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REBELS AT THE SUPREME COURT BAR

By Stephen M. Shapiro*

The bar of the Supreme Court is not an exclusive club. It is, in fact, the very opposite: any lawyer of good moral character who has practiced for 3 years past at the bar of the highest court of a state may apply for admission. The Supreme Court bar today includes over 180,000 members. The Court hears arguments from men and women of all races and ethnic groups and from every section of the country. But it was not always so.

Scarcely more than a century ago, the Supreme Court's bar included no blacks, no women, and no lawyers from the former Confederate states. The Court maintained a restricted bar until it was challenged by three radiant enemies of the status quo: John S. Rock, Belva M. Lockwood, and Augustus H. Garland. The story of these rebels is a curious and impressive one.

The Court's First Black Lawyer

John S. Rock rose before the Supreme Court only eight years after it denounced the members of his race "as beings of an inferior order; and altogether unfit to associate with the white race" in the infamous Dred Scott decision. But in that interval the nation had passed through the gigantic struggle of civil war. And the Court had a new Chief Justice: Salmon P. Chase, a champion of the anti-slavery movement appointed by Abraham Lincoln. Rock's sponsor, Senator Charles Sumner, confided to the new Chief Justice that "I know not how far the Dred Scott decision may stand in the way." But Sumner made his motion; the Chief Justice nodded his assent; and John Rock secured admission under the watchful eyes of several Justices who had joined the majority in Dred Scott. At that same moment, the constitutional amendment to abolish slavery moved from Congress to the states, headlong on its course toward ratification. The admission of John Rock was a portent of the new social order.

For Justices of the old regime, such as Justice David Davis, Sumner's motion was a flabbergasting stunt, "all for effect" and "athwart everybody's prejudices." The faces of the older members of the bar, present in the courtroom on that day, were knotted in rage. But Rock's admission kindled the popular imagination. The New York Tribune reported the event in glowing detail:

"This inky hued African stood, in the monarchical power of recognized American Manhood and American Citizenship, within the Bar of the Court which had solemnly pronounced that black men had no rights which white men were bound to respect; stood there a recognized member of it, professionally the brother of the distinguished counselors on its long rolls, in rights their equal, in the standing which rank gives their peer. By Jupiter, the sight was grand."

It grandly appeared, in the words of the abolitionist song, "that Kingdom's coming and the year of Jubilee."

Who was the black lawyer who dared to enter the lion's den so soon after Dred Scott? He was a man of many careers, but of a single-minded determination to overcome the prejudices of his day. Born in Salem, New Jersey in 1825, John Rock studied in the public schools, taught in a one-room school house, received an M.D. degree from the American Medical College in Philadelphia, practiced both dentistry and medicine, and received awards for his skill in the medical arts. At twenty-seven years of age, Rock had mastered several professions; he was, in the view of his colleagues, one of the ablest and best educated men of his time.

In the midst of these professional exertions, Rock shifted attention from medicine and dentistry to the study of law. In 1861, he was examined for the bar by a judge of the Superior Criminal Court of Massachusetts. Rock passed with ease and was admitted to practice in all courts of the state. Although Rock aspired to membership in the Supreme Court bar as well as the bar of his state, Chief Justice Taney (the incarnate spirit of Dred Scott) still haunted the Court like a ghost: "I suppose," wrote Rock to a friend, "the old man lives out of spite." Rock waited four more years for a change on the Court.

While he waited Rock threw himself into the anti-slavery crusade and the violent currents of the Civil War. When Congress authorized the mustering of colored troops, Rock became one of the main recruiters for the 54th and 55th Massachusetts Infantry Regiments. "I am certain," Rock declared, "that colored men are patriotic. No man ever heard of a colored traitor." He also lobbied successfully for equal pay for colored troops, and denounced an early proposal of Abraham Lincoln for colonization of Haiti with liberated slaves.

Rock's speeches during this period display a power of irony and gift of memorable phrase, as, for example, in his speech before the Massachusetts Anti-Slavery Society:

"Why is it that the people from all other countries are invited to come here, and we are asked to go away? Does any one pretend to deny that this is our country? or that much of its wealth and prosperity is the result of the labor of our hands? or that our blood and bones have crimsoned and whitened every battle-field from Maine to Louisiana?"

The reason for colonization proposals was only too evidently a jealousy of the power of an emancipated people:

"The free people of color have succeeded in spite of everything; and we are today a living refutation of that shameless assertion that we cannot take care of ourselves. Abject as our condition has been, our whole lives prove us to be superior to the influences that have been brought to bear upon us to crush us."

Rock's anti-slavery orations were salted with wit as well as spirit, as in his retort to white supremacists:

"If old Mother Nature had held out as well as she commenced, we should probably have had fewer varieties in the races. When I contrast the fine, tough, muscular system, the beautiful rich color, the full broad features, and the gracefully frizzled hair of the Negro, with the delicate physical organization, wan color, sharp features and lank hair of the Caucasian, I am inclined to believe that when the white man was created, nature was pretty well exhausted — but determined to keep up appearances, she pinched up his features and did the best she could under the circumstances."

Supporters of John Rock, such as Senator Sumner, who admired his mental power and polemical spunk, foresaw great days before him as a Supreme Court advocate. He was, after all, only 40 years of age when admitted to the bar.

Unhappily, the fates had spun a different destiny for John Rock. On his trip to Washington for admission to the Supreme Court bar, he caught a severe cold. A winter cold, one hundred years ago, was a serious matter, particularly for a man as overworked as Rock. His health deteriorated rapidly; one year later, Rock lay dead in his Boston home. The simple inscription engraved on his tombstone reads as follows:

"John S. Rock, Oct. 13, 1825, Died Dec. 3rd, 1866. The first colored lawyer admitted to the Bar of the United States Supreme Court at Washington; on motion made by Hon. Charles Sumner, Feb. 1st, 1865."

A more poetic valediction for the Supreme Court's first black lawyer may be found in Harper's Weekly :

"It is related of Aesop, who had been born a slave, that the Athenians erected a statue to his memory. The Supreme Court of the United States has taken one of a race crushed down to the earth with its own most solemn sanction, and has placed him not indeed in marble, in aeterni basi, but upon the enduring pedestal of an honorable citizenship."

A Woman Joins The Bar

When Belva A. Lockwood applied for admission to the Supreme Court bar in 1876, she met with a greeting from Chief Justice Morrison R. Waite that was far from cordial:

"By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are permitted to practice before it as attorneys and counselors. This is in accordance with immemorial usage in England, and the law and practice in all the States until within a recent period."

"My reverence for the ermine vanished into thin air," Mrs. Lockwood confessed. She was, in fact, sorely tempted to reply to the Brethren with a more accurate exposition of the question of immemorial usage:

"No English precedent? How about Queens Eleanor and Elizabeth, who sat in the aula regia and dispensed the duties of chief chancellor of the English realm in person? How about Anne, Countess of Pembroke, who was hereditary sheriff of Westmoreland, and who at the assizes at Appleby sat with the judges on the bench?"

Instead of retorting with erudition, however, Belva Lockwood turned to Congress for relief. She drafted the necessary legislation; she defended it personally in committee hearings; and she buttonholed doubtful congressmen to secure its passage. "Nothing was too daring for me to attempt," Lockwood later reminisced. "I addressed Senators as though they were old familiar friends, and with an earnestness that carried with it conviction." By dint of these crusading labors, Congress passed a law in 1879 which provides that "any woman who shall have been a member of the bar of the highest court of any State or Territory or of the Supreme Court of the District of Columbia for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States."

Following this venture, the public demanded to know more about the woman who successfully appealed her case from the Supreme Court to Congress. And her story was eagerly told by the press: Belva Lockwood was the daughter of a farmer, who became a teacher when her father opposed pursuit of higher education. Discontented with the straitened limits of her rural life — and dubious of Blackstone's dictum that wives lack an existence apart from their husbands — Lockwood moved to Washington D.C. She there applied for admission to the law school of Columbian College (later George Washington University) but was rejected on the ground that it "would be likely to distract the attention of the young men." After fruitless applications to Georgetown and Howard Universities, she finally gained admission to the newly formed National University Law School. Upon graduation, however, the school declined to issue her diploma; this ignited a protest to "His Excellency U.S. Grant, President U.S.A.," the ex officio president of the law school. "If you are its President," Mrs. Lockwood fulminated, "I desire to say to you that I have passed through the curriculum of study in this school and am entitled to, and demand, my diploma." One week later she received it, duly signed by the chastened former commander of the Army of the Potomac, and gained her admission to the bar.

The agitation surrounding Belva Lockwood's rise to the bar was hardly a depressing influence on her career. The notoriety of her efforts generated wide publicity and an outpouring of legal business. "I was not compelled," she observed, "like my young brothers of the bar, who did not wish to graduate with a woman, to sit in my office and wait for cases." Her practice generated up to $300 per month in fees — an immense income one hundred years ago — and permitted her to occupy a twenty-room Washington home. Among Lockwood's many cases were several in the Supreme Court, including United States v. Cherokee Nation, a proceeding that ultimately yielded a multi-million dollar award to her Cherokee clients.

Belva Lockwood's career exhibited a nearly equal blend of eccentricity and pragmatism. Instead of retaining a carriage or horse for transportation, she pedaled to court on a huge tricycle, the first such vehicle to be seen in the nation's capital. This apparition provoked astonishment close to scandal. In 1884, the National Equal Rights Party of the Pacific Coast nominated Belva Lockwood as its presidential candidate, and she campaigned vigorously, ultimately receiving more than 4,000 votes — all, of course, cast by men, who alone were entitled to vote. Bands of young men, donning Mother Hubbards and sunbonnets, took to the streets with brooms, symbolizing "a clean sweep" for Belva Lockwood. Many of her supporters were indignant, but Lockwood correctly predicted that their grotesque pranks would generate political cartoons helpful to the cause. She ran for President once more in 1888, again on a platform of equal rights.

After her presidential campaigns, Belva Lockwood remained active for some 30 years. She strenuously lobbied in favor of federal legislation mandating equal pay for equal work performed by women, reform of prison conditions, and passage of the Sherman Act. At the age of eighty-four, with Europe on the verge of war, the State Department sent her abroad to carry a peace message to the women of the world. She lectured with such brio that her agent urged her to leave the law "to those who can do nothing else."

Although Belva Lockwood did not live long enough to see ratification of the 19th Amendment guaranteeing women's suffrage, she foresaw the inevitable result: so many states had admitted women to the polls that the rest were certain to follow. By the time of her death in 1917, women had been admitted to practice law in all but four states.

At Belva Lockwood's funeral, the Women's Christian Temperance Union composed a guard of honor. Her body was borne to Congressional Cemetery, there to sleep, as her eulogist said, the sleep of the just. The occasion reminded mourners of her vintage epigram: "I have not raised the dead, but I have awakened the living; and if I have not been able to walk on water, the progressive spirit of this age may soon accomplish this feat. The effect of attempting things beyond us, even though we fail, is to enlarge and liberalize the mind."

The Fall Of The Iron-Clad Oath

When Augustus H. Garland returned to the Supreme Court to check on the status of several cases he had lodged before the outbreak of the Civil War, he found his way blocked not by the forces of racial prejudice or old tradition, but by a newly minted rule of the Court which required all attorneys to take an oath that they had never borne arms against the United States or exercised authority hostile to the government. This "iron-clad oath," adopted in conformity to an earlier act of Congress introduced by Senator Sumner, plainly foreclosed Garland: he had, after all, served in the Arkansas Secession Convention as well as the Confederate Senate.

Aided by two renowned advocates of the day, Matthew Carpenter and Reverdy Johnson, Garland filed an original proceeding in the Supreme Court challenging the constitutionality of the iron-clad oath. By a vote of 5 to 4 — with all Justices appointed by President Lincoln in dissent — the Supreme Court struck down the oath, finding the disability imposed on Garland to be a bill of attainder and ex post facto law.

The decision, known to every law student as Ex parte Garland, produced a torrent of criticism from the radical reconstructionist press. The Chicago Tribune thundered that "it is the deliberate purpose of the Supreme Court to usurp the legislative powers of the Government, to defeat the will of the loyal men of this nation." The Washington Chronicle found the decision a "fortification behind which impertinent rebels may renew or continue their war upon the Government." For Harper's Weekly, the decision revealed the "disposition of the Court to withstand the national will and reverse the results of the war." By contrast, the National Intelligencer praised the Court for its refusal to be "intimidated by the threats of brawling politicians or the coarse vituperation of unprincipled editors." Nearly every major newspaper joined the cacophonous fray.

Augustus Garland glided above the coarse vituperation. He was soon elected to the U.S. Senate from his home state of Arkansas, where he served for nearly a decade, until appointed Attorney General by President Cleveland. During the long period of his government service, he appeared frequently before the Supreme Court, both on behalf of the government and private litigants. He presented argument in more than 130 cases.

Of more lasting significance than these arguments in the Supreme Court, however, is Garland's small volume of history, Experience in the Supreme Court of the United States, published at the end of his career in 1898. Clio is the most solemn of the muses and (like her sister Melpomene) has a regrettable tendency to pomposity. But in Garland's service, she is arch and sportive and tells of the little features of a great institution.

Garland bore witness to a peculiar innovation in the proceedings of the Court — the asking of questions during oral argument, a disruptive practice unknown under Chief Justices Marshall and Taney. "Very often I have seen lawyers high up in their profession, but not used to the ways and manners of this court in this respect, frightened, so to speak, out of their wits into forgetfulness of the entire case, when suddenly called up by the court to know this or that before they had time to tell anything of it, and when they were getting ready to tell it." Lawyers in Garland's day not only met with disconcerting questions, but also endured a suffocating restriction on their oratory — a time limit of merely two hours per side in place of the prior tradition of unlimited argument. "While I have not heard of any lawyers dying under this limitation upon their speaking, yet I have known some to grow melancholy and sicken under it."

By and large, however, Garland approved the new procedures. Indeed, he urged the Justices and lawyers to "get closer together and not stand apart so far, as lawyers are part of the court naturally and justly. Ex parte Garland said that directly, and being so they should come close to the court and the court to them, and allow no room for a suspicion that one was trying to trick or outwit the other." A particularly galling impediment to easy communication, Garland observed, was the verbosity of learned counsel: "we see not briefs but long essays, even books put in cases, drawing immensely upon the time of the court to wade through them, which if done would not unfrequently leave the judges with vertigo or strabismus."

Not only vertigo and strabismus, but also enervation and ennui afflicted the members of the Court in Garland's day, particularly at lunch hour. The Justices attempted to labor through the lunch hour, with unhappy consequences:

"in the course of an hour the judges show signs of weariness and fatigue, and commence one by one to retire to lunch and sometimes barely a quorum is left; even Mr. Reed, the speaker, with his well known acuteness and adroitness to find a quorum would be puzzled at times to establish the existence of one."

The lunch they managed to snatch this way was far from satisfactory. "Behind their seats, where persons are passing to and fro, a sort of ad interim or Pro tempore restaurant is in progress, and counsel is arguing in front and hears the rattle of dishes, knives and forks, and the judges are eating in a state of unrest." Beyond this (Garland was frank to say) between the hours of one and two the eager advocate frequently would find the Justices unavoidably

"Napping, napping, only this, And nothing more."

And so the amiable memoir ends, with affectionate raillery aimed at a Court that once sought to exclude its historian with an iron-clad oath. A year after its publication, Augustus Garland passed away in Washington, D.C., full of years and, of course, la douceur de vivre known only to inhabitants of the South. He was buried with the honor of a statesman in Mt. Holly Cemetery in Little Rock.

The Eyes, Ears, and Hands of the Court

For John Rock, Belva Lockwood, and Augustus Garland, admission to the bar of the Supreme Court was an event of extraordinary importance. More than an avenue of professional advancement, admission to the bar embodied a social creed. Rock's admission to the bar stands commemorated on his tombstone. Lockwood single-handedly crusaded in Congress to gain admission. And, as sectional passions cooled, and the nation learned to recite "Love and tears for the Blue/Tears and love for the Gray," Augustus Garland emerged as a hero who had riven the iron-clad oath with his historic case: "it stands as Ex parte Garland, 4th Wall. 333, vindicating the right of lawyers against legislative encroachments, and often I am called Garland Ex parte, or Ex parte Garland, or In re Garland, as the case may be."

In the end, despite the chilly reception that it gave to each of these iconoclasts, the Supreme Court itself was the beneficiary of their efforts. What, after all, is the work of the Court and the measure of its power? Was it constituted to burrow among the wormholes of history to search out the intent of departed patriarchs? Was it set up to inhale the prevailing zeitgeist and breathe a new life into the corpus of law? These propositions may be safely confided to the professors and politicians, for, as usual, the sprightly Augustus Garland has an answer more satisfactory still.

"At last this Court is the anchor," he said, "and the safety valve of our government." "This feature of power must be lodged somewhere in the somewhat complicated and tangled jurisdictions given under our Constitution, and there is no place better than this to put it." The Supreme Court is, in fact, the great pressure valve of our society, established to discharge the destructive tensions embedded in cases and controversies of the largest import, coming from each part of the nation and every social group.

The Court is a competent voice in settling these disputes, but it lacks eyes, ears, and hands. It requires vigilant men and women to bring the most important cases to it, and to communicate the needs of the people. And it calls for dedicated hands to carry its mandate to each segment of society. A bar of 180,000 lawyers is, perhaps, the truest index of the power of the nation's highest court.

Copyright © 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.



 
 
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