Although I normally comment on intellectual property issues, the movie Selma has recently jolted my musings in the direction of Civil Rights Law. You see, after finishing law school, I had the great honor and privilege of clerking for the Honorable Frank M. Johnson, Jr., the judge played by Martin Sheen in the movie who lifted the injunction and authorized the great Selma march. A fellow judge in Johnson’s Montgomery Courthouse summoned him to his chambers to get a better view the event and beamed at him, “Frank, this is your parade… you might has well have a good seat to watch!”
The Selma episode was neither the first, nor the last, highlight of a spectacular career which in his first months on the bench saw he him cast the deciding vote in Browder v. Gayle, the Montgomery Bus Boycott case that gave Rosa Parks her seat at the front of the bus.
In its full page New York Times obituary in July of 1999 (King Hussein of Jordan only got a half-page on the same day), Robert McFadden wrote that “Judge Johnson loomed as a towering figure — an uncompromising defender of civil liberties who came to be known as the Federal judiciary’s most influential, innovative and controversial trial jurist.”
He desegregated the Alabama highway patrol and the Alabama teachers system. He ordered the desegregation of parks, swimming pools and many other public accommodations He also desegregated Alabama juries in terms of both race and gender (women were not allowed to serve as jurors until his ruling in 1966). He sent Klan members to jail under federal civil rights law for the murder of Viola Liuzzo, a mother of five who was gunned down while returning from the Selma march. A state jury had earlier set the killers free.
No wonder he was featured on the cover of Time magazine in 1967 with an article entitled, “The real governor of Alabama.” No wonder he once received a letter addressed simply to “that judge in Alabama.”
And no wonder he was protected 24 hours a day by federal marshals for over a decade, which wasn’t enough to prevent the firebombing of his mother’s house.
But it was in the area of remedies where he was most innovative and most controversial. One of the cases he was most proud of addressed the medieval-like conditions in Alabama’s mental hospitals, described by a Montgomery, Alabama, newspaper as no better than Nazi concentration camps. In Wyatt v. Stickney, the first case to find that patients in mental hospitals had any constitutional rights at all, Judge Johnson determined that as a minimum standard patients were entitled to a humane environment (e.g. adequate food and a bed) and qualified staff in sufficient numbers (e.g. more than the 3 doctors and 1 psychologist for over 5200 inmates).
At first, he simply found a constitutional violation and asked Alabama to remedy it. Nothing was done. When he threatened his contempt power, he learned that many Alabama officials were appalled and desperate to help, but they lacked funds due to a cowardly legislature’s refusals to raise taxes. Eventually, the Judge had no choice but to appoint a board of Alabama professionals to run the hospitals. They spent money and forced the hand of the legislature who could blame that Goddamn Judge in Montgomery for hiking their taxes. Democracy is strange sometimes, isn’t it? His reluctant takeover of the mental health system (he did the same for the prison system on similar grounds), forced reform that right-thinking people in Alabama could not achieve on their own. He was not an activist—he always gave the state the chance to comply with the clear dictates of the Constitution before he reluctantly ran the state’s business from his courtroom.
The civil rights movement, of course, owes its power to the foot marchers on the front line, but without a judiciary willing to enforce rights, non-violent change is hard to bring about. Just consider the would-be Ghandi’s and King’s of Stalin’s Russia or Mao’s China who were quietly liquidated before we ever heard their voices.