CHAPTER ◆ 1
Protecting the Poor
In the spring of 1968, Sylvester Smith, of Selma, Alabama, asked the Supreme Court to restore her welfare benefits. The thirty-four-year-old Smith, a widow with four young children, worked from 3:30 a.m. until noon as a waitress and cook and picked cotton in her time off, but she earned only about $20 a week. She supplemented her wages with about $29 a month in Aid to Families with Dependent Children (AFDC), a federal cash assistance program for low-income families with children, jointly administered by the federal and state governments. When a tough new caseworker named Jacquelyn Stancil took over her case, Smith was told that she and her children were no longer eligible for benefits, because of information the state had received from an anonymous source. The problem, Stancil said, using the terminology of the day, was that there was a “man in the house.”
Alabama was one of eighteen states with a “man in the house” rule, which denied welfare benefits to mothers who were having sex with a man on a regular basis. In Alabama, a man who visited frequently “for the purpose of cohabiting with” the mother, or met with her elsewhere for sex, was deemed a “substitute father” and obligated to support the family. The rule was meant to save the government money, but it also reflected the view that, as The New York Times put it, welfare was “an inducement to immoral behavior, especially among Negroes.” Alabama’s top welfare official defended the man-in-the-house rule by saying that a mother who lost her benefits could always choose “to give up her pleasure” and “act like a woman ought to” to get them back.
Stancil had received a tip that Smith had a boyfriend who visited her home—a shack on the outskirts of Selma—on weekends. Smith did have a boyfriend, a married man named William E. Williams, but, like many of the men who visited welfare mothers, he had little money, and he had a wife and nine children of his own. Williams gave Smith $4 or $5 a month, but he could not support her family, which Smith understood. “Ain’t much he can do,” she said. “You can’t make a man take care of his own kids, much less take care of other people’s kids.”
Stancil told Smith that if she did not break off with Williams, she and her children would lose their AFDC benefits. Under Alabama law, Smith could defend against the charge that she had a boyfriend by providing evidence that she did not, including references from people considered to be in a position to know, such as clergymen, neighbors, or grocers. Welfare officials would ask the references if they believed she was having sexual relations. Smith, however, did not deny that she was seeing Williams. “If I end with him, I’m gonna make a relationship with somebody,” she said. “If God had intended for me to be a nun, I’d be a nun.”
Smith’s situation was not unusual. Alabama adopted the man-in-the-house rule in 1964, and 15,000 children were removed from the AFDC rolls under it in the first year. Another 6,400 poor children were turned down when their mothers applied for AFDC. An analysis of the cases closed in Alabama because of the man-in-the-house rule found that 97 percent of the children were black. Nationwide, the numbers were far larger: it was estimated that more than 500,000 children were being denied benefits because of state man-in-the-house rules.
What was unusual about Smith’s case was that she fought back. She challenged Alabama’s rule in federal court. It was a courageous act for a poor African American widow and mother of four to take in 1960s Alabama, and it came at considerable personal cost. While the lawsuit proceeded, Smith’s benefits were cut off, and the Selma power structure closed ranks against her. Stores refused to extend her credit to buy groceries, and at times her children went hungry. Smith also lost the minimal support she received from Williams, who stopped his visits after she filed suit.
Welfare recipients had many burdensome conditions imposed on them in the 1960s, but few were as despised as the man-in-the-house rule. It was widely understood that welfare officials saw it as a tool for removing people from the rolls, particularly black women and children. The man-in-the-house rule was, one analysis of Smith’s case noted, the preferred tool for “an Alabama welfare official intent upon lopping off a lot of black bodies in a hurry.” The rule also let caseworkers probe the most intimate aspects of their clients’ lives. Two years earlier, the NAACP Legal Defense and Educational Fund had declared at a Washington, D.C., press conference that ending the man-in-the-house rule was one of its top priorities. The rule put the welfare mother in an “impossible dilemma,” the group said, forcing her to choose between conducting “a secret relationship” while living “as if she were a criminal” or abandoning “her efforts to develop male friendships altogether.”
Smith’s case was taken up by northern lawyers, including ones from Columbia University’s Center on Social Welfare Policy and Law. These lawyers thought Smith’s challenge would be a strong national test case. Since Williams did not live in the home, was not the father of any of the children, and was too poor to support them, the state’s claim that he should be considered a “substitute father” was weak. Alabama was also a good state to bring a challenge in. Governor George Wallace had stood in the schoolhouse door to resist integration at the University of Alabama just a few years earlier, and the state’s close association with virulent racism meant there would be little sympathy for it if the case reached the Supreme Court.
Smith’s lawyers argued that the man-in-the-house rule violated her rights under two parts of the Fourteenth Amendment: the Equal Protection Clause, which says the government cannot deny people “equal protection of the laws,” and the Due Process Clause, which prohibits the government from denying life, liberty, or property without “due process of law.” The lawyers also argued more narrowly that the rule violated the federal AFDC statute, because it denied welfare benefits to children who were entitled to them under the law. The statute required states that participated in the program to provide benefits to needy children if their father was dead, absent, or incapacitated, which Alabama was not doing for Smith’s children.
The Supreme Court accepted the case, and it heard oral arguments on April 23, 1968, just weeks after Martin Luther King Jr. was assassinated. It was clear from the justices’ questions that the man-in-the-house rule was in trouble. Warren expressed concern over whether welfare families like Smith’s actually received support from the purported “substitute fathers” covered by the rule. Marshall, the first black justice, who earlier in his career had been director-counsel of the NAACP Legal Defense Fund, and William O. Douglas, the Court’s most liberal member, questioned why the Smith children should be penalized for actions they had nothing to do with.
On June 17, 1968, in King v. Smith, the Court ruled for Smith by a 9–0 vote. It took a narrow approach, holding that the man-in-the-house rule violated the AFDC statute, and not reaching the larger equal protection and due process issues. Warren, who wrote the Court’s opinion, said that under the statute, benefits had to be provided to every eligible “dependent child” deprived of “parental” support.” Alabama’s rule was invalid, Warren said, because poor children without fathers cannot be denied aid “on the transparent fiction that they have a substitute father.”
The Court’s narrow approach to the case was not surprising. Courts generally try to decide cases based on statutes rather than the Constitution whenever they can, a principle that is known as “constitutional avoidance.” By ruling under the AFDC statute, the Court did not create any broad new constitutional rights for poor people that they could apply in other kinds of cases. Still, the decision’s real-world impact was undeniably large. In addition to restoring the Smith family’s benefits, it prevented about 500,000 children nationwide from losing benefits because of an irrational and cruel governmental dictate. The language Warren used in his opinion also highlighted the challenges faced by poor families like the Smiths. “All responsible government agencies in the Nation today,” he declared, “recognize the enormity and pervasiveness of social ills caused by poverty.”
Smith was pleased by the Court’s ruling, and by the fact that it would help other AFDC recipients. “A lot of the ladies who got aid because of my case thank me,” she said later. Legal commentators overwhelmingly praised the Court for striking down an invasive and mean-spirited rule and hoped the decision would be the first of many more like it. “The King decision is a salutary one,” an article in the North Carolina Law Review declared, and it “very likely signifies a new role for the Supreme Court in protecting the rights of welfare recipients, though it is of small significance compared with the work yet to be done.”
King v. Smith was the culmination of a decades-long drive to establish greater legal rights for the poor. The origins of this campaign lay in the Great Depression, when the Court began to express a new concern for the disadvantaged. Starting in 1933, Franklin Roosevelt’s New Dealers poured into Washington, D.C., on a mission to rescue the millions of Americans who had been driven into poverty, and some of that idealism eventually reached the Court. In 1938, in the obscure commercial case United States v. Carolene Products, the New Deal–inspired Court unveiled a new conception of the Equal Protection Clause that would systematically give special protection to the most vulnerable groups in society.
The Court set out its new vision for equal protection in footnote 4 of the Carolene Products decision, which has been called the most famous footnote in American law. The Court said that when it reviewed most laws, it would be highly deferential and rarely declare them unconstitutional. If a law imposed a special burden on “discrete and insular minorities,” including religious, national, or racial minorities, however, the Court suggested it would apply a “more searching judicial inquiry.” The Court’s message was that it was highly likely that it would strike down laws that imposed special burdens on one of these vulnerable minority groups.
Footnote 4 marked a major new path for American constitutional law. To a degree it never had before, the Court was making a commitment to protect minorities who were too politically weak to protect themselves. It was not clear, however, which groups it considered to be “discrete and insular minorities” deserving of special protection. Footnote 4 expressly mentioned racial, religious, and national minorities, but it suggested that more groups might follow. One factor it said it would take into account was whether a group experienced prejudice that interfered with its ability to use “political processes ordinarily to be relied upon to protect minorities.”
The Court did not raise the possibility that poor people would be one of these new protected classes, but there was a strong argument that they should be, based on the criteria in footnote 4. Poor people were a numerical minority. They were also a discrete and insular group: they were often physically segregated, in urban ghettos or on the “wrong” side of the tracks, and they were set apart socially by the stigma that attached to them in a nation that worshipped material success. Throughout American history, the poor had been a much reviled group, regarded as lazy, immoral, disease-carrying, and cursed by God. Poor people had also been unable to protect their rights through the political process. There had been a wide array of laws discriminating against them, including ones that consigned them to indentured servitude or poorhouses, and they had not been able to persuade the government to adopt welfare programs that would lift them out of poverty.
There was another factor working in favor of designating the poor a discrete and insular minority in the late 1930s. With so many formerly wealthy and middle-class Americans experiencing dramatic reversals of fortune during the Great Depression, there was a growing belief that poor people were not to blame for their misfortune. This new attitude came directly from the top. Roosevelt had declared at his inauguration on March 4, 1933, that poverty was a national problem that the government had an obligation to address. Later in his presidency, in his famous “Four Freedoms” speech, one of the freedoms Roosevelt argued for was “freedom from want.”
There were also reasons, however, that the Court might be reluctant to designate the poor as a suspect class. Unlike racial and religious minorities, poor people were not yet recognized as a cohesive group that should be regarded as having collective rights. It also was not entirely clear what kinds of laws the Court would subject to heightened scrutiny if it decided that the poor were a suspect class. After all, even many of the most mundane government policies, like highway tolls and national park entrance fees, imposed a greater burden on the poor than the rich.
In 1941, in Edwards v. California, the Court had a chance to weigh in on the rights of the poor, and to use footnote 4 if it wanted to. The case was a challenge to a California law that made it a crime to transport a poor person into the state. Twenty-eight states had laws of this kind, which were known as anti-Okie laws, after the Oklahoma migrants immortalized in John Steinbeck’s The Grapes of Wrath, who were the sort of people they were intended to keep out. The plaintiff in the case, Fred Edwards, had driven to Texas to pick up his brother-in-law, Frank Duncan, and Duncan’s pregnant wife. He brought them back to his home, near Sacramento, and three weeks later Duncan’s wife gave birth. Edwards was convicted of violating California’s Welfare and Institutions Code, which barred “bringing into the state any indigent person who is not a resident of the state,” and he was sentenced to six months in jail.
The Court struck down the law by a unanimous vote, though the justices disagreed on their legal rationales. The majority held that California’s law violated the Commerce Clause, which limits the ability of states to interfere with exchanges between the states that have an economic impact, including the movement of people. Edwards was an important victory for the poor, since anti-Okie laws were so widespread and so stigmatizing. The majority opinion in Edwards also changed how the Court talked about poor people. Instead of calling them “paupers,” “vagabonds,” or a “moral pestilence,” as it repeatedly had in past decisions, the Court went out of its way to humanize them. It was not true that “because a person is without employment and without funds, he constitutes a ‘moral pestilence,’” the Court said. “Poverty and immorality are not synonymous.”
The one thing the Court did not do for the poor in Edwards was hold that they had any special rights as a group, the way it could have if it had relied on the Equal Protection Clause and footnote 4. Roosevelt had nominated seven of the nine justices who decided Edwards, and he had elevated another, Harlan Fiske Stone, to be the chief justice. Still, the Court was not willing to expand the legal rights of the poor in the same way that Roosevelt had expanded their economic rights. By basing the decision on the right to travel across state lines, the Court did not give poor people a legal precedent they could use when they were discriminated against in other ways.
One justice, however, went further. In his concurring opinion, Robert Jackson, who had been Roosevelt’s attorney general before he joined the Court, said the real problem with California’s law was that it discriminated against the poor. Writing just weeks before America entered World War II to fight Nazism, Jackson insisted that the Court risked “denaturing human rights” by making the case about interstate commerce. “We should say now, and in no uncertain terms,” he wrote, “that a man’s mere property status, without more, cannot be used by a state to test, qualify, or limit his rights.” In arguing that the case should have been decided under the Fourteenth Amendment’s “Privileges and Immunities” clause, Jackson compared the poor to groups that footnote 4 had identified as “discrete and insular minorities.” Lacking money was, he insisted, “constitutionally an irrelevance, like race, creed, or color.” Jackson, however, had only his own vote for his views.
Not long after Edwards, the Court underwent a period of rapid turnover at the top. In 1946, the year after Roosevelt’s death, Stone died. President Harry Truman nominated his treasury secretary, Fred Vinson, to be the next chief justice. Vinson was a political moderate and a legal mediocrity who, as a leading constitutional law expert said, “lacked both the taste for the complex work of the Court and the fine-tuned analytical skills to lead” it. While Vinson was chief justice, Brown v. Board of Education was headed to the Court. If Brown had been decided while Vinson was still in charge of the Court, he might have had trouble leading his colleagues to the unanimous decision they ultimately reached. In fact, some legal scholars wonder if the Court under Vinson might have upheld segregated schools. As it happened, though, Vinson died of a heart attack in 1953, at the age of sixty-three.
The decision about who would lead the Court next fell to Dwight Eisenhower, who nominated Earl Warren, the governor of California. The choice was a political payback. Warren had played a major role in steering his state’s delegation to Eisenhower at the 1952 Republican National Convention and had gone on to provide important support in the general election. Eisenhower promised to nominate Warren to the next Supreme Court vacancy, and, nine months into his first year in office, he kept his word by making Warren the next chief justice.
President Dwight Eisenhower was not greatly concerned with Warren’s views about the law. As part of the selection process, he asked his attorney general, Herbert Brownell Jr., to interview Warren and determine whether he was “generally sympathetic with the ideology . . . of the Eisenhower administration.” Brownell’s assessment was that Warren would have views about the law that were generally consistent with Eisenhower’s. It was one of the great miscalculations in Supreme Court history.
The new chief justice was, as Brownell would learn, not easy to read. Warren had grown up in Southern California in modest circumstances. Both of his parents had immigrated as children, his father from Norway—the family name had been Varran—and his mother from Sweden. After meeting in Minneapolis, they moved to Los Angeles, where Methias Warren worked long hours at low pay for Southern Pacific Railroad. Warren worked for the railroad himself in his youth, and it left him, he said in his memoirs, with empathy for poorly treated workers and skepticism about corporations. “I saw every man on the railroad not essential for the operation of the trains laid off without . . . warning for weeks before the end of the fiscal year in order that the corporate stock might pay a higher dividend,” he wrote. The experience taught him lasting lessons, he said, “about monopolistic power, political dominance, [and] corruption in government.” Warren’s hero was Hiram Johnson, the progressive California governor and U.S. senator who had been Theodore Roosevelt’s Bull Moose Party running mate in 1912.
After earning undergraduate and law degrees from the University of California–Berkeley, Warren drifted from unsatisfying law jobs to service in World War I, and back to uninspiring legal work. His career took a new direction when he joined the Alameda County District Attorney’s Office. As a deputy district attorney and, later, district attorney for California’s third-largest county, Warren efficiently put criminals in prison. He went on to be elected state attorney general, a position from which he did battle with gambling interests and corrupt politicians. He was a crusading reformer, but very much a Republican one. When the Great Depression arrived, Warren did not support Roosevelt’s New Deal. He warned that, with the government taking on greater powers to help the victims of the crisis, “the doctrines of individual freedom and personal property rights as laid down by our forefathers in the Constitution of the United States” were “under dangerous attack.”
When Warren ran for governor in 1942, he began to show a more progressive side. In his campaign, he talked about the importance of schools and advocated government-funded pensions to help the elderly. When he became governor the following year, he promoted still more liberal ideas, including a universal health care program, funded by a payroll tax. Warren was not as liberal on other issues, however, including one that forever stained his progressive reputation. He was a driving force behind the internment of Japanese Americans during World War II, and he advocated it in crudely racist terms. At a 1943 governors’ conference, Warren declared, “We don’t propose to have the Japs back in California during this war, if there is any lawful means of preventing it.”
Despite his politically ambiguous background and Brownell’s intuition that he was a moderate Republican, when Warren arrived on the Court he immediately became a strong liberal voice. In 1954, a little more than seven months after he arrived, the Court decided Brown. The justices Warren joined were an ideological mix. There were liberals like former New Dealers Hugo Black and Douglas, both Roosevelt appointees. There were also moderates and conservatives, including Felix Frankfurter, who believed in judicial restraint, or declining to get involved in many legal disputes, and Stanley Reed, a Kentucky native who was initially inclined to uphold segregation. Warren was able, however, to persuade his colleagues to make the Court’s ruling in Brown unanimous. The vote was an early indication that Warren would be a strong chief justice, who would be adept at forging majorities through a combination of political skill and personal charm. Potter Stewart, a moderate conservative also nominated by President Eisenhower, explained Warren’s influence simply: “We all loved him.”
With Brown, the Warren Court was off to a strong start. It acted powerfully, and in a single voice, to elevate African Americans, who had been profoundly oppressed since the founding of the republic, when the Constitution did not count them as full human beings. The Court did not hesitate to end a practice and a way of life firmly embedded in the history and culture of a large part of the country. It was not immediately clear whether the Warren Court would be equally bold in its approach to other issues—including the rights of the poor.
Two years after Brown, the Court was presented with a chance to hold that poor people as a class had special status under the Equal Protection Clause. Griffin v. Illinois was a challenge to an Illinois law that let defendants appeal their convictions only if they provided the appeals court with documents that required a trial transcript to prepare. Many poor defendants could not afford a transcript and as a result could not file an appeal. The Court struck down the law by a 5–4 vote, with Black writing an opinion for four of the justices. In criminal trials, Black said, a state “can no more discriminate on account of poverty than on account of religion, race, or color.” With this opinion, which Warren joined, the Warren Court seemed to be moving toward recognizing the poor as a discrete and insular minority and providing them with the sort of special constitutional protection racial and religious minorities received. There were, however, only four votes for Black’s opinion. The fifth justice in the majority, Frankfurter, joined in the result but not the reasoning. So Black’s strong words about the rights of the poor did not have the force of law.
While the Court equivocated, a movement was forming in academia in favor of protecting poor people as a class. The leader was Jacobus tenBroek, a University of California–Berkeley constitutional law scholar and disability rights activist. TenBroek, who was blinded in a childhood bow-and-arrow accident, had founded the National Federation of the Blind. When he was appointed to California’s Social Welfare Board, he championed blind poor people, and over time he expanded into advocacy for all poor people. In the 1950s, tenBroek began arguing for constitutional rights for the poor. In a 1955 paper, “The Constitution and the Right of Free Movement,” he criticized laws that prevented people from receiving welfare benefits until they had lived in a state for a designated time period. TenBroek argued that these durational residency requirements, as they were known, which could be several years long, violated the right to travel.
TenBroek also argued that poor people as a group should have constitutional protection. In “California’s Dual System of Family Law: Its Origin, Development, and Present Status,” a three-part article that ran in the Stanford Law Review in 1964–65, he contended that California operated a two-track family law system, with one set of rules for the poor and another for everyone else. TenBroek suggested that poverty should “as a classifying trait be declared inherently discriminatory,” citing Jackson’s Edwards v. California dissent and its contention that lack of money should be “constitutionally an irrelevance, like race, creed, or color.”
In the 1960s, the drive to increase poor people’s rights was helped, as it had been in the Great Depression, by growing popular support. In 1962, Michael Harrington, a onetime editor of the left-wing Catholic Worker, published The Other America, one of the decade’s most influential books. It revealed that as much as one-quarter of the nation lived “below those standards which we have been taught to regard as the decent minimums for food, housing, clothing, and health.” President Kennedy embraced Harrington’s call to arms, but he did not live long enough to put his ideas into action.
As the nation started paying more attention to poverty, the Court also became more interested. This new focus was helped along by significant changes in the Court’s membership. In 1962, two Kennedy appointees joined—Byron White, who was deputy attorney general under Attorney General Robert F. Kennedy, and Arthur Goldberg, a prominent union lawyer. White and Goldberg joined four staunch liberals already on the Court: Black, Douglas, Warren, and William J. Brennan, who was, like Warren, an Eisenhower nominee. White was a centrist who often sided with the conservatives, but Goldberg and the four liberals already on the Court formed a solid liberal majority. For the first time since he became chief justice, Warren had a like-minded majority, and the Warren Court’s heyday was about to begin.
The five strong liberals of the early Warren Court had something in common beyond their liberalism: all were born into poverty, or close to it. Warren’s father was a low-paid railroad employee. Douglas was raised by a struggling single mother in various locations in the West. Brennan grew up in a hardscrabble Newark neighborhood, with a father who had a serious drinking problem. Black was one of eight children in a farm family in rural Alabama. Goldberg, one of eight children of a Russian Jewish immigrant peddler, grew up in a Chicago slum. All five understood from personal experience the issues the poor people who came to the Court were raising.
This newly constituted Warren Court almost immediately began to take a bolder approach to poverty cases. On the same day in 1963, it issued two decisions that revolutionized how poor people would be treated when they were accused of crimes. In the more famous one, Gideon v. Wainwright, the Court unanimously held that the Sixth Amendment, which guarantees the right to counsel, gives poor defendants the right to an appointed lawyer if they could not afford a lawyer on their own. The Gideon case had arrived at the Court in the form of a handwritten appeal from Clarence Earl Gideon, a fifty-one-year-old drifter who was in prison for the burglary of a Panama City, Florida, poolroom. In ruling for Gideon, who had no lawyer to represent him at trial, Black proclaimed the “obvious truth” that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”
In the second case, Douglas v. California, the Court ruled 6–3 that poor defendants also have a right to a lawyer on their first appeal. Rather than rely on the Sixth Amendment, which speaks of rights at trial, the Court in Douglas based its decision on the Fourteenth Amendment’s Equal Protection and Due Process Clauses. More than Gideon, the Douglas decision continued the Court’s talk of rights for the poor as a group. Douglas, writing for the majority, said that it violated the Fourteenth Amendment when a wealthy defendant “enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent . . . is forced to shift for himself.” Sounding like tenBroek, or Jackson in his Edwards concurrence, Douglas insisted that “an unconstitutional line has been drawn between rich and poor.”
Support for combating poverty continued to grow at the national level. The civil rights movement, which was gaining force, had begun to place greater emphasis on economic rights. The 1963 March on Washington, at which Martin Luther King Jr. delivered his “I Have a Dream” speech, was officially billed as the March on Washington for Jobs and Freedom. In his famous address, King decried the fact that, one hundred years after emancipation, blacks still lived “on a lonely island of poverty in the midst of a vast ocean of material prosperity.” The march’s leaders later unveiled a “Freedom Budget for All Americans” that called for a federal jobs guarantee and a right to a basic income.
The president himself was speaking out. In his first State of the Union address, on January 8, 1964, less than two months after President Kennedy’s assassination, President Johnson declared an “all-out war on human poverty . . . in these United States.” In May, at the University of Michigan commencement, Johnson announced his plan to build a “Great Society” that would include “an end to poverty.” Congress began passing laws establishing a wide array of anti-poverty programs, including Head Start and Medicaid.
Law schools were also beginning to pay more attention to poverty, with new scholars following in tenBroek’s footsteps. In 1964, Charles Reich, a young Yale law professor, published an article in The Yale Law Journal that set out a bold new theory of how the law should treat welfare benefits. In “The New Property,” Reich argued that welfare benefits were a new kind of property, similar to land or physical possessions. He noted that the Fourteenth Amendment Due Process Clause says states cannot “deprive any person of life, liberty or property without due process of law.” Since welfare benefits were a form of property, Reich argued, the government should not be able to cut them off without “scrupulous observance of fair procedures.” Welfare recipients, he insisted, should be given a hearing, with a right to be heard and a right to appeal, before their benefits were taken away.
While Reich moved on to other subjects—a few years later he would write The Greening of America, a bestselling critique of modern society that became a counterculture bible—another academic, Edward Sparer, emerged as the “father of welfare law.” Sparer, who was born in New York City, headed to the South after his first year at City College of New York to do fieldwork for Henry Wallace’s left-wing 1948 presidential campaign. Sparer was “shaken to my core,” he later said, by the conditions he saw, including “black poverty which surpassed my imagination.” In 1963, after law school and a stint as a lawyer for the International Ladies’ Garment Workers’ Union, he helped found the Mobilization for Youth Legal Unit, the nation’s first neighborhood legal services office, which was committed to “law as an instrument of social change.”
Sparer established a Center on Social Welfare Policy and Law at Columbia University, where he became an influential voice in creating the emerging field of poverty law. In 1965, he published an article in the UCLA Law Review that included a welfare recipients’ bill of rights, which he hoped would serve as a litigation agenda for poverty lawyers nationwide. Sparer’s list included the right to privacy, the right to travel, and the right not to have the government’s morality imposed in exchange for welfare benefits.
While academics were developing this theoretical framework, an army of poverty lawyers was forming to do battle in the courts. Community-based legal services offices were springing up across the country, many operating out of storefronts in poor neighborhoods. Universities began to house poverty law centers. Sparer’s center at Columbia had nine staff lawyers, who provided training and backup to other lawyers and also brought direct litigation on behalf of the poor. New York University Law School established its own poverty law center. The mission of this new class of lawyer was, Sparer declared, nothing less than “to utilize the legal process . . . to help change the ground rules of American society.”
Poverty lawyers used the law to confront institutions and individuals they saw as oppressing the poor, including welfare bureaucracies and abusive landlords. They were soon winning major victories all across the country. In Georgia, Sparer and his colleagues successfully challenged a state AFDC provision that allowed counties to cut benefits during the okra-harvesting season to force poor mothers out into the fields. Like the Supreme Court, lower courts began to talk about poor people and poverty in a new, more sympathetic way—and they began to chart a course toward group rights for the poor, up to and including some kind of a constitutional right to subsistence. In holding that New York State discriminated against some recipients of aid to the aged, blind, and disabled, a federal district court in Manhattan declared that the Constitution incorporated “certain basic concepts of humanity and decency,” including “the desire to insure that indigent, unemployable citizens will at least have the bare minimums required for existence.”
In just a few years, poverty law had become a thriving field, and its potential seemed almost unlimited. It was a “heady time,” recalled Patricia Wald, a poverty lawyer with the District of Columbia Neighborhood Legal Services Program who went on to become the chief judge of the U.S. Court of Appeals for the D.C. Circuit. Poverty lawyers “felt confident in ‘going for it,’ ‘doing the right thing,’ raising constitutional issues freely—almost profligately—seeking activist intervention from the courts, raising Cain with the welfare and the health care bureaucracies,” Wald recalled. “We won the vast majority of issues we litigated.”
Increasingly, poverty lawyers were interested in bringing their cases to the Supreme Court, where a win would have national impact. They were encouraged that there was finally a majority on the Court that was serious about expanding poor people’s rights. In 1965, the Court’s membership changed again, when President Johnson persuaded Goldberg to resign to become his ambassador to the United Nations. Johnson replaced him with Abe Fortas, a well-respected Washington lawyer who was also one of Johnson’s closest friends and confidants. Fortas’s views on the law were similar to Goldberg’s, so the substitution left the Court’s liberal majority intact.
In 1966, in Harper v. Virginia Board of Elections, the Warren Court issued another landmark ruling in favor of the poor. It held, by a 6–3 vote, that Virginia’s poll tax of $1.50 a year discriminated against poor people, in violation of the Equal Protection Clause. The decision was an important victory for the political rights of poor people, but it was more than that. The Court went even further than it had in Douglas to suggest that the poor were a protected class. Requiring a payment to vote created an “invidious discrimination” between rich and poor, Douglas wrote for the majority. “Lines drawn on the basis of wealth or property,” he said, “like those of race . . . are traditionally disfavored.”
With those words, the Court appeared to be edging even closer to declaring the poor to be a suspect class, protected in the same way racial and religious minorities were—finally including poor people in the promise the Court had laid out in footnote 4 of United States v. Carolene Products. There was, however, a narrower way of reading Harper and the whole line of cases in which the Court had been expanding the legal rights of the poor. Edwards v. California, Griffin v. Illinois, Gideon v. Wainwright, Douglas v. California, and Harper v. Virginia Board of Elections all involved activities that had their own constitutional protection—interstate travel, criminal defense, and now voting. The Court was concerned about poor people’s ability to fully participate in those activities on an equal basis, but it was not clear whether it was willing to take the larger step of holding that poor people were protected against discrimination more generally.
While the Court continued to consider that question, a grassroots poor people’s movement was forming, focused on inadequacies in welfare programs. In New York, the City-Wide Coordinating Committee of Welfare Groups was demanding better treatment of recipients and higher benefits. Similar groups arose in other cities. On a single day of action, June 30, 1966, activists held twenty-five protests across the country. In Connecticut, welfare recipients descended on the state welfare office, while in Ohio there was a “Walk for Adequate Welfare” from Cleveland to Columbus, modeled on the Selma-to-Montgomery voting rights march that had occurred a year earlier.
At the national level, the National Welfare Rights Organization (NWRO) held its first convention in the summer of 1967. Under the leadership of George Wiley, a charismatic Syracuse University chemistry professor turned poverty rights activist, the NWRO adopted a platform calling for a welfare system that lifted all recipients out of poverty, ensured that they would be treated with dignity, respected their constitutional rights, and allowed them to participate in the decisions under which they had to live.
In 1967, Martin Luther King Jr. and the Southern Christian Leadership Conference launched the Poor People’s Campaign. With its economic-based calls for full employment, a guaranteed income, and access to decent housing and health care, the campaign represented a new phase for the civil rights movement. King described the Poor People’s Campaign, which united blacks, whites, Puerto Ricans, Mexican Americans, and Native Americans, among others, as “a determination by poor people of all colors and backgrounds to assert and win their right to a decent life.”
In the same year, President Johnson nominated a second justice, and, unlike the substitution of Fortas for Goldberg, this one did change the Court’s ideological balance, making the Warren Court even more liberal. Johnson nominated Thurgood Marshall, who was serving as his solicitor general, to replace Tom Clark, a moderately conservative Truman appointee. Marshall became the first black justice, and with his arrival there was a solid bloc of six liberals—or there almost was. Hugo Black, the onetime New Deal liberal, was becoming more conservative in his old age, and as time went on he could be counted on less to join the other liberals in important votes. With Marshall’s arrival, however, there were now five strongly liberal justices: Warren, Douglas, Brennan, Fortas, and Marshall. The other four justices were somewhere between centrist and conservative: Black; White, the moderate Kennedy nominee; Stewart, a moderately conservative Eisenhower nominee; and John Marshall Harlan II, another Eisenhower nominee, the most conservative member of the Court.
When Marshall took his seat, in October 1967, the Warren Court reached its liberal apex. The Court’s liberalism extended to many areas, but none more than poverty law. It was during Marshall’s first year, on June 17, 1968, that the Court unanimously struck down the “man in the house” rule in King v. Smith. That decision significantly expanded the rights of AFDC recipients, even if, as the North Carolina Law Review noted in its analysis of the case, it left considerable “work yet to be done” in vindicating the rights of the poor. The newly invigorated Warren Court seemed eager to do that additional work, but larger forces were rising up against it.
In mid-1968, the Johnson administration, which had played a large part in building up the Warren Court, was drawing to a close. Warren had his eye firmly on the fall election, and the possibility that Richard Nixon, an old enemy of his from California Republican politics, would be elected president. Warren, who was seventy-seven, worried not only for the country but for the Court—and he was thinking about how to keep the position of chief justice in liberal hands.
On June 13, 1968, just days before the King v. Smith ruling, Warren went to the White House to tell President Johnson that he planned to retire. Warren said he hoped Johnson would nominate a progressive to succeed him. Johnson would have to act quickly, since the election was just months away and he would be leaving office in January, but both men believed there was enough time. Johnson asked Warren his opinion about elevating Fortas to chief justice. Although Warren was not entirely enthusiastic, he said Fortas would be a good chief justice. Johnson did not ask whether nominating Fortas would be politically wise—a question that might have produced a different answer.
Fortas was a remarkable man, who in many ways embodied the American Dream. He was born in Memphis in 1910, to Orthodox Jewish immigrant parents, and grew up, he would later say, “as poor as you can imagine.” Fortas walked the long distance to religious school because his family could not afford the streetcar fare. He also faced substantial non-economic challenges, including the bigotry of segregation-era Memphis. “As a Southerner—born and brought up in the Mississippi Delta,” he said, “I recall the outrages of the Ku Klux Klan, directed against Jews, Catholics, and Negroes.”
After attending a small local college on a scholarship, Fortas enrolled, on another scholarship, at Yale Law School, where he became editor in chief of The Yale Law Journal and won a reputation as perhaps the most brilliant student ever to attend the school. He graduated at the start of the Great Depression and felt the draw that many young people did to help Roosevelt with his plans for reviving the nation. Fortas accepted a teaching position at Yale Law School and then took a series of prominent jobs with the federal government, including general counsel of the Public Works Administration, one of the most important New Deal agencies.
Fortas eventually helped to found a law firm, Arnold & Fortas, and became a consummate Washington insider. In 1948, when Johnson won the Democratic Senate primary in Texas by just eighty-seven votes, Fortas helped defend him against credible charges of irregularities in the vote counting. Johnson credited Fortas’s legal advocacy, which included getting an order from the Supreme Court at a crucial moment, for his election to the Senate. In the 1950s and early ’60s, Fortas was one of the nation’s most respected and in-demand lawyers. During the McCarthy era, he helped prepare the playwright Lillian Hellman for her testimony before the House Un-American Activities Committee. When the Supreme Court needed a lawyer to represent Clarence Gideon in Gideon v. Wainwright, it appointed Fortas. Douglas would later say that Fortas’s oral argument in Gideon was “the best single legal argument” he had seen in his time on the Court.
It was Fortas’s ties to Johnson, however, that were pivotal to his rise. Fortas was a close adviser to Johnson in his years as a senator and as vice president. When Johnson became president, Fortas served as a “general handyman,” as he put it, taking on large and small assignments, including recruiting Warren to head the commission that investigated the Kennedy assassination. In 1965, after Johnson moved Goldberg off the Court and over to the United Nations, he put Fortas in his seat. Fortas continued to advise Johnson after he joined the Court. Time magazine went so far as to call him “the true eminence grise of the Johnson Administration.”
In his three years as a justice, Fortas was a key member of the liberal majority, and a strong supporter of civil rights and civil liberties. Fortas advanced student free speech rights considerably by writing a landmark decision holding that high school students had a First Amendment right to wear black armbands to school to protest the Vietnam War. Fortas’s sympathies were invariably with underdogs, including the poor. One of his law clerks recalled that he was determined “to reduce the number of ‘non-persons’ in our society.”
Within two weeks of his meeting with Warren, Johnson announced that he would nominate Fortas to be the next chief justice. To improve Fortas’s chances of being confirmed by the Senate, Johnson at the same time named Homer Thornberry, a former Texas congressman who was on the New Orleans–based U.S. Court of Appeals for the Fifth Circuit, to fill Fortas’s seat. Thornberry was another old friend, who had inherited Johnson’s congressional seat when Johnson moved up to the Senate. Thornberry, a self-made son of two deaf parents, was well liked on Capitol Hill, and Johnson was counting on his personal charm and Texas lineage to appeal to southern senators who wanted another southerner on the Court.
Fortas’s nomination ran into trouble immediately, much of it related to Johnson. Johnson was by now a lame duck, and a tired and unpopular one. He had alienated conservatives with the Great Society and liberals by escalating the Vietnam War. With his presidency winding down, he had little to offer wavering senators for their votes, and they risked little in disappointing him. Johnson, the onetime “Master of the Senate,” had also lost his once unmatched ability to count votes in the Senate. He overestimated how many Democratic votes he could swing to Fortas and he underestimated how much Republicans wanted to stop the nomination of another liberal chief justice, particularly when there was a good chance there would soon be a Republican president who could fill the post with a conservative.
Fortas brought his own set of liabilities. Republican senators accused Johnson of cronyism, arguing that it was not appropriate for him to nominate a close adviser to lead the Court. Fortas’s defenders pointed out that presidents had placed friends on the Court at least since Abraham Lincoln nominated his campaign manager, David Davis. They also noted that any conflict would be short-lived, since Johnson would be out of the White House in January. The cronyism charge was difficult to shake, however, and it caused the choice of Thornberry to backfire: critics called it double cronyism.
In their opposition to Fortas, Republican senators raised objections to his role on the Warren Court. They portrayed him as a wild-eyed integrationist, which hurt him with southern senators, who were a large part of the Democrats’ Senate majority. The Republicans attacked Fortas’s votes in favor of criminal defendants, an issue Nixon had exploited effectively in the 1968 presidential campaign. They also made a great deal of his role in the Court’s obscenity cases, arguing that he was out of touch with Middle American values. Strom Thurmond, of South Carolina, invited his fellow senators to a screening of an X-rated movie, Flaming Creatures, that Fortas had said was not obscene. Patrick Buchanan, a top aide to President Nixon, dubbed the screening the “Fortas Film Festival” and tipped off a Time magazine reporter about the event and his nickname for it.
Another lurking problem for Fortas was resistance to confirming the first Jewish chief justice. The National Socialist White People’s Party called him “this despicable Jew with a ‘red’ record that smells to high heaven,” and other extremist groups were similarly vitriolic. Many senators understood, however, that the anti-Semitism was not limited to the political fringe, and it hurt Fortas, particularly with senators from the South. James Eastland of Mississippi was overheard saying that, after the confirmation of the first black justice, Marshall, “I could not go back to Mississippi if a Jewish Chief Justice swore in the next president.”
Fortas did not help himself with his confirmation testimony, which was less than persuasive on some key points. Among other things, he told the Senate Judiciary Committee that since joining the Court he had made few policy or personnel recommendations to President Johnson. That struck many senators as implausible, even if they did not have the specifics to contradict it.
An issue that emerged at the last minute was Fortas’s finances. The Senate learned that he had supplemented his Court salary with a lectureship at American University Law School, funded by contributions that his former law partner Paul Porter had raised from wealthy businessmen, including some of Fortas’s former clients. Fortas was paid $15,000—more than $110,000 in 2019 dollars—to teach a weekly seminar over the summer. Other justices taught classes and were paid, but the amount of Fortas’s stipend and the funding sources created an impression that he was unduly profiting from his current position and raised concerns about whether he would feel any debt to the wealthy people who had helped underwrite his position.
Despite the attacks, Fortas’s nomination remained broadly popular. In a Harris poll in August, respondents favored his confirmation by a nearly two-to-one margin. When the nomination reached the Senate floor in September, Fortas appeared to have a majority of senators on his side. His opponents had decided to filibuster, however, and it soon became clear that he did not have the votes necessary to cut off debate. Johnson was forced to withdraw Fortas’s name, the first time a Supreme Court nomination was defeated by a filibuster. With Fortas’s seat not opening up, Thornberry remained on the Fifth Circuit. Nixon was quietly delighted by the outcome. He “wanted the Fortas nomination killed,” Patrick Buchanan later recalled, but he “did not want our fingerprints on the murder weapon.”
Johnson considered making another nomination in the final months of his presidency. He gave some thought to trying to bring Goldberg back from the United Nations. Johnson was convinced, however, that if he sent Goldberg’s name to the Senate, “the same damned old snakes” would succeed in blocking him. In the end, Johnson did not make another nomination before leaving the White House. He would later call Fortas’s rejection and everything that followed “the final blow to an unhappy, frustrating year.”
On November 5, 1968, Nixon defeated Humphrey, edging him out by 0.7 percent in the popular vote but scoring a larger Electoral College win. In January, Nixon took office knowing that he would be naming a new chief justice. It was a rare opportunity: Nixon was the thirty-seventh president, but Warren was only the fourteenth chief justice. Nixon, however, was already eager for more vacancies so he could bring the Warren Court to an end and lock in a conservative majority. He obsessed over when the older justices would be gone. “From the time Nixon arrived at the White House he continually played his shuffle-the-people game with the Supreme Court,” his chief domestic policy adviser, John Ehrlichman, recalled. “As I sat listening to him he would daydream about whom he might put on the Court in place of Black or Harlan or Douglas.”
Not content to wait for the Court’s membership to turn over on its own, Nixon went on the offensive. He used the resources of the White House and the Justice Department to try to threaten liberal justices into resigning. His first target was Fortas, who had been weakened by his Senate rejection. “Nixon cleared his desk of other work to focus on getting Fortas off the Court,” according to Ehrlichman. William Lambert, a Life magazine reporter with ties to the White House, had been tipped off about Fortas’s relationship with Louis Wolfson, a wealthy investor and supporter of liberal causes who was under investigation by the Securities and Exchange Commission. The Justice Department began “spreading rumors and leaking . . . information” to Lambert, recalled John Dean, a top Nixon Justice Department lawyer and future White House counsel.
Wolfson, a former client of Fortas’s, had started a foundation to promote civil rights and religious liberty, and he asked Fortas to serve as a consultant. The justice agreed to work for the Wolfson Family Foundation while he served on the Court and accepted a stipend of $20,000 a year. Fortas told his law clerks that he had accepted Wolfson’s offer because he believed he would be able to do good things and that it would not interfere with his work on the Court. There was no rule against justices and federal judges doing paid work for nonprofit foundations, and Fortas was not the only one to have an arrangement of this kind.
After Fortas learned that Wolfson was under investigation, he ended his ties to the foundation. Wolfson was indicted on charges relating to stock transactions, and a few months later Fortas returned the $20,000 he had already received. There were reports that Wolfson had dropped Fortas’s name when he was under investigation, but Fortas had not authorized him to, and Fortas did not offer Wolfson any advice or contact anyone on his behalf. There was nothing in Fortas’s relationship with Wolfson that broke any law, nor had Fortas violated any Court ethics rule, since the Court had no ethics rules.
Nixon nevertheless saw an opening in Fortas’s connections to Wolfson, and he put his attorney general, John Mitchell, in charge of the matter. Mitchell, who had been Nixon’s campaign manager in 1968, played political hardball, and he was not averse to breaking the law to get what he wanted. He would later be convicted of perjury, obstruction of justice, and conspiracy in the Watergate scandal and become the first attorney general in history to serve prison time. Mitchell plotted against Fortas with Will Wilson, the head of the Justice Department’s Criminal Division, who, in addition to being a loyal Mitchell lieutenant, held a grudge against Johnson, whom he blamed for destroying his political career back in Texas.
When Life’s investigation of Fortas stalled, the Justice Department told Lambert it had opened a criminal investigation into Fortas’s ties to Wolfson. The leak was improper, since Justice Department investigations were supposed to remain confidential. It was also misleading, because the department had not done much investigating and had learned little of interest. The confirmation, however, encouraged Lambert to continue with his reporting.
There was clearly much about the investigation that was improper, but beyond that, there was a larger issue of whether the Justice Department should be investigating a sitting justice at all. The founders gave justices and federal judges life tenure and provided impeachment as a means to remove them from office. The question of whether the Justice Department had the authority to investigate Fortas was given to William Rehnquist, a highly political assistant attorney general, to research. Rehnquist prepared a memorandum for Mitchell reassuring him that there would be no constitutional problem with prosecuting Fortas while he was on the Court.
While Life and the Justice Department forged ahead, Nixon received constant updates in the Oval Office. Mitchell and Wilson raised the stakes for Fortas by reopening an old criminal investigation of his wife, Carolyn Agger, who was a tax partner at his former law firm. Agger had previously been investigated over allegations that she improperly withheld documents in a case, but she was cleared of any charges. If the Nixon Justice Department prosecuted her and won a conviction, it would have been a felony and the punishment could have been considerable. Mitchell’s pursuit of Agger was, Dean said, “purely a means to torture Fortas.”
In early May 1969, Life published its exposé, “The Justice . . . and the Stock Manipulator.” It described the $20,000 payment Fortas had accepted from the Wolfson foundation and indicated that Wolfson had dropped Fortas’s name when he got in trouble, but it did not actually say that Fortas had done anything improper. Still, the piece prompted sharp criticism of Fortas, in Washington and on editorial pages across the country, and calls for him to step down. Some of his old Republican enemies in Congress began to talk about impeachment, and his onetime allies did not rush to his defense.
Nixon did not want Fortas impeached. He wanted something quicker and simpler: Fortas’s resignation. He told congressional Republicans to hold off while his staff went to work. On May 7, Mitchell paid an extraordinary visit to Warren at the Court, bringing investigative documents with him. Although none were legally incriminating, one was a copy of Fortas’s agreement with the Wolfson foundation, which showed that Fortas’s annual retainer was to continue throughout his life and pass on to his wife after his death. As Mitchell anticipated, it was an arrangement Warren found troubling. Nixon and Mitchell knew that Warren was fiercely protective of the Court and of his own legacy. He would not want to end his tenure with a major ethics scandal, and he certainly would not want one of his justices charged with a federal crime.
Warren should have resisted Mitchell’s overtures. He should have realized Nixon’s only interest was in driving a liberal justice off the Court. He also should have refused, purely as a matter of ethics, to meet secretly with an attorney general to discuss an ongoing investigation. Nixon, however, had conducted a charm offensive to win Warren over, including a black-tie dinner in his honor in the East Room of the White House, which the chief justice called “the most thrilling social event of my half century of public life.” Mitchell and Warren met for the first time at the dinner, and Dean said that when Mitchell visited the Court, “the glow of good feeling still radiated from that evening.”
The Justice Department kept coming after Fortas. Wilson met with Wolfson at his federal prison in Florida and made him testify under oath about his relationship with the beleaguered justice. The Justice Department wanted Wolfson to say that Fortas had helped him with his legal problems, but Wolfson insisted he had not. For all of their effort, Nixon and his Justice Department never found any evidence that Fortas had committed a crime. John Dean later conceded that the administration was “not even close” to having “the goods on Fortas.” According to Dean, “Mitchell’s talk was pure bluff.”
Fortas did what he could to resist the attacks. Even with impeachment talk on hold, he began planning a defense, asking a law clerk to prepare a memo on whether a sitting justice could be forced to testify before Congress. It was not clear how much danger Fortas was in. There was considerable ill will toward him in Congress, and it grew with each new revelation, but at the same time, there were large Democratic majorities in the House, which would have to impeach, and in the Senate, which would have to convict by a two-thirds vote. After the unpleasantness of his Senate rejection the previous fall, however, a congressional investigation was not something Fortas looked forward to.
The Nixon administration did not relent, and it continued to focus on Warren as the best way to remove Fortas. On May 12, the Justice Department delivered another packet to Warren, marked “Personal and Confidential: For Eyes Only of the Chief Justice,” with documents that made clear that its investigation was still under way. At the same time, Mitchell spoke publicly about meeting with Warren and giving him “certain information known by me, which might be of aid to him,” bringing vague allegations to a wide audience without having to produce any actual evidence of illegality. In an editorial, The New York Times chastised Mitchell for “slander by indirection” and declared that his machinations had “every aspect of an ugly squeeze play by the administration to force Justice Fortas off the bench.”
The Nixon administration’s courtship of Warren and the public pressure it exerted on him had their intended effect. On the morning of May 13, Warren called a meeting of the justices to discuss the Fortas matter. He laid out the evidence he had received against Fortas, and Fortas was forced to defend his actions in front of his colleagues. It was a painfully uncomfortable meeting, and it became clear as it proceeded that Fortas’s time on the Court was coming to an end. The following day, May 14, Fortas wrote a letter of resignation to the president. In the end, Nixon’s “ugly squeeze play” had worked.
Many factors came together to force Fortas’s decision. The barrage of public attacks on him, prompted by the Nixon administration’s constant leaks to the media, took their toll. So did his concern that he might have to testify before Congress and perhaps even face impeachment. Fortas also had to worry that the Justice Department would criminally prosecute him or his wife. Fortas told his former law partner Paul Porter that he had simply “had it.” Of all of the sources of pressure on Fortas, however, the Nixon administration’s shrewd use of Warren may have been the decisive factor. The members of Nixon’s inner circle were certainly proudest of how they had manipulated a liberal chief justice to help drive a liberal justice off the Court. Warren did “the job well,” Ehrlichman wrote in his memoirs. “He had persuaded Abe Fortas to resign, and suddenly we had two vacant seats on the court.”
When the news of Fortas’s resignation broke, there was an impromptu party in the attorney general’s office. Mitchell gathered the staff members who had worked on the Fortas project and served celebratory drinks. Nixon called in to congratulate the team. The excitement over Fortas’s departure was mixed with more than a little astonishment. “Mitchell’s bluff had succeeded beyond his wildest expectations,” Dean said.
Nearly two decades later, Pennsylvania State University political scientist Bruce Allen Murphy wrote an extensive study of Fortas’s fall. He concluded that Fortas had been badly treated. Murphy acknowledged that Fortas had made mistakes, including being slow to return the foundation money after Wolfson was indicted, but his investigation confirmed that Fortas had not broken any laws. Murphy also found that, while Wolfson was a problematic figure, Fortas’s contact with him “was limited and soon terminated.” Murphy concluded that “Fortas paid a far greater price for his ‘transgressions’ than seems justified.”
One of last votes Fortas cast was in a major welfare rights decision, Shapiro v. Thompson. The “Thompson” in the case was Vivian Thompson, a pregnant nineteen-year-old who had moved to Hartford, Connecticut, from Dorchester, Massachusetts, to be closer to her mother when she gave birth. When Thompson applied for AFDC, she was turned down under a Connecticut law that denied welfare benefits to anyone who had not lived in the state for a year.
Connecticut was one of forty states with “durational residency requirements” for welfare benefits. These restrictions were a modern version of English “Poor Laws,” which required poor people to be “settled” in a community to be eligible for relief. In the old English model, care for the poor was done at the local level and communities were responsible for only “their” poor. American advocates for the poor had been campaigning against durational residency requirements since tenBroek argued against them in his article “The Constitution and the Right of Free Movement” in 1955. As the welfare rights movement gained force in the 1960s, opposition to the rule had grown.
Many poverty lawyers hoped Shapiro v. Thompson would be the case in which the Court finally handed down a sweeping ruling that gave the poor constitutional protection as a class. There were two obvious ways it could do that. The Court could designate the poor a suspect class, following on Carolene Products footnote 4, and hold that because the residency rule particularly burdened poor people it should be reviewed under strict scrutiny. Alternatively, the Court could declare that receiving welfare was a “fundamental interest.” The Court had decided that in addition to the suspect classes of footnote 4, it would designate certain interests—such as travel or having children—as so fundamental that it would apply strict scrutiny to laws that interfered with them. If the Court decided that Thompson had a fundamental interest in receiving welfare as soon as she arrived in Connecticut, it could apply strict scrutiny to the durational residency rule.
When the Court applied strict scrutiny to a law, there was a very good chance it would hold it to be unconstitutional. The Court would uphold a law under strict scrutiny only if the government could show that it had a “compelling” interest in having the law, and that the law was “narrowly tailored” to achieve that interest. It was not clear that Connecticut would be able to show that it had a compelling interest in the durational residency rule, which did little more than save it money. If the Court took either route to applying strict scrutiny—finding the poor to be a suspect class or holding welfare to be a fundamental interest—it would not only make it likely that the durational residency rule would be struck down but would also give the poor a powerful new constitutional tool to use in future cases.
There were also more moderate courses available to the Court. Thompson’s lawyer, Archibald Cox, the Harvard law professor who would later become Watergate special prosecutor, made these more modest arguments to the Court, because he thought they were more likely to prevail. Cox urged the justices to hold that the rule violated the Equal Protection Clause not because it discriminated against the poor more than the rich, but because it discriminated against new residents of the state more than longtime residents. Cox also argued that the rule infringed on the right to travel, the same rationale the Court had used in 1941 to strike down California’s “anti-Okie” law. If the Court accepted either of these arguments, it could overturn Connecticut’s residency rule without giving poor people as a class significant new rights.
Shapiro v. Thompson was argued before the 1968 presidential election, but by the time the Court decided it, on April 21, 1969, Nixon was president. He had not, however, been able to nominate any justices yet—Warren and Fortas had not yet stepped down, and there was still a solid majority of justices who were sympathetic to welfare recipients like Thompson. The Court struck down the Connecticut residency rule by a 6–3 vote, in an opinion written by Brennan.
It was no surprise that Brennan wrote the Shapiro opinion, or that he had become one of the Court’s strongest advocates for the rights of the poor. Although he was an Eisenhower nominee, Brennan was a liberal Democrat who had known people like Vivian Thompson his whole life. His parents had been born into poverty in Ireland, and he grew up in a working-class part of Newark, New Jersey, in a large family in which money was tight.
Brennan escaped his neighborhood and a heavy-drinking father to attend Harvard Law School. He was serving on the New Jersey Supreme Court when President Eisenhower nominated him to the Supreme Court in 1956. Eisenhower chose Brennan for political reasons, not ideological ones: he thought it would help him in his reelection campaign to name a Catholic from the Northeast. As had happened with Warren, Eisenhower ended up appointing a crusading liberal to the Court without intending to. Brennan was a pious Catholic and a firm believer in “human dignity,” a phrase he used often. He quickly became a pillar of the Warren Court’s emerging liberal majority.
In his Shapiro opinion, Brennan took a narrow approach, holding that Connecticut’s durational residency requirement violated Thompson’s right to interstate travel. Limitations of this kind discourage a poor person “who desires to migrate, resettle, find a new job, and start a new life,” he said, which was “constitutionally impermissible.” Brennan’s opinion did not recognize welfare as a fundamental interest, but he made a gesture in that direction. Connecticut’s durational residency requirement, he noted, prevented poor people from receiving “the very means to subsist—food, shelter, and other necessities of life.”
Shapiro was another important victory for the poor, removing a barrier to receiving welfare benefits in forty states, in a case that—despite the hopes of the poverty law community—could have gone either way. Durational residency requirements were a well-established part of the welfare system, and they did not incur the same level of animosity as the “man in the house” rule. Court watchers also suspected that Warren, as a former governor and state attorney general, would sympathize with Connecticut and vote to uphold the rule. On that point they were right: Warren dissented in Shapiro, in a rare vote against the poor.
Although Shapiro was a clear victory for poor people, it was another limited one. As it had been doing since Edwards v. California, the Court had once again ruled for the poor in a way that did not expand their constitutional rights as a group. Two justices, Douglas and Fortas, told their colleagues that they were prepared to rule for Thompson on wealth discrimination grounds. Even if Marshall and Brennan agreed, however, there would not be five votes for such a bold position. With Warren voting against Thompson, Brennan had to win over Stewart, White, or Harlan to build a five-justice majority, and none of them would be likely to support a strong wealth discrimination holding. The result was a decision that helped the poor but once again did not elevate their status under the Constitution.
As narrow as the Shapiro decision was, there were indications in it that the Court was moving toward doing something more substantial for the poor—notably Brennan’s reference to “the very means to subsist.” It was a decision that left poverty lawyers with hope, and conservatives concerned. Philip Kurland, a University of Chicago law professor who was a Warren Court critic, argued in an essay entitled “The Judicial Road to Social Welfare” that the Court in Shapiro had actually come “close to creating a constitutional right to welfare assistance.”
The Warren Court’s liberal majority was not only helping those at the very bottom of the economy—it was also showing a newfound concern for working-class Americans. Throughout its history, the Court had favored employers over workers in a wide variety of disputes. In the Progressive Era, it had struck down state and federal laws establishing minimum wages and maximum hours and cracking down on child labor. During the New Deal, it held that major new laws designed to protect workers were unconstitutional, and it interpreted laws about unionization in ways that helped management.
The Warren Court, by contrast, had an inherent sympathy for workers and the difficulties they faced. In June 1969, the Court issued a strikingly pro-worker decision. Sniadach v. Family Finance Corp. was a challenge to a Wisconsin wage garnishment law that made it easy for companies to freeze the salaries of people they said owed them money. The creditors simply had to notify workers’ employers to freeze their wages, and the workers would not receive their full paycheck until they paid what was owed or proved they did not owe it. The Court ruled, by a 7–1 vote, that letting workers’ wages be garnished without first providing them with a hearing at which they could defend themselves “violates the fundamental principles of due process.” Only eight justices voted, because Fortas was now gone.
The Sniadach decision was significant in its own right, but it was also important for the way the Court talked about working people. Douglas, writing for six justices, emphasized the power imbalance in the creditor-debtor relationship and noted that the debts that bill collectors tried to collect on were often “fraudulent.” He also expressed concern that allowing wages to be garnished without a hearing could, “as a practical matter, drive a wage-earning family to the wall.”
With Shapiro and Sniadach, which were decided within seven weeks of each other, the Warren Court’s recognition of the rights of low-income Americans reached a new level. The Court did not merely bring important, substantive relief to welfare applicants and salaried workers. It also made clear that it understood the challenging lives that low-income Americans led, and it conveyed that it was troubled by laws that interfered with the ability of people to come up with the means of subsistence. The Court seemed to be moving, slowly but surely, toward finally taking a bolder stand on behalf of the poor. Then, very suddenly, the Warren Court collapsed—and the grand visions of advocates for the poor collapsed with it.
Warren retired in June 1969, the month after Fortas left, holding to his promise from a year earlier. Warren knew that, with Nixon now in the White House, his successor as chief justice would not be a liberal—and that ideological change was coming to the Court. As he stepped down, Warren declared somewhat wistfully that he hoped the Warren Court would be remembered as “the people’s court.”
Warren’s departure marked the end of one of the Court’s most consequential eras—and of one of the most controversial public service careers in American history. Warren had been a lightning rod from his first year on the Court, fifteen years earlier, when it decided Brown v. Board of Education. To civil rights and civil liberties supporters, the departing chief justice was a great hero. Many conservatives, however, believed that he had led the Court to impose dangerous social policies on the nation. Hubert Humphrey, speaking for many liberals, said that if President Eisenhower “had done nothing else other than appoint Warren Chief Justice, he would have earned a very important place in the history of the United States.” Eisenhower himself had a different view. When asked what had been his biggest mistake as president, he replied, “The appointment of that S.O.B. Earl Warren.”
Warren’s successor was Warren Burger, a judge on the U.S. Court of Appeals for the D.C. Circuit. Burger was not known for his legal brilliance, but he had other qualities that appealed to Nixon. He “looked like a judge” and “talked like a judge,” Ehrlichman said. He was also extremely conservative, he despised the Warren Court, and he was desperate to ingratiate himself to anyone who could help him fulfill his ambition of becoming a justice. Burger “wanted a seat on the Supreme Court so passionately,” Ehrlichman recalled, that “he would have agreed to almost anything to get it.”
Burger had strong midwestern Republican roots. He grew up on his family’s farm in St. Paul, Minnesota, and spent two decades at a white-shoe law firm in his hometown. His rise, like Warren’s, began as a reward for his role at the 1952 Republican National Convention. As floor manager for Minnesota favorite son Harold Stassen, Burger helped swing his delegation to Eisenhower. When Eisenhower won, he paid Burger back by naming him to head the Justice Department’s Civil Division.
A few years later, President Eisenhower nominated Burger to the D.C. Circuit. In the 1960s, the D.C. Circuit, like the Warren Court, moved the law in a progressive direction on civil rights, criminal law, and other issues. Burger was one of the court’s most resolute conservatives, regularly battling its liberal judges. Burger did not just disagree with them—he held them in contempt. “If I were to stand still for some of the idiocy that is put forth as legal and constitutional profundity I would, I am sure, want to shoot myself in later years,” he told a colleague.
Burger made a strong impression on the Nixon administration when he came to the White House to swear in the economics team. Using the opportunity to campaign for a seat on the Court, he brought along a copy of a U.S. News & World Report reprint of a speech he had given at Ripon College, advocating a law-and-order approach to criminal justice. During the visit, Burger urged Nixon to appoint more strong conservatives to the D.C. Circuit, which he called the worst of all the federal appeals courts in the country.
Nixon nominated Burger on May 21, 1969, before Warren retired, and the Senate confirmed him just eighteen days later, by a 74–3 vote. Burger’s arrival started an ideological realignment, but his vote alone would not transform the Court. When he arrived, there were still three solid liberals: Douglas, Brennan, and Marshall. There were four justices who were somewhere between centrist and conservative—Black, White, Stewart, and Harlan—and one vacant seat, Fortas’s. Burger would need to hold on to all four centrist-to-conservative justices to form a five-justice conservative majority—something he could hardly count on. He had laid out his view of what was needed back in March, before his own nomination, in a letter to a fellow judge. “What can one man do to stop the nonsense?” he said. “RN can only straighten that place out if he gets four appointments.”
With the ideology of the Court now murky, poverty lawyers still held out hope that it would expand the rights of poor people. Emboldened by its rulings striking down Connecticut’s durational residency requirement for welfare and Wisconsin’s wage garnishment law, they had begun promoting the boldest idea of all: that every American had a constitutional right to a minimum level of economic support. In September 1969, in a New York Times article headlined “Guarantee of ‘Right to Live’ Is Urged,” Edward Sparer called on the Court to recognize a right to subsistence. Sparer argued that the rights enumerated in the Constitution presumed that people were alive and able to engage in them. “Speech, press and worship require speakers, writers and worshipers,” he insisted. “Let the unemployed man lie starving . . . and you have killed off the speaker, the writer and the worshiper.” As Sparer saw it, “no legislative majority ought to be able to vote in favor of taking away the right to live.” Other progressive legal scholars agreed. Norman Dorsen, a New York University law professor and American Civil Liberties Union general counsel, endorsed a right to live as “sound legally as well as just in principle.”
As the Court began its 1969–70 term, the Harvard Law Review, the nation’s preeminent legal journal, published a high-profile argument for a constitutional right to subsistence. The first issue of the law review each year, which appeared in November, focused on the Supreme Court, and it began with a foreword that discussed the current state of the law. In the fall of 1969, Frank Michelman, a young Harvard law professor, wrote the foreword, which was entitled “On Protecting the Poor Through the Fourteenth Amendment.” Michelman, who had served as a law clerk to Brennan before joining the Harvard faculty, suggested that the Equal Protection Clause could be read to guarantee a right to “minimum protection against economic hazard.” That guarantee could include a right to food, housing, and other basic necessities for those who were without them.
There were other scholars who rejected the idea of a right to economic support. For many, it was an article of faith that the Constitution guaranteed almost exclusively “negative” rights, such as the right not to be prevented from speaking and the right not to be unreasonably searched, not “positive” rights to receive things from the government. Herbert Wechsler, an eminent constitutional law professor at Columbia Law School, flatly told The New York Times that a right to subsistence was “not valid as an interpretation of the Constitution.”
Even at the height of the Warren Court, when it was still expanding the rights of the poor, it would have been difficult to persuade the justices to recognize a right to subsistence. Now that Burger was leading the Court and Nixon would be filling Fortas’s vacant seat, it very clearly felt like an idea whose time had passed. The New York Times and Harvard Law Review articles, with their bold vision for taking the Warren Court’s poverty law jurisprudence to a new level, seemed to be trying to persuade a Court that no longer existed.
When the new term began in the fall of 1969, with Burger presiding over an eight-justice Court, there was a major welfare case on the docket. Goldberg v. Kelly challenged the abrupt way in which welfare recipients were often thrown off the rolls, without notice or an opportunity to be heard. The issue was a high priority for the welfare rights movement because families whose benefits were taken away based on erroneous facts or arbitrary decisions by caseworkers often found themselves unable to afford rent, heat, or food until the denial could be reversed. Mobilization for Youth’s Legal Unit, the legal organization founded by Sparer, and other legal services lawyers had carefully prepared Goldberg v. Kelly, assembling a class of plaintiffs with sympathetic stories that showed the harm done by cutting off welfare benefits without a hearing.
John Kelly, the lead plaintiff in the case, was a disabled New York City man who was unable to work because of injuries from a hit-and-run accident. He received $40.03 a week in state welfare payments, but his caseworker had made his benefits conditional on his moving into the Barbara Hotel. Kelly moved into the hotel but found that it was filled with drug addicts and unsafe, so he moved in with a friend instead. When the caseworker learned what Kelly had done, he abruptly cut off his benefits and took back a check he had been given to buy a winter coat.
Kelly argued that the Due Process Clause required the city to provide him with a “fair hearing” before his benefits were cut off. The claim followed directly from Charles Reich’s 1964 Yale Law Review article “The New Property,” which read like a legal brief for Kelly. The city, for its part, argued that welfare recipients’ interest in having a hearing before their benefits were cut off was outweighed by the government’s interest in conserving administrative and fiscal resources.
On March 23, 1970, the Court ruled for Kelly by a 5–3 vote, with Brennan writing for the majority. Even though it was now the Burger Court and Fortas’s reliable liberal vote was gone, Brennan managed to assemble a five-vote majority holding that the city had violated Kelly’s due process rights. Brennan had been waiting for this day. After “The New Property” appeared, he had talked about it in a speech at George Washington University Law School. When he reviewed certiorari petitions, the papers filed by parties who wanted the Court to hear their appeals, Brennan had looked for a case raising the issues Reich had discussed. The Court found it in John Kelly’s lawsuit.
Brennan’s opinion closely followed the reasoning of “The New Property,” which he cited in a footnote. Since welfare provides recipients with “the means to obtain essential food, clothing, housing, and medical care,” he said, ending benefits when there was a question about eligibility could “deprive an eligible recipient of the very means by which to live while he waits.” Brennan said the Due Process Clause required that, before welfare benefits were terminated, the recipient had to have “timely and adequate notice” and a hearing that included “minimum procedural safeguards.”
Goldberg v. Kelly, which was reported on the front page of The New York Times, was a major triumph for the poor. The Court handed poverty lawyers across the country a powerful new tool to use in defending their clients against incompetent or vindictive welfare officials. With a single ruling, it had protected more than 8.4 million AFDC recipients from suddenly losing their benefits, giving them a new measure of economic security.
Goldberg also represented another advance in how the Court discussed poverty. Brennan said, in his opinion for the Court, that “we have come to recognize that forces not within the control of the poor contribute to their poverty.” He also said that welfare, “by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community.” The Court had come a long way from the days when it referred to poor people as a “pestilence.” It was now viewing poverty structurally and poor people as, to a significant extent, victims of a flawed economic and social order.
The Court did something else important in Goldberg: it tied the rights of the poor more closely than ever to the Constitution. It did not hold that poor people were a suspect class or recognize that receiving welfare was a fundamental interest. It did, however, hold that termination of welfare benefits required a level of due process that other government actions did not. The decision was a declaration that, in a case not related to travel, criminal prosecutions, voting, or any other protected right, a class of poor people were entitled to extra constitutional protection simply because of their vulnerable status.
In all of the excitement over Goldberg, there was little discussion of how precarious the ruling was. Brennan had to work hard, with Fortas gone, to cobble together a five-justice majority. He had the votes of the Court’s three liberals, and the centrist White. Black, the onetime New Deal crusader, and the centrist conservative Stewart had joined Burger in siding with New York City. The fifth vote Brennan won over was Harlan, the Court’s most conservative member until Burger arrived, who would hardly be a reliable ally of the poor in future cases.
Burger, in addition to refusing to join Brennan’s majority opinion, wrote a dissent with a pointed message. He complained that Goldberg exhibited a “now familiar constitutionalizing syndrome.” The way it worked, he said, was that “once some presumed flaw is observed, the Court then eagerly accepts the invitation to find a constitutionally ‘rooted’ remedy.” If there is not an express constitutional provision governing the issue, he said, “it is then seen as ‘implicit’ or commanded by the vague and nebulous concept of ‘fairness.’” In the midst of one of the greatest victories for poor people in the history of the Court, the new chief justice made one thing clear: he was intent on bringing an end to rulings like it as soon as he could get the votes.