BISKUPIC
When this ruling comes down in 1940, Jehovah's Witness are being you know pulled out of their homes, pulled from their cars, literally tarred and feathered, pushed to do humiliating things like kiss the flag, forced to drink castor oil, and paraded tied up through the streets of these small towns. There was one incident of somebody being kidnapped and castrated. And newspapers across the country were outraged by what happened.

SIMON
Shortly after that, Black, Douglas, and Murphy wrote basically saying they were wrong in Gobitis.

NARRATOR
Black and his fellow justices almost advertised for another flag-salute case . . . and got one in 1943. In Barnette v. West Virginia, the vote was six to three for the Jehovah's Witnesses. And the court held the decision to announce on Flag Day, to signal that a major shift was underway.

GILLMAN
In 1943 is one of the first times in the history of the Court that the Justices come together and embrace a vision of the Constitution that judges could enforce against the political system in the protection of civil rights and liberties. And that transformation is key not only to changing the US Supreme Court, but it's key to changing the country as a whole.

NARRATOR
Frankfurter was left in lone dissent to rage against the majority that abandoned him. "What reason is there to believe that they or their successors may not have another view a few years hence?" Frankfurter wrote. "Is the Constitution to be the sport of shifting winds of doctrine?"

Frankfurter wasn't much judge of character. Hugo Black wasn't about shifting winds or fashions. Where he saw what he though a clear limit in the Constitution, no power-not the government's, not even a democratic majority-could overrule that limit.

KOBYLKA
Black's argument is that the Constitution limits the power or government over individual citizens. The limits are defined by the Bill of Rights.

GILLMAN
From his point of view, his job was to take the literal language of the Constitution and apply it as it was written. In many respects Black is bringing to his analysis that kind of Biblical authority of the importance of the text that, that he grew up with as a child in Alabama.

KOBYLKA
As the Bible is the Holy Word of God, from this tradition, Black and others like him see the Constitution as the Holy Word of the Framers. And that must bind.

McCARTHY
Even if there were only Communist in the State Department, that would still be one Communist too many.

RICHARD NIXON
This microfilm was made for the purpose of transmitting State Department documents to the Soviet Union.

UNKNOWN OFFICIAL
Are you a member of the Communist Party or have you ever been a member of the Communist Party?

GILLMAN
The country as a whole is in the middle of, of the McCarthy scare. There are concerns about China going communist. There is the Korean War. There is a general sense that in this battle between America and communism that we are under siege and there's a lot of panic in the country.

NARRATOR
In New York City, federal authorities charged the leaders of the American Communist Party with violations of the Smith Act.

GILLMAN
The Smith Act makes it a crime for people to advocate the violent overthrow of the US government. But there was no accusation that they were actually engaged in a conspiracy to actually overthrow the US government.

SIMON
What these eleven American Communist leaders had done, so far as the trial record showed, was that they had taught Marxist-Leninist doctrines. Well, under the Smith Act they were convicted for conspiring to advocate the forcible overthrow of the government.

Black had been building on his notion that the freedom of expression was a preferred guarantee under the Bill of Rights. For Black, the First Amendment was really the most important because it was the indispensable to our democratic government.

HUGO BLACK (audio)
Now if a man were to say this to me out on the street, "Congress shall make no law"-that's the first amendment-I would think, 'Amen, Congress should pass no law.'

NARRATOR
The Court voted 7 to 2 to sustain the conviction of the communist leaders, Black and William O. Douglas dissenting.

And through almost a decade that became a tagline-hopeful to liberals, hateful to Communist hunters-'Black and Douglas dissenting.'

GILLMAN
In his dissent in Dennis, Black says the following: 'Public opinion being what it is now, few will protest the conviction of these communist petitioners. There is hope, however, that in calmer times when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.'

NARRATOR
When Black and Douglas stood to defend free speech, they were tagged as Communist sympathizers. FBI Director J. Edgar Hoover opened secret files on both men. He would later wiretap Black's home phone.

Black never complained in public. And he didn't mind writing in dissent. For majority opinions, you might put in language for other justices, to keep them on your side. But in dissent, Black could write exactly what he meant. And that might bear fruit in other cases-five, ten, fifteen years later. Black could play the long game.

NARRATOR
Segregation had been not just custom but law in America for generations. 'Separate but equal' had been blessed by the Supreme Court back in 1896, in Plessy versus Ferguson.

Whites and blacks traveled in separate railroad cars, drank at separate fountains, ate in separate restaurants, attended separate churches and were buried in separate graveyards.

Still, times were changing, and the NAACP lawyers figured they might be able to push the Court to change along with them. It was a long shot, but better than waiting on Congress.

KLARMAN
The South was not a democracy in the 1950s. Only something like 20% of African Americans were registered to vote in the South. White Democrats in the Senate could filibuster to death any civil rights legislation. That was a pattern all the way from the 1920s to the 1950s. One of the profound ironies of 20th century civil rights history is that the Supreme Court was arguably more democratic than Congress and the presidency.

NARRATOR
By the early fifties, segregation was frayed by the war, and torn in spots where the Court had acted. The white primary was outlawed. Housing covenants outlawed. Some graduate and law schools were forced to admit blacks. But the Court was aware that the big fight was still to come: the schools-K through 12-white children and black in the same classroom.

POWE
Southerners assumed that if grade school kids were in a desegregated setting, they'd get to know each other, and they'd get to date each other. And then they'd marry each other. And that was the strongest taboo that the South held.

NARRATOR
Led by Thurgood Marshall and other young lawyers like Robert Carter, the NAACP legal defense fund was running or aiding cases all over the country. The Court picked five and consolidated them into one set of arguments, forever known as Brown versus Board of Education of Topeka, Kansas.

As oral arguments approached, people camped outside the building to assure themselves a seat in the courtroom.

NAACP lawyers Marshall and Carter were up against a formidable adversary: John W. Davis, a former presidential candidate, making the last of his 140 appearances at the Supreme Court.

But his arguments had a familiar ring: separate wasn't necessarily unequal. Blacks should be happy with the way things were. Didn't states have the right to educate their children as they saw fit?

When the three days of arguments were over, Davis was heard to remark: "I think we've got it won, five-to-four, or maybe six-to-three." He figured he had the Chief Justice, Fred Vinson, and his fellow Kentuckian, Justice Stanley Reed. The only justices would give up on for sure were Hugo Black and Bill Douglas.

Still, at the conference after the hearing, the Justices never got to a vote. It was clear there was doubt and disagreement.

KLARMAN
Justice Douglas, in a private memo, said that when the case was first argued, there were only four votes to strike down segregation and there were five justices who were not yet prepared to do that.

Many of the justices thought segregation was profoundly wrong as a personal matter, as a moral matter. They thought segregation was 'Hitler's Creed.' That's how Justice Black once referred to it. But they weren't sure that the law condemned segregation. Precedent was strongly on the side of segregation. Custom had sanctified segregation.

POWE
And who was going to enforce it? Congress couldn't do anything about it. Could the President do it alone? Not if the President's Dwight David Eisenhower, who is decidedly lukewarm on overturning separate but equal.

NARRATOR
The justices scheduled another hearing on the case. But before that could happen, Chief Justice Vinson died of a heart attack. President Eisenhower chose to nominate Earl Warren, formerly the Governor of California. Actually, Ike didn't have any choice. He'd promised Warren the next Supreme Court slot in a deal at the 1952 Republican convention. It turned out Ike had to make Warren the Chief.

KOBYLKA
There is no reason to believe that Earl Warren is gonna be the catalyst for great change constitutionally. He is involved in the Japanese American relocation. Hell, he's an Eisenhower appointee. This is not somebody who you would look to think the world could change.

NARRATOR
The new chief was welcomed by the other great politician on that Court. When Warren was new in town, Hugo Black would take him home, open a bottle of scotch and put some good steaks on the grill. They'd talk about the Court all night.

Warren asked Black to run the Court conferences until he got his feet on the ground. When Warren finally took over the conference, he ran smack into Brown versus Board. None of the Justices knew what to expect from the new Chief.

KOBYLKA
It's an interesting way to walk into your job. What he does in this first conference in December of '53 is state the issue as a moral issue. 'If we uphold Plessy, we're saying that blacks are inferior to whites.' Doesn't talk about the legalities of it. Then he just lets it sit.

KLARMAN
The issue now was different from the issue the year before, when nobody knew what the outcome would be. Now all the justices knew what the outcome would be; the question was what the vote would be.

NARRATOR
Warren had to have unanimity. He couldn't expect much help from the White House, and none from Congress. Could the Court take on segregation alone?

The South would rebel . . . what army could the Court send? And any dissent would become the new anthem-no, the new legal brief-for segregation in the South evermore.

KOBYLKA
The next conference on this is in January. In between he does what Earl Warren does, he walks halls, he talks to justices, he arranges lunches. I mean, this is the way politicians approach things, and Warren was at core a politician.

POWE
He kept them talking, week after week, and managed to get the Court to where it was eight to one, with Stanley Reed being the dissenter. He then went into Reed's office and stated, 'Stan, you're in this alone now. You've got to do what's best for the country.'

NARRATOR
On May 17, 1954, there were signs. Some of the justices' wives showed up. Some clerks were tipped off. Then reporters rushed the courtroom.

POWE
Warren starts off in a bland manner and you can't tell for a while as he's delivering the opinion what the outcome is going to be. And then, he comes to the key line and he says, 'and we unanimously hold that separate but equal has no place in the Constitution.' And it was just electric in the courtroom when he said unanimous.

KOBYLKA
'We conclude that in the field of public education, the doctrine of 'separate but equal,' has no place. Separate educational facilities are inherently unequal. Therefore, we unanimously hold that the plaintiffs are deprived the equal protection of the laws guaranteed by the 14th Amendment.' Plessy v. Ferguson in education is no more, and in practice Plessy v. Ferguson itself is no more. The era of Jim Crow, constitutionally speaking, is over.

CARTER
This was precisely what we urged them, almost in that language. So it was gratifying to have the, the opinion come down almost in the language of the argument that we made to them.

JORDAN
In 1951, I used a plane geometry book that had been used by a white student in 1935. Brown said that that was over. The hand-me-down tubas that I played in the high school band that were from the white high schools-it said to me that that was ended. And it said to me that at some point, I would not have to travel from Atlanta to Green Castle in Indiana to get an undergraduate degree. That my family, my cousins, my neighbors, could go to Georgia Tech and to the University of Georgia. The Supreme Court decision of 1954 was to me the Magna Carta; it was the second emancipation. It was a great moment.

CARTER
What I did believe was that it would end segregation and discrimination in the country. And what I also believed was that it would provide equality to black people. What I didn't realize, and this comes with experience, is that segregation was a symptom of a larger evil in the society, which is white supremacy.

NEWMAN
Black went to a dinner a couple of days later and all the guests said, "Oh, this is wonderful!' 'Oh, marvelous!" But Black said, "Yes, it's wonderful. But people are gonna die." He had seen at first hand, in the Klan and otherwise in Alabama, how raw emotions were and how close to the surface they were. And he said that the tree of liberalism will have to grow with people's blood.

NARRATOR
For years after the case, when Black went home to Alabama, he wore a bulletproof vest. Then he stopped going altogether. He was the most reviled native son. In 1959, the State Senate resolved that Black's remains must never be buried in Alabama's sacred soil. By that time, Black's best friends had cut him off. His son, Hugo, Jr., had to leave Alabama. He was getting telephone death threats. A crowd tried to burn him in effigy on his front lawn.

Meanwhile, schools in Alabama hadn't changed a whit. The decision in Brown had said only that segregation was unconstitutional. A full year and another round of arguments had passed before the Court decided how to make its great pronouncement a reality. In the end, all the Court's remedies boiled down to one key phrase from the ever cautions and deferential Felix Frankfurter: desegregation would proceed "with all deliberate speed." Throughout its long history in English and American law, Frankfurter knew, the phrase had always invited a process more deliberate than speedy.

CARTER
The problem with the all deliberate speed was that it compromised the Court's integrity. That was a corrupt decision. When you have a constitutional right it vests immediately. And what they did with that one was, because of race, they said it's over time. A racist decision meant, I suppose, to ease the South's acceptance of it. As it turned out, it didn't do that.

REPORTER
How do you boys feel about this?

STUDENTS
We don't want no niggers,..No niggers... No niggers...we don't want them. No,no...No way...they don't want to come to school, they just want to come and cause trouble.

REPORTER
Do you ever see any prospect, Sir, of integrating schools in Prince Edward County?

MAN
No Sir, I don't believe it will come in our lifetime in Prince Edward County.

REPORTER
Prince Edward County simply no longer operates a public school system. In the face of a federal court order to desegregate schools, the county closed up every one of them.

KLARMAN
In 1960, which is five years after that order came down, one in a thousand school age African American kids in the South are attending integrated schools. That's really an extraordinary instance of nullification of a Supreme Court decision.

DELLINGER
It wasn't clear what the answer was gonna be. There was very little integration and a lot of massive resistance. And the Court had to think that our most important pronouncement may be one that the country simply ignores. Segregation won't end, but the Court's authority will.

POWE
The NAACP's litigation strategy has flopped. The Supreme Court is missing in action. Nothing that the NAACP wins gets any results. And as a result, you get the youthful activists that start the freedom rides in the spring of 1961, that began the sit-in movement in the spring of 1960.

GEORGE WALLACE:
'And I say segregation now, segregation tomorrow and segregation forever.'

KLARMAN
Brown radicalizes Southern politics. It produces politicians who are more extreme in their commitment to white supremacy.

POWE
When Bull Connor, the police commissioner of Birmingham, unleashes the police dogs, the high-pressure fire hydrants, and the cattle prods on peaceful young African-American dissenters, all of this is beamed to nationwide television and it takes up all the nightly news.

NARRATOR
The effect of the pictures on TV was electric. Civil rights became the nation's agenda. Still, the battle between the new civil rights activists and the white segregationists might have stayed a stand-off-integration might have stalled for another ten years-except for a third force, that was also becoming more hard-line.

JOHN F. KENNEDY, JR.
I regret to announce Associate Justice Frankfurter has retired from regular active service on the Supreme Court...

NARRATOR
Hugo Black's old adversary was gone-and with him, his ideas of judicial restraint. Over the next five years, Justice Black would lead the Warren Court to an expansive vision of individual rights. This was his time.

With five votes, the new liberal majority could do anything it chose. And one thing it chose was to revisit the schools in Prince Edward County, Virginia-one of the five original cases in Brown.

KLARMAN
This is a profound embarrassment. Thirteen years after the litigation's begun, the schools are still closed in Prince Edward County Virginia. Attorney General Robert Kennedy gives a speech in which he says, 'Isn't it a shame that the only places in the world where you can't get a free education are in North Vietnam, Cuba, Communist China, and Prince Edward County, Virginia.'

NARRATOR
Hugo Black wrote the opinion for the court. There were no dissents. "The time for mere deliberate speed has run out," he wrote, "and that phrase can no longer justify denying these children their constitutional rights."

POWE
Black's take on 'all deliberate speed' is angry. He is mad that the South hasn't made a good-faith effort.

KLARMAN
They order that the schools be re-opened, and indeed they order a tax increase to fund public education, which is something they'd never done before. But they're so fed up by 1964 that the justices now feel liberated to adopt some unusual methods in responding to Southern recalcitrance.

HOWARD
It didn't end overnight, but as you moved on through the later '60s, the court began to step in more frequently, and integration actually began to take place.

POWE
The Court is back in the game and is not going to abandon the game. Then, with the landslide election in 1964, you've got President Johnson enthusiastically backing civil rights and two-thirds majorities, in both the House of Representatives and the Senate, of the Democratic Party. This is the era of validation of civil rights. The 1964 election functionally told the Supreme Court: 'You were right in Brown. Good job."

HOWARD
When he arrived in Washington as a U.S. Senator, he started acquiring and reading the kinds of books that all of us say we're going to read and you typically don't get around to it: books like Thucydides, Gibbon or Carlyle-really the great books. Sometimes we'd be at his house on weekends in Alexandria, sitting in his library working on opinions, and we'd take a break, and I would pull some of the books down off the shelf. And I would thumb through them and they were clearly well read and annotated. He would write in the margin and argue with the author. There'd be these marginal notations like "rubbish" or "nonsense" or "no" underscored. You could see this conversation going on between Hugo Black and the long dead Greek or Roman author of that particular book. What I came to appreciate, the insight that came to me, was that surely Hugo Black read the same kind of books that the founding generation read. That the world view he had of the Constitution was framed by books that would've been on the shelves of an educated 18th century person like the ones that went to Philadelphia in 1787.

NARRATOR
Hugo Black's story didn't start in a library but a courtroom in the Old South. He'd seen justice dispensed, and injustice, too, that stemmed from poverty, bigotry, or simple ignorance, especially where the states would not bow to the Bill of Rights.

DELLINGER
Hugo Black worked in courthouses as a trial lawyer in Alabama. He was a police court superintendent at one point, he was aware of police brutality. Confessions were being extracted from innocent people by third degree techniques. There was no right to a lawyer. You could be held incommunicado by the police. And he thought that the Bill of Rights oughta protect citizens against abuse by local police, by state governments, by state legislatures.

KOBYLKA
Before the Warren Court, states had a great deal of latitude in terms of how they would conduct their criminal justice system. So unless there was some gross abuse of police authority, states could largely do what they wanted to do.

NARRATOR
Since the 1940s, Hugo Black had been arguing that the Civil War had changed all that-that if the 14th Amendment meant anything, it was that that the Bill of Rights must protect people not only against the federal government but against the actions of any government, in every state.

DELLINGER
He says, quote, "Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of the many. In my judgment," Hugo Black goes on, "the people of no nation can loose their liberty so long as a bill of rights like ours survives. I would follow what I believe was the original purpose of the Fourteenth Amendment: to extend to all the people of the nation the complete protection of the Bill of Rights."

HOWARD
Clarence Earl Gideon had broken into a pool hall in Florida and had been convicted of breaking and entering, but he didn't have a lawyer; he was too poor to afford one. And when the case got to the Supreme Court, the argument on behalf of Gideon was: it's simply a violation of due process of law for a person to be tried and convicted in a criminal court without a lawyer. People that can afford one have those protections, but poor people don't.

POWE
It was something that every American could understand was wrong. If the prosecutor's a lawyer and you are an indigent defendant, which probably means you're really down on your luck, how are you going to win?

HOWARD
Gideon was the one that somehow went to the heart of the whole criminal trial process. Gideon was the embodiment of Hugo Black's argument that the Bill of Rights guarantees ought to apply to the states. I knew as we worked on that opinion, here was one that was gonna be in the case books as long as people studied American constitutional law. This would be one of the big ones.

NARRATOR
For Black, the restrictions on state power were in the words of the Constitution-there it was, in black and white. But if the text was his mandate, it was also his limit. By 1965, he had to split with his longtime colleague and ally, William O. Douglas.

Black and Douglas, the New Dealers-now old men-had voted together for a quarter century. But not in Griswold versus Connecticut.

The case was about an old state law that made it a crime to give contraceptives, even advice about preventing pregnancies, even to married couples. For Douglas, this looked like his last best chance to enshrine a right to privacy into constitutional case law. To Douglas, there was nothing more sacred than the right to be left alone. And the way he went at asserting that right was also characteristic Douglas. He simply declared it. Anyone who didn't like it could go to hell.

BISKUPIC
Justice Douglas' opinion was quite radical in that it didn't ground this right of privacy in a single place in the Constitution.

SIMON
He didn't find explicitly a right to privacy, but he says if you look to the First Amendment, the right to association and the right to believe what you will; and you look to the Fourth Amendment, the right to be free of unreasonable searches and seizures; and you look at the Fifth Amendment, the right to be protected against self-incrimination . . . that if you put all these various the emanations and penumbras from those explicit rights together, you surely have a constitutional right to privacy. And that was his opinion.

NARRATOR
Douglas' assertion wasn't good enough for Hugo Black. It was as if he'd pulled his rumpled old copy of the Constitution out of his pocket-just to check-and he couldn't find the word "privacy" in there anywhere. "I like my privacy as well as the next one," he wrote in his dissent, 'But I am nevertheless compelled to admit that the government has a right to invade it, unless prohibited by some specific Constitutional provision."

More and more, through the 1960s, Black's liberal colleagues pushed into territory where he wouldn't follow. The leadership of the liberal wing was passing to younger colleagues, like Bill Brennan, from New Jersey.

Nevertheless, where Black saw his way clear-say, on issues of a fair trial-he was still in the vanguard. In 1966, the court put an end to a practice that Hugo Black had seen and decried as a young prosecutor back in Birmingham in the 1920's.

DELLINGER
In Miranda against Arizona the Court finally came to the last stage of its concern with police brutality and interrogation techniques which they thought were unfair. And they did it in a fairly dramatic fashion. If you're going to admit a confession against a defendant at trial you've gotta show that he was warned that he had a right to remain silent. And more importantly, that he had a right to a lawyer if he wished one, and finally that if he couldn't afford a lawyer, the state would pay for one.

KOBYLKA
After the Warren Court, you cannot introduce illegally seized evidence into a trial-states can't do that; previously they could. After Gideon v. Wainwright, you have to have an attorney represent you in a trial. After Miranda, you cannot use a coerced confession in a trial to demonstrate guilt -- that has to be excluded from the trial. So what you do is you move from a state-based criminal justice system to a criminal justice system that has to conform with nationally imposed rules.

NARRATOR
Thirty years had passed since Black joined the Court. He had little left to prove now. When LBJ appointed Thurgood Marshall, the man who'd led the legal assault on segregation, Marshall asked that old Klansman, Hugo Black, to give him the oath of office.

But just as Black's great arch of rights was receiving its capstone, people started saying it should be torn down. As Marshall took his seat, cities were going up in flames. There was a crime wave in the country. Public attitudes about the Court were changing, and not for the better. Was the Court protecting liberties . . . or criminals?

REPORTER
Mr. Justice, do you think that those decisions have made it more difficult for the police to combat crime?

HUGO BLACK
Certainly. Why shouldn't they? What were they written for? Why did they write the Bill of Rights? They practically all relate to the way cases shall be tried. And practically all of them make it more difficult to convict people of crime. What about guaranteeing a man the right to a lawyer? Of course that makes it more difficult to convict him. What about saying that he should not be compelled to be a witness against himself? That makes it more difficult to convict him. What about the no search, unreasonable search or seizure shall be made? That makes it more difficult. They were written to make it more difficult...

NARRATOR
Black could protest, in his time honored way-"There are the words, in black and white!"-but the country around him was changing. No one saw the change more clearly than the GOP nominee for President in '68.

RICHARD M. NIXON
Some of our courts, in their decisions, have gone too far in weakening the peace forces against the criminal forces in this country.

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BISKUPIC
Richard Nixon has a heyday with these rulings, particularly Miranda. He says that the Warren Court has been coddling criminals. And he sets out to win the White House in part based on the idea that he will appoint new justices to the Supreme Court.

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...and it will get worse unless we take the offensive. Freedom from fear is a basic right of every American. We must restore it...

RICHARD M. NIXON
Some of our courts and their decisions have gone too far....

NARRATOR
Nixon may not have known what to do about the riots in the cities, or about Vietnam, but he knew who he wanted to run against. If he could put together fear of crime in the big Northern cities, with the South's resentment of the Warren Court, that combination would be a winner.

Nixon would try to turn the Court away from its agenda of civil rights and personal rights . . . to take the restraints off of government power . . . to usher in the counter-revolution.

RICHARD M. NIXON
I, Richard Milhous Nixon, do solemnly swear...

CHIEF JUSTICE WARREN
That you will faithfully execute the office...

RICHARD M. NIXON
That I will faithfully execute the office...

JOE KOBYLKA
The irony is palpable. Warren administers the oath of office to a man who when he ran for President, ran for President to change in part the court that Warren had created, the constitutional vision that Warren had created, Warren's notion of what is just, and right, and what really is, in Warren's sense, America.

CHIEF JUSTICE WARREN
So help you God...

RICHARD M. NIXON
So help me God.

NARRATOR
Hugo Black was approaching his 83rd birthday, the end of the long game. But he was still playing. Maybe he thought he could outlast Nixon. More important, after thirty-two years on the Court, he knew what he'd done.

DELLINGER
I think he let January 20th, 1969 pass without being very upset about it. I think he thinks the election of a mere President is not likely to change what has been put in place by the Court.

The Court had accomplished so much. I mean, no one would have thought, from the vantage point of the late 1930s, that the Court would be able to take on racial segregation, eliminate all the Jim Crow laws, protect rights of citizens against state government in the police stations and in searches and in seizures . . . no one would have thought all that could have been accomplished.

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