Race, Rape, and Injustice: Documenting and Challenging Death Penalty Cases in the Civil Rights Era

7. Momentum Builds, Then Stalls

Chapter 7 Momentum Builds, Then Stalls Justice William O. Douglas sat quietly, watching this public display of bantering and cajoling. A fury enveloped him, and he knew in such times that it was best not to speak. Otherwise, his anger would surface much like lava struggling through the earth’s crust, finally unleashing its uncontrolled fury every which way. He was a frustrated man. Twice he had been considered by President Franklin Roosevelt as his vice-presidential running mate, the last time in 1944. Only the intervention of certain leaders of the Democratic National Committee, Douglas believed, allowed Truman to emerge. Otherwise Douglas would have been president.1 There he sat, a quarter of a century later, still on the Supreme Court, where, some thought, he still suffered from frustrated ambition. His opinions had grown short and pithy over time. He had been accused of sloppy work.2 Perhaps he didn’t care any more, as he was nearing the end of his life and had already left his mark on constitutional law. But this case, this Maxwell matter—now here was something he was going to take a closer look at. Because he didn’t like how it smelled. All those numbers, those ridiculous numbers of blacks who had been electrocuted . He hated such abuses. And he could identify with Maxwell, a black man disadvantaged at birth and now cast aside, because at heart Douglas always thought of himself as an outsider, someone not welcomed by those at the pinnacle of power. He had grown up that way. He worked his way through Whitman College as a janitor and waiter, and in the summer he picked cherries. “I worked among the very, very poor,” he once said, “the migrant laborers, the Chicanos and the I.W.W.’s who 98 Momentum Builds, Then Stalls I saw being shot at by the police. I saw cruelty and hardness, and my impulse was to be a force in other developments in the law.”3 Hehadbecomethelongest-servingSupremeCourtjustice,appointed in 1939 by Roosevelt. He had engaged in a protracted feud with Justice Felix Frankfurter, who had fretted over a possible Douglas presidency4 and did not respect his work on the court. To Frankfurter, Douglas was not a team player. He was “impetuous,” “unstatesmanlike,” resultsoriented , and unwilling to abide by legal intricacies. Douglas thought little of Frankfurter’s detailed, elaborate opinions.5 His sympathies for the disadvantaged were legendary. No other justice was as resolute in dispensing with judicial restraint to advance the cause of equal justice, irrespective of what path of life a person came from.6 Because the Fourteenth Amendment’s Equal Protection Clause applied only to states, not private persons, the other justices had struggled over how to rein in the discriminatory practices of private southern restaurateurs. Not Douglas. He wrote: “[O]ne who operates an enterprise under a license from the government . . . enjoys a privilege that derives from the people. . . . The business is not a matter of mere private concern. Those who license enterprises for public use should not have . . . the power to license it for the use of only one race.”7 He abhorred discrimination in any form. In 1951 he renounced a state’s imposition of a poll tax on the right to vote. The exercise of democracy , he reasoned, should not be dependent on how much was in a person’s wallet. Years later he would write again, “Wealth, like race, creed or color, is not germane to one’s ability to participate in the electoral process.”8 His total rejection of racial discrimination propelled him to renounce it even by private clubs.9 He had a strong reaction to the data produced by the law students and related evidence of discriminatory death sentencing by southern white juries. Douglas studied the Fund’s brief, the evidence contained in the schedules, and Wolfgang’s conclusions. No more, he vowed. Patiently he waited for the lawyers to finish their Maxwell arguments. There was no question what he was going to do. He would give his colleagues a piece of his mind at conference. Discussion Begins With the Maxwell hearing finally concluded, the justices retired to discuss the case. On March 6, 1969,10 they met in the conference room adjacent to the courtroom with no one else present, as was the custom. While Momentum Builds, Then Stalls 99 there exists no verbatim account of what was said...