Habeas Corpus: Rethinking the Great Writ of Liberty

11. From Frank to Moore

From Frank to Moore Frank’s tragic aftermath aroused strong feelings throughout the country. Louis D. Brandeis, then in private practice, had already expressed concern about the case.1 Writing to Senator George Sutherland after its denouement, he referred to the “occurrences in the Frank case” as having “subjected the reputation of the Courts to severe strain” and urged Sutherland to prevent a repetition .2 The Executive Committee of the American Bar Association, at a meeting at which William Howard Taft was present, adopted a resolution condemning Frank’s “willful and deliberate murder . . . in a spirit of savage and remorseless cruelty, unworthy of our age and time,” as “an act of wanton savagery . . . well calculated to promote lawlessness and anarchy.”3 Within Georgia, however, popular opinion supported the lynch mob, not the Governor. The prevailing view at the time was “that mob violence protected society from both lawbreakers and a criminal justice system that failed to carry out its mandate.” But this attitude broke up with surprising rapidity over the following decade under the influence of a coalition of antilynching activists comprising “white businessmen dedicated to economic progress, white reformers animated by a vision of Christian social justice, and black activists committed to color-blind justice.”4 Among this group was the Governor, Hugh M. Dorsey.5 The same years saw a number of changes in the composition of the Supreme Court—including the appointments of Brandeis, Sutherland, and Taft—with the results indicated in Table 1. Thus, four of the eight Justices who would be deciding Moore had ascended the bench since Frank. But one of these was a replacement for one of the dissenters in that case, and the most salient factor influencing the appointments of Taft, Sutherland, and Butler had been their perceived skepticism regarding the validity of economic regulations under the Due Process Clause, rather than their views on individual rights.6 Perhaps, as Brandeis suggested later, the importance of the change was not so much the identity of the appointees as their relative newness to the 11 65 bench; specifically, it may be that the raw realities of Southern justice would come as a greater shock to the newer Justices than to those who had been seeing similar scenarios regularly presented for (and denied) review. But then, one could with equal plausibility adopt the opposite hypothesis—that Justices who had more recently lived outside the ivory tower of the Court would be more familiar with the realities of the world, and more cynical about it. Indeed, as it turned out, one of the only two recorded dissenters in Moore was George Sutherland, who had recently joined the Court from a litigation practice.8 And in our own day, it would seem that the increased misgivings over time of Justices O’Connor, Stevens, and Blackmun regarding the death penalty were the result of greater and greater exposure to specific instances of injustice coming before them judicially.9 Of more immediate relevance to Moore, perhaps it is of significance that the problem of lynching continued to gnaw at the national conscience. Although lynchings had been declining steadily between 1900 and 1917: World War I disrupted the status quo. Black men returned from military service were far less willing than they had once been to accept quietly the indignities of Jim Crow. Whites met their new assertiveness with increased violence . The number of black lynchings, down to only 36 in 1917, leaped to 76 in 1919.10 Moreover, around the country “city after city exploded in the worst racial conflicts that the country would ever see”11 —race riots in which the death toll (overwhelmingly among blacks) ran into the hundreds.12 66 | From Frank to Moore Table 1 The Frank Court The Moore Court (April 19, 1915) (February 19, 1923) Edward D. White, C.J. William Howard Taft, C.J. (Seated October 3, 1921) Joseph McKenna Joseph McKenna Oliver Wendell Holmes Oliver Wendell Holmes Willis Van Devanter Willis Van Devanter James C. McReynolds James C. McReynolds Joseph R. Lamar Louis D. Brandeis (Seated June 5, 1916) Charles E. Hughes George Sutherland (Seated October 2, 1922) William R. Day Pierce Butler (Seated January 2, 1923) Mahlon Pitney [Vacant]7 In this atmosphere, the NAACP launched a high-profile (although ultimately unsuccessful) campaign in Washington for federal antilynching legislation that ran almost continuously from 1919 through 1923, increasing public awareness of profound societal problems yet unremedied.13...