151. Gender relations of the late (very late) 19th century

The Warren Court of 1961 was composed of a bunch of nineteenth century gentlemen.  (See post 150.)   And this meant they were, to a man, pre-feminists.   This is a matter of chronology, not of their attitudes toward women.  So far as I know, they all supported the suffragettes.   The point is that was the women's movement of their youths.  Their characters were formed long before Betty Friedan published her book. 

Some of the justices were more pre-feminist than others.  Here's Bruce Allen Murphy describing William O. Douglas:

One day, Douglas had boarded a plane on the way to a speech when an attractive blond stewardess approached him.  Upon seeing the white-haired old passenger in the rumpled suit and mismatched tie, she thought that he had used his life savings to take his first plane trip.  "Where are you going?" she asked sweetly.

Douglas smiled at the woman and responded with a crooked grin, "Don't you know who I am?"

"No," she answered.

"I'm Justice William O. Douglas," he said as he handed her his card.  "Why don't you come and see me in my office in the Supreme Court of the United States?"

Sure enough, on her next flight to Washington, the young stewardess called Douglas for an appointment.  [An aide] was immediately dispatched to pick her up and bring her to the Justice's office.

Just a short time after she had entered Douglas's chambers, though, members of the staff began hearing strange sounds from inside - shouts, banging furniture, and running feet.  A short time later, the office door flew open and out rushed the young woman, her face all flushed and her clothing badly disheveled, shouting at the the startled office staff how outraged and disgusted she was.  Douglas, she said, had chased her around his desk, grabbing at her clothes and demanding that they go to a motel immediately for a sexual liaison.

When you realize how Douglas felt about women - his third wife said he beat her - it becomes easier to understand his opinions in cases such as Griffin v. California, in which he ordered the retrial of an exceptionally brutal rapist merely because the prosecutor had complied with a longstanding California statute.  (For an outline of the facts, see post 47.) 

In the 19th century, some states, including Indiana and Alabama, enacted statutes saying that neither the prosecutor nor the judge should draw the jury's attention to the self-evident fact that the defendant hadn't testified.  (Epps, 1 N.E. 491 (Ind. 1885); Clarke, 78 Ala. 474 (1885).)  California, by contrast, had enacted a statute that said it was okay.  Suddenly, on April 28, 1965, Douglas announced that, as a matter of federal constitutional law,  Indiana and Alabama had gotten it right in the 1880s and that now California had to follow suit. 

We know how the fifth amendment suddenly acquired a meaning on April 28, 1965 that it had never possessed before: Justice Douglas said so, and he got a majority of his Brethren (they were still using that nauseating "my Brother" schtick in 1965) to go along.  Simple. 

But, as Marianne Faithfull once asked in a slightly different context, why'd he do it?  What was the point of pretending the Indiana and Alabama statutes were part of the Constitution? 

One reason, perhaps, was that the justices were 19th century guys, and that made them partial to 19th century statutes.  But Douglas offered a different explanation.  He said that California's failure to adopt the statute "cuts down on the privilege [not to testify in one's own defense] by making its assertion costly." 

"Costly" was a metaphor, and upon examination not a very clear one.  Presumably Douglas meant something like "leading to the possibility that the jury will think the reason the defendant didn't testify was because he had something to conceal, which in this particular case was the truth."  In his  next breath he agreed that the jury might very well entertain suspicions along those lines even without prompting from the prosecutor or judge.  The difference, he said, was that the mental processes of jurors will be significantly different if the judge "solemnizes the silence of the accused into evidence against him". 

This was an empirical argument, and needless to say Douglas had no empirical evidence to back it up.  But one of the really great things about being a Supreme Court justice is that you can fabricate all the data you need.   (See post 142.)  And - the coolest thing of all - people wait until you're dead before pointing out what a shameless fraud you were about it.

Douglas also offered a second explanation for his and his colleagues' decision to remedy the oversight of the fifth amendment's drafters, and this one was even more embarrassing: "For comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice,' which the Fifth Amendment outlaws." 

"The inquisitorial system" is used by most countries around the world, including the hyper-civilized nations of continental Western Europe.   It's "inquisitorial" as opposed to "adversarial" only because witnesses are questioned by judges rather than advocates.  Douglas was  thinking, confusedly but revealingly, of the Spanish Inquisition, as if a prosecutor pointing out the obvious was the crowning horror of "The Pit and the Pendulum."

The significant point isn't that Douglas's Griffin opinion was almost unbelievably lame.  Most of his later opinions were.  The interesting question is why he wrote such a lame opinion to produce such a grotesquely unjust result in this particular case.  When you consider his own attempted rape of the stewardess in his office,  it's not hard to guess what was going on in Griffin just below the surface of the justice's robe.  

If Griffin had raped and beaten to death an elderly male lawyer, say, for example, a justice of the United States Supreme Court, and if he had been seen buttoning his pants while walking away from his victim, can anyone doubt for a minute he would have experienced the molecular torture of the cyanide chamber regardless of anything the prosecutor and trial judge said at his trial?

(Griffin was  convicted and sentenced to death a second time, but that conviction was reversed because of the judge's rulings concerning evidence of his attacks on other women.  After the second reversal he was apparently released to find additional victims.  426 P.2d 507)