When one reads the history of the state of Alabama, "courageous judicial decisions" appears to be an oxymoron because there have not been many such decisions. Most that did occur were related in some fashion to the racial problems that have existed in Alabama from the very beginning of statehood. It is important that we understand just what we mean when we speak of courage. Sustained courage emanates from character, which in itself takes a lifetime to build. Courage can be defined as the moral strength that permits one to face fear and difficulty. Courage requires a certain amount of leadership, and this leadership behavior is admirable and excellent. Making judicial decisions that changed ways of living in Alabama during the days of segregation required courage. These decisions could have severe consequences for one's safety and could affect one's family. Yet despite the potential consequences, there were at least four judges in Alabama who made decisions based on what they thought was the right thing to do and would lead Alabama in the right direction. The judges whose names come immediately to the forefront are George Stone, Thomas G. Jones, James E. Horton Jr., and Frank M. Johnson.

Courageous Judicial Decisions in Alabama

By Jack Kushner

iUniverse, Inc.

Copyright © 2011 Dr. Jack Kushner
All right reserved.
ISBN: 978-1-4502-8347-2

Contents

Introduction........................................................xiii1 Coping with Jim Crow Laws and Customs.............................12 What Is Courage? Who Is Courageous?...............................33 Judicial Behavior.................................................84 Chief Justice George Stone of Alabama.............................155 Judge Thomas Goode Jones..........................................336 The Scottsboro Boys and Judge James E. Horton.....................497 Judge Frank M. Johnson Jr.........................................588 Rule of Law.......................................................799 Becoming Alabama..................................................84Bibliography........................................................97

Chapter One

Coping with Jim Crow Laws and Customs

When African American citizens in the United States of America wanted to travel from one place to another prior to the passage of civil rights laws dealing with public accommodations, they frequently were denied the right to stay at selected hotels, eat at various restaurants, purchase gasoline at service stations, or shop at a few stores (McGee). In 1936, and afterward, a booklet was available that guided them to accommodations that did not insult them by denying service because they were black. By following this guide, African Americans could locate hotels, restaurants, shops, and gas stations that would serve them. By 1949, the booklet had grown to eighty pages. A postal employee named Victor H. Green conceived of this booklet, initially called the Negro Motorist Green Book: An International Travel Guide and later known simply as the Green Book. To most Americans, this book and the problems to which it related were invisible because they did not fully realize that if an African American family wanted to travel from Alabama to New York, they had to take their food and prepare to have difficulty finding a place to stay.

In addition to hotels, the guide mentioned "tourist homes," which were private residences made available to African Americans. Calvin Alexander Ramsey, an Atlanta writer, wrote a play called The Green Book, elucidating this problem. Julian Bond, who now is a professor at American University said, "It was a guidebook that told you not where the best places were to eat, but where there was any place"(McGee).

Traveling on the roads of America could be exhilarating, but such was not the experience for many African Americans because they encountered "sunset laws" in many Southern towns. These laws mandated that African Americans be out of town by the end of the day. So in effect, getting out on the American highways was a privilege for white people. This idea was expressed in more detail by Cotton Seiller in the book Republic of Drivers: A Cultural History of Automobility in America. All of these guides and related books ceased publication once the Civil Rights Act passed in 1964.

Chapter Two

What Is Courage? Who Is Courageous?

When one reads the history of the state of Alabama, "courageous judicial decisions" appears to be an oxymoron because there have not been many such decisions. Most that did occur were related in some fashion to the racial problems that have existed in Alabama from the very beginning of statehood. It is important that we understand just what we mean when we speak of courage. Sustained courage emanates from character, which in itself takes a lifetime to build. Courage can be defined as the moral strength that permits one to face fear and difficulty. Courage requires a certain amount of leadership, and this leadership behavior is admirable and excellent. Making judicial decisions that changed ways of living in Alabama during the days of segregation required courage. These decisions could have severe consequences for one's safety and could affect one's family. Yet despite the potential consequences, there were at least four judges in Alabama who made decisions based on what they thought was the right thing to do and would lead Alabama in the right direction. The judges whose names come immediately to the forefront are George Stone, Thomas G. Jones, James E. Horton Jr., and Frank M. Johnson. Before the four judges discussed in the book are introduced, consider the following extract from the book Courage by Gus Lee, in which Major H. Norman Schwarzkopf tells his troops a story:

"Imagine that you and the troops for which you are responsible are on an international border. The enemy can cross it and strike at you with impunity. But you can't cross the border. That order comes from the commander in chief.

"Every night, the enemy crosses the border to kill and wound your men, who are Vietnamese airborne volunteers in your care.

"Every night, you chase the enemy, but they escape at the border, where you stop, as you are ordered. Here's the question: when the enemy hits you again tonight, do you pursue them over the line? Or do you follow orders and halt at the border? Questions?" Hands went up.

"If we cross it, will it start a new war?" "No."

"If we cross the border, can we destroy the enemy?" "Yes."

"If we cross it and get caught, are we in big trouble?" "Absolutely. Your president will be very displeased. With you. Personally."

There were no more questions.

"Gentlemen, STOP or GO? Write."

It's pretty obvious, I thought. If I've learned one thing here, it's that you follow orders. Especially from the president. Right from wrong. Disobeying the president would be very wrong. OK. I wrote: STOP.

When the last pencil dropped, Major Schwarzkopf asked, "How many said STOP?" I raised my hand. So did most of the section.

"How many said Go?" The major smiled at the few hands.

"There are two kinds of people in the world: leaders and careerists. Leaders have character. They act for what is right. They would die for their men." His words sank into the chalkboards, and the wall.

"Careerists," he said, making the word sound like a crime against God, "are self centered, self absorbed. They act out of selfishness. They sacrifice their men for a promotion. They lie to pump up results.

"They save their skins instead of others'. Careerists can't really lead because their men do not trust them and will not willingly follow.

"The correct answer for a leader, is clear.

"You cross the border. You destroy the enemy to protect your men. You then take the personal consequences to your career, knowing that you violated an order but acted for what is right. You feel pride in getting court-martialed and being reduced to a private.

"Everyone's a leader or isn't. It's not rank. It's character."

"Major Schwarzkopf was not teaching abstract theory; only months before, he had faced that fact pattern on the Cambodian border. A careerist would have let his men keep dying."

"He had risked his career but had protected his people and therefore his priceless integrity and his authority to lead others."

And so it is with the various judges described in this book. Each one of them risked his career to do what he thought was right. In some cases, the judges risked their lives and the lives of their families by making decisions that they thought were the correct ones.

For a judge to initiate change in a society through his or her decisions, the judge has to be ready to assume responsibility for that change. A judge has to know when he or she makes such a decision that a certain amount of personal risk and sacrifice comes with making a difference (McGarvie 40–56). A judge has to be devoted to democracy and fairness for all citizens. The judge has to have a personal desire to improve the living conditions in his or her area or in the country. These courageous judges serve as thought catalysts for change and as effective change agents (McGarvie 51). "They are willing and able to take the risk required in change and to build the collaborative relationships that make performance sustainable." (McGarvie 51).

Demonstrations of courage are not limited to the battlefield, but occur in all phases of life. This book shows how judges demonstrated courage. A folksy definition of courage in life is seen in the following quotations:

The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box. As you grow older, you'll see white men cheat black men everyday of your life, but let me tell you something and don't you forget it—whenever a white man does that to a black man, no matter who he is, how rich he is, or how fine a family he comes from, that white man is trash.

—spoken by Atticus in To Kill a Mockingbird (Harper Lee 295).

I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It's when you know you're licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.

—spoken by Atticus in To Kill a Mockingbird (Harper Lee 149).

As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever. Clarence Darrow as quoted in American Dream, a Search for Justice (2003). by (Sherman D. Manning, p 125).

Never do anything against a conscience even if the state demands it. Albert Einstein (As quoted by Virgil Henshaw in Albert Einstein: Philosopher-Scientist, (1949). edited by Paul A. Schipp).

Cowardice asks the question: is it safe? Expediency asks the question: is it politic? Vanity asks the question: is it popular? But conscience asks the question: is it right? And there comes a time when one must take a position that is neither safe, nor politic, nor popular, but one must take it simply because it is right.

—Martin Luther King Jr, Remaining Awake Through a Great Revolution, 1968.

I swore never to be silent whenever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victims. Silence encourages the tormentor, never the tormented. Elie Wiesel, in Nobel Acceptance Speech, 1968

Chapter Three

Judicial Behavior

Prior to discussing the decisions made by the four judges, we should give consideration to some of the thoughts that Dorothy Rabinowitz, a member of the Wall Street Editorial Board, rendered in her book No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times. She cites Charles-Louis de Secondat, Baron de Montesquieu, who wrote, "There is no crueler tyranny than that which is perpetrated under the shield of law and in the name of justice" (vi). She reveals how certain American citizens became targets of the American justice system, a system that they loved and supported. But they learned that they could have their lives destroyed and could be sent to prison for crimes they did not commit because of the hypocrisy and indifference of the justice system. In many cases there were people who defended them and demonstrated the courage to speak out.

As we discuss judicial decisions in more detail, a statement by Joseph C. Hutcheson Jr. in his article "The Judgment Intuitive: The Function of the `Hunch'" is relevant: "In my youthful way, I recognized four kinds of judgments; first the cognitive, of and by reflection and logomancy; second, aleatory, of and by the dice; third, intuitive, of and by feeling or hunching; and fourth, asinine, of and by an ass; and in the same youthful, scornful way I regarded the last three as only variants of each other, the results of processes all alien to good judges."

According to Richard Posner, "The secrecy of judicial deliberations is an example of professional mystification. Professionals like it that way because it helps them maintain a privileged status. Judges have convinced many people—including themselves—that they use esoteric materials and techniques to build selflessly an edifice of doctrines unmarred by willfulness, politics, or ignorance" (3).

Posner continues, "The judicial mentality would be of little interest if judges did nothing more than apply clear rules of law created by legislators, administrative agencies, the framers of the constitutions, and other extra judicial sources (including commercial custom). to facts that judges and juries determined without bias or preconceptions" (5).

What are some of the influencing factors of judicial decisions? Although no list can be complete, these should be mentioned: internal constraints, external constraints, judicial philosophies, pragmatism, personality traits, temperament, personal background characteristics, and professional experience. In addition, there are strategic and institutional factors, judicial preconceptions, and the legislature character of the judge and commitment to legalism (Posner 12–15).

Posner says that there are several theories of judicial behavior and gives several references (19; for reviews of the literature, see Baum; Friedman). He lists the following theories: altitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenal, and legalistic.

The altitudinal theory states that the judge's decision is primarily influenced by his or her political preference. But once judges are appointed, by and large most of them want to be a good judge and do not make decisions based on what decision would be wanted by the person who appointed them. As a matter of fact, some judges completely change their philosophy after serving as a judge for a number of years. History tells us that it might be impossible for someone to appoint a judge and depend on his or her thinking for a prolonged period of time. For instance, King Henry II appointed Archbishop Thomas Bechet as the Bishop at Canterbury, but because the king could not persuade Bechet, once appointed, to see the world in the same way with regard to religious issues, the king had him killed in December 1170. Fortunately, no judge in the United States today is afraid of that punishment, but this is an example of how, once appointed, a judge will not necessarily toe the political line.

The strategic theory of judicial behavior states that judges vote as they do because they are concerned about the reaction of other judges, legislators, and the public to their decisions. The sociological theory pertains to a panel of judges; if the members of such are of one political party or are of one sex or the other, these sociological influences can determine the outcome of their decision.

Not all judicial votes are determined by political leanings. Some judges are chosen when they are obviously conservative, and yet their decisions might become very liberal. History reveals that some judges who were very conservative made decisions against segregation and racism. One of the best examples of this would be Oliver Wendell Holmes, who was a known Republican but who made numerous decisions to uphold liberal policies and liberal social legislation.

Schauer writes, "Legalism, considered as a positive theory of judicial behavior, hypothesizes that judicial decisions are determined by the law, conceived of as a body of preexisting rules found stated in canonical legal materials, such as constitutional and statutory texts and previous decisions of the same or a higher court, or derivable from those materials by logical operations" (quoted in Posner 41). The legalist slogan is the "rule of law." As in Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law 227–31 (2006).; "How an Instrumental View of Law Corrodes the Rule of Law" (56 DePaul Law Review 469 [2007]). quoted by Posner 41. So when people say that a judge's decision was within the rule of law, they most frequently mean that the determinants were things that it was lawful for the judge to take into account in making a decision.

When a judge follows a precedent of some court other than the judge's own, he or she is yielding to a superior force and is not making a political judgment. This appeal to legalism is most prevalent in the lower courts, not the higher courts.

Judicial behavior is in large part dependent on individual personality. Judges, like other people, see things differently and do not see the world in a monolithic fashion. Judge Benjamin Cardozo said, "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own" (13). See also Wistrich, Guthrie, and Rachlinski (1251). Undoubtedly, the personal characteristics of judges do influence decisions, and these include race, sex, professional experiences, and political and nonpolitical factors.

Even though judges have a great deal of freedom and choice with regard to their decisions, most are concerned about their reputation among their peers. There are also some external constraints. For example, the judge has to be concerned about his or her reputation among those who elected or appointed him. If private judges or arbitrators favor one side or the other and develop a reputation for such, future clients who are involved in disputes will be reluctant to hire them. On the other hand, career judiciaries are present in most countries whose legal system is not based on the English jurisprudence system. These systems are staffed by lawyers who make a career out of being a judge, and these judiciaries are one of the nation's professional career tracks. Judicial performance can be monitored to some extent by checking the backlog, the reversal rate, judicial demeanor, and the complaints and compliments of litigants. A judge who is elected to a specific term and who must stand for reelection is subject to a performance review. Such a judge has to be sensitive to public opinion. In states that have capital punishment, the most egregious murderers are candidates for such punishment because an elected judge is more likely to decide against the defendant (Kritzer 423, 461–64). In many areas, the judge has to constantly raise money for his or her reelection and frequently that resource comes from lawyers. If as many lawyers pursuing medical malpractice cases as lawyers who defend medical malpractice cases contribute to the fundraising of a judge, then the elected judge is able to make decisions based on the evidence. But if one side dominates the financial subsidy for a judge, the judge may very well be influenced by this resource.

(Continues...)

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