Greenberg Remarks on The Crisis in American Justice Conference with Chief Justice Warren

    Remarks by JACK GREENBERG, Director-Counsel 
NAACP Legal Defense and Educational Fund, Inc. 
THE CRISIS IN AMERICAN JUSTICE 

Americana Hotel, New York City 
May 15, 1970 

We are here today to do honor to the Chief Justice who 

does us great honor by his presence. For me, personally, 

it is a novel experience to be standing on the same side 

of the lectern as the Chief, instead of facing him across 

it and commencing my address with "May it please the Court." 

I cannot help thinking about what it was like during 

that approximately decade and a half that the lawyers of 

the Legal Defense Fund regularly appeared before the 

supreme bench to plead some of the cases in which the court 

changed the face of these United States. The opinions of 

the Court and its jurisprudence and the politics and social 

movements relating to those opinions have consumed thousands 

of pages of newspaper reporting and, even now, historical 

interpretations. But so much of what came from the court 



can in microcosm be seen in the conduct of the hearings 

of the cases by Chief Justice Warren. 

During the questioning of counsel in which the Justices 

seek to elicit the facts and understand the arguments of 

both sides, he would frequently conclude a colloquy by 

looking a lawyer in the eye and asking, "Yes I understand 

your position, but is that fair?" 

One may argue, and there is no shortage of legal 

philosophers who have argued, that this inquiry is not 

sufficiently legalistic. But in the Supreme Court, which 

makes the supreme law of the land, one issue of overwhelming 

concern is whether legal rules comport with the sense of 

fairness of the times. This is no novel perception, having 

been pointed out by Justice Cardozo long ago. Many a lawyer 

wilted under the question "Is that fair." It took a particular 

bravado and considerable circumlocution for counsel to assert 

the fairness of a position in which he did not really believe. 



Recently I have been looking at the transcripts of some 

arguments before the Court and would like to share with you 

some sense of how the Chief extracted the moral essense of 

the legal questions before the Court. In the original 

School Segregation Cases - on the issue of how to implement 

the court order - he interrogated counsel for the State of 

South Carolina as follows: 

THE CHIEF JUSTICE: But you are not willing 
to say here that there would be an honest attempt 
to conform to this decree, if we did leave it to 
the district court? 

MR. ROGERS: No, I am not. Let us get the 
word "honest" out of there. 

THE CHIEF JUSTICE: No, leave it in. 

MR. ROGERS: No, because I would have to tell 
you right now we would not conform--we would not 
send our white children to the Negro schools. 

One can imagine how the court was impressed with arguments 

about "good faith" after retorts of that sort. 

And only two years ago, in the 'freedom of choice' cases, 

he referred to the same theme of "honesty." 



MR. CHIEF JUSTICE WARREN: Isn't the experience 
of three years in that county, where there never has 
been a white child go to a Negro school, isn't that 
some indication that it was designed for the purpose 
of having a booby trap for them, that they couldn't 

didn't dare to go over? 

MR. GRAY: . . . [I]£ integrated education is 
what the colored plaintiff wants, I can provide it 
for him this morning, if he is in the room. He 
need only sign that form and check the New Kent 
School, and he will have a fully integrated 

education. 

MR. CHIEF JUSTICE WARREN: When you say to us 
that there are no community attitudes that pervade 
that county, which would militate against the Negro 
child saying that he wanted to go to the white 
school, can you say that to us honestly? 

Politicians may tell tall tales, but there is no doubt 

that the Justices knew what the score was. 

Of course, we all know, and the Chief Justice will be 

the first to say, that decisions of the Warren Court were 

the decisions of a court consisting of nine justices. But 

during his tenure, while the identities of his associates 

changed somewhat from time to time, the direction of that 

court remained the same. And the Chief's views on questions 

of human liberty were a constant which characterized the 

Court's decisions. Our dear friend and frequent collaborator 



at the Legal Defense Fund, Professor Charles Black of Yale, 

has recently given a series of lectures on the Warren Court, 

which better than anything else sums up its achievement. 

I would like to read some excerpts from those lectures: 

There is only one thing I would say confidently, 
now, about the Warren Court. It is the only Court 
so far in American history which has so much as a 
chance of being one day thought as great as the 
Marshall Court, for it is the only Court that has 
made an assertion as large as the Marshall Court 
made. Marshall took a set of disconnected texts 
and read them together in the light of an overall 
vision of nationhood. The Warren Court .. . has 
insisted that these guarantees, readable in them- 
selves, in their radiations, and in their interstices, 
are to be looked on as forming a total scheme of 
citizenship. The Warren Court . . . perceived in 
these guarantees a pervading systemic equity, and 
equity of respect for the citizen, and thus set in 
full motion a way of looking at them which can 
make of their totality a plan adequate in shape 
and size, to confront Marshall's plan of nationhood. 

* * * 

I think it plain that we will not be or 
remain a nation unless we plant ourselves on the 
moral ground to which the Warren Court has given 
its outlines . . . We need this moral basis of 
citizenship -- common, growing citizenship -- as 
we need cleaner water and air. 

The decision in Brown v. Board of Education, which is 

in my view the Court's largest contribution to that vision 

of citizenship, was, of course, handed down in response to 



cases brought by the Legal Defense Fund. We have since 

then devoted ourselves to implementing its vision in many 

ways, acting to extend it to housing, employment and public 

accommodations to all citizens and to see that all are treated 

alike without regard to race or poverty. 

Now the Legal Defense Fund is undertaking a new and much 

needed effort, and that is to extend, particularly in the 

South, the number of Negro lawyers who are trained in civil 

rights, so that the theoretical victories can be made into 

pervasive reality. 

Today only 1% of the lawyers and law students in the 

United States are Negro. There is only one black lawyer for 

every 7,000 black Americans and in the South and Southwest 

the ratio is one to 37,000. The comparable national figure 

for white persons is one to every 637. We are undertaking 

a program which over the next 5 years will add enough black 

lawyers to those who normally would be expected to graduate 



from law school to double the number of black lawyers in 

the nation and more than double the number in the South, i.e. 

1500 law school scholarships. Of these we will select more 

than 200 to be interns in our offices or the offices of our 

cooperating attorneys and develop special expertise in civil 

rights so valuable, particularly in this day when the federal 

government is cutting back on its civil rights enforcement. 

Moreover, we plan to increase the number of our Lawyers 

Training Institutes available to still other members of the 

Bar to enhance the capacity of the private civil rights sector. 

We plan to do this while maintaining our current litigation 

program. And that means a 60% increase in budget or more 

than $16 million to be spent over the next three years. 

These are difficult enough times for those of us who 

believe in human rights. Bishop Moore at the opening of this 

session mentioned the tragic death of Walter Reuther. We 

thought that some small recognition of his steady and 



unfailing dedication might be commemorated by naming one 

of the law school scholarships after him and this we intend 

to do. 

We had wondered, since this is a luncheon in honor 

of the Chief Justice, whether to present him with a plaque 

or a scroll or any of the conventional artifacts ordinarily 

handed out on such occasions. But we concluded that probably 

he had a closet full of them and another would make no real 

difference beyond the expression of our esteem and love. 

We do hope, however, that he takes some satisfaction in the 

naming of the law school scholarship after Walter Reuther 

his devoted friend and admirer whom he admired so profoundly. 

And now, I present to you Mr. Chief Justice Earl Warren.