Stephen A. Higginson, Constitutional Advocacy Explains Constitutional Outcomes

60 Fla. L. Rev. 857 (2008) | | | |

INTRODUCTION :: In oral argument in Baker v. Carr, Attorney Z.T. Osborn, Jr., on behalf of Tennessee voters arguing that the U.S. Supreme Court should hold legislative apportionment a justiciable issue, exclaimed that “the motto of the Supreme Court of Tennessee is Fiat justicia ruat caelum; Let justice be done if the skies should fall.” With that exhortation, Osborn remarked to the Court, “We have no other place to go. We are at the capital of the world.”

This Article seeks to show that scholars, especially constitutional scholars, must pay more attention to the ways advocates frame their controversies at the “capital of the world.” If the Anti-federalists’ prophecy was that an overly complex constitution would accrete power around its ambiguities, then the perpetual refinement of the Constitution by lawyers in controversy-from article to section to sentence to clause to phrase to word- has given the best protection against inflexibility. This thesis is timely because lawyering is more accessible with the Court’s recent decision to post oral arguments “on the same day an argument is heard by the Court.” The topic is pragmatic because scholarly attention to judges’ courtroom conversations with lawyers may help close the divide between the academy and the legal profession.


Moreover, understanding persuasive advocacy is vital to understanding constitutional law. Walking into the Court on December 6, 1965, and listening to the controversy preceding the Court’s decision in Brown v. Louisiana foretells the Court’s eventual ruling by displaying the collapse of this “separate but equal” argument by Louisiana attorney Richard Kilbourne:

JUSTICE FORTAS: The question occurs to me, is the State of Louisiana telling us that in this Parish library facilities are not segregated, that is to say, that a Negro can get service from any library facility, any public library facility in this Parish?

RICHARD KILBOURNE: Yes sir, I would say that they can.

QUESTION: Is that the representation of the State of Louisiana?

ANSWER: That’s the representation of the State of Louisiana which I make and which I certainly stand by-

QUESTION: Now these cards, these library cards, as I remember the record, there is testimony to the effect that a library card issued to a Negro is stamped Negro. Any dispute about that?

ANSWER: No sir. There is no dispute about that.

QUESTION: Does that practice continue?

ANSWER: I really, I just couldn’t answer that-

QUESTION: Well, there is a blue bookmobile for the Negroes and a red one for the whites, isn’t there? How can you say it’s not segregated?

ANSWER: Well, I say it’s not segregated because if a white person wants to use that blue bookmobile, they would let him use it; if a colored person want to use a red bookmobile-I may have my colors wrong, but I believe that’s right-they would certainly wouldn’t be able to refuse him service.

QUESTION: The record says quite the contrary, doesn’t it? Is there any testimony in the record to support what you have just said?

ANSWER: I believe it is. Now you see, this, something like this has never come up, actually, before. I mean-

QUESTION: Well, it sure is up now.

ANSWER: Sir?

QUESTION: I said, it’s up now, and I want to ask you about the last statement you made. Is there anything in the record to the effect that a Negro who wants to get a book from the red bookmobile, can do so? There is testimony from some woman who used to work for the library-I’ve forgotten her name-to the precise opposite . . . . [S]he said, “The only person who used the blue bookmobile is Negroes and the blue bookmobile services three parishes for all Negroes, and occasionally if a white person would come to the blue bookmobile, I’d give him a schedule telling him when the red bookmobile would come.”

ANSWER: I believe that would be the only testimony that’s in the record.

QUESTION: That looks like a segregated library system.

ANSWER: Well, I often get confused when you say segregated system or integrated system because in Clinton, Louisiana, well, I’ve always felt like we had more integration than probably any place in the United States, I mean, just from the way people live. But I don’t-segregation and integration seems to mean different things in different parts of the country.

QUESTION: Prior to this incident, had Negroes ever gone into that library?

ANSWER: You mean to get a book? They often went in there-

QUESTION: Gone in there for a service to the library as a white person would?

ANSWER: I don’t believe they had. No, sir.

QUESTION: Would you explain to us why that would be if you didn’t have segregation?

ANSWER: No, I, I really can’t, I can’t explain why that could be, except, as I say, no doubt it was a custom that they did not go in that library at that time.

Trying to reconcile blue bookmobiles for blacks with the demands of the Constitution, Attorney Kilbourne first contends that segregation and integration are indistinct terms; then his constitutional grip slips down from avoidance to evasion; then down further to slanted truth; finally, he retreats into semantics, asserting that blacks have a “custom” of not using libraries. 6 Only with this vivid collapse in mind are we unsurprised that the Court, in an opinion by Justice Fortas, not only held Petitioner Brown’s library breach-of-peace conviction invalid, but also elaborated as follows:

We are here dealing with an aspect of a basic constitutional right-the right under the First and Fourteenth Amendments guaranteeing freedom of speech and of assembly, and freedom to petition the Government for a redress of grievances. . . .

It is an unhappy circumstance that the locus of these events was a public library-a place dedicated to quiet, to knowledge, and to beauty. It is a sad commentary that this hallowed place in the Parish of East Feliciana bore the ugly stamp of racism. It is sad, too, that it was a public library which, reasonably enough in the circumstances, was the stage for a confrontation between those discriminated against and the representatives of the offending parishes.

First, this Article uses advocacy moments like this-rarely incorporated into casebooks on constitutional law-to demonstrate how advocacy foretells much of constitutional decision-making. Second, by referring to several dozen leading constitutional decisions and focusing on how lawyers in dialogue with Justices shaped decisions, this Article explains how three features of advocacy often determine a case’s outcome. Finally, this Article shows that scholarship must realign constitutional doctrine with persuasive or unpersuasive lawyering, both to tie in the lawyer’s professional role and, more importantly, to better recognize the Court’s opinions as a group-assembled product begun when the Justices speak with attorneys.

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