legal theory: critical theory

Critical Legal Readings of Walker v. Birmingham

388 U.S. 207 (1967)



In Walker v. Birmingham, a majority of the United States Supreme Court enforced contempt citations against individuals who had disobeyed a state court’s temporary restraining order, which they believed was unconstitutional, without first filing a motion to dissolve that order. The Court stated it was simply applying a preexisting procedural rule, the collateral bar rule, which prevents individuals from raising any substantive challenge to a court order if they disobey it prior to bringing the challenge back to issuing judge. The Court explained that courts must preserve their abilities to direct the methods for challenging judicial orders to ensure that individuals do not become the judges in their own cases. The opinion is routinely cited as authority for the collateral bar rule, as well as inherent judicial authority to enforce judicial orders.

No sensible understanding of the case can stop at this doctrinal level, however. The historical context crucially underscores the significance of the case, the reason for three lengthy dissents, and the disturbing dimensions of the Court’s action. As historians have amply documented, the underlying events lay at the center of the civil rights struggle and reflected Rev. Martin Luther King, Jr.’s leadership, martyrdom, and strategic choices. The challenged order forbade Rev. King’s plans for a nonviolent march to protest the racial segregation and racially motivated violence in Birmingham, Alabama.

By Birmingham city ordinance, drinking fountains, bathrooms, and clothing store dressing rooms had to be segregated by race. The Supreme Court had already rejected racial segregation in public buses; Birmingham’s response was to privatize the bus company in order to perpetuate racial segregation. Ambulances, police wagons, even elevators were segregated by race, as were theaters, ball parks, jail cells, hospitals, hotels, and cemeteries. Interracial marriage was banned. A city rule deemed it a crime for African Americans and whites to play cards, checkers, or dice together. Ordered by a federal court to provide equal recreational facilities for blacks and whites, the city closed all of its sixty-eight parks, thirty-eight playgrounds, six swimming pools, and four golf courses. Despite the Supreme Court’s decision in Brown v. Board of Education in 1954, as of 1963 all Birmingham public schools were still racially segregated by order of the local school board. The public library was open only to whites.

Segregation was maintained through violence. The Ku Klux Klan brutally beat freedom riders who tried to perform the court-ordered integration of the city bus terminal. Birmingham gained the nickname "Bomingham" because so many homes and churches of African American leaders had been bombs. Segregation was also maintained through law. Lawyers, police, sheriffs, and judges enforced the Jim Crow segregation regime. Notable among these officials was Bull Conner, the Public Safety Commissioner who sent police dogs repeated against African Americans who assembled peaceably and lawfully.

King and others had worked through church meetings and other discussions to develop a plan for peaceful protest, inspired in part by the teachings of Mohatma Gandhi as well as the principles of Christian love. They planned a peaceful protest march to coincide with Good Friday and Easter Sunday, the holiest days for Christians. King’s group tried to obtain a public permit for the march but learned in no uncertain terms that a permit would not be granted then or ever. Indeed, city officials learned of the plans for the march and filed a complaint seeking a court order to stop it. The city argued that the parade ordinance properly prevented the marches without permits and the court should issue an order directly forbidding the planned marches. That ex parte filing – made in the absence of arguments by King, his colleagues, and his lawyers – produced a court order at 9:00 p.m. by a state circuit court judge barely a day and a half before the march scheduled for Good Friday. The issuing judge was, of course, one of the good ol’ boys, a member of the government that implemented racial segregation and resisted federal court orders to dismantle it.

King and his colleagues learned of the order and spent the next day deciding what to do. In a prior civil rights struggle in Albany, Georgia, the same thing had happened: King had helped to mobilize a peaceful protest plan only to face an injunctive order. In Albany, the protesters decided to abide by the court order, to challenge it, and appeal it. In the meantime, though, the resolve, discipline, and momentum of the movement dissipated. King and his advisors agreed that Birmingham should be different. They decided to violate the order. They made no effort to challenge it before Good Friday; of course such a challenge would have been fruitless, and there was other business to take care of in the day intervening between the night-time order and the march.

King, Ralph Abernathy, and sixty others proceeded with the march as scheduled and the police arrested them. More were arrested two days later at the Easter Sunday march. The next day, Monday, attorneys for King and the others appeared in court, and sought to dissolve the restraining order. The city moved that the protesters should have to show why they should not be held in contempt. The judge found them guilty of contempt and refused to consider the constitutionality of the restraining order because King and the others had disobeyed it before trying to obtain judicial relief. The judge reasoned that only issues properly before that court were its jurisdiction to issue the temporary restraining order and whether the defendants had knowingly violated it. Each of the violators received a five-day jail sentence and a $50 fine. Eight ministers, including King, remained as petitioners in the case before the Supreme Court.

The Supreme Court itself later struck down the city’s parade ordinance as a patent violation of the First Amendment’s guarantee of freedom of speech. That lawsuit, Shuttlesworth v. City of Birmingham, [link to 394 U.S. 147 (1969)] was framed by members of the same civil rights group who had refrained from marching and thus were not barred from raising substantive challenges. But the Supreme Court heard Walker v. Birmingham first, and there stood by the procedural rule against substantive challenges to court orders by people who disobeyed them without first raising their objections in court. No one seriously doubted that following such a rule would have been futile in this case. The Supreme Court’s own majority opinion noted that "[t]he generality of the language contained in the Birmingham parade ordinance…would unquestionably raise substantial constitutional questions" and "[t]he breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question." But the defendants’ failure to apply to the court in advance of disobeying the injunction and the ordinance was determinative for the Court.

The majority reasoned that the collateral bar rule was well established; clear precedents put the parties on notice that they could not bypass judicial review of the injunction before disobeying it, and that "no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion." Here the Court inserted a footnote referring to a different ex parte injunction disobeyed by a white man who tried to organize a campaign to interfere with court-ordered school desegregation in Tennessee. The Court thereby indicated its commitment to neutrality and even-handedness – and its warning that unless civil rights protesters followed court orders, civil rights opponents would not. Acknowledging potential sympathy for King’s cause, Justice Stewart’s opinion for the Court’s majority nonetheless concluded: "respect for judicial process is a small price to pay for the civilizing hand of the law, which alone can give abiding meaning to constitutional freedom."

King did serve his sentence for contempt in solitary confinement, and there read a statement written by eight local white clergymen who called for an end to the demonstrations. King’s response, "Letter from a Birmingham Jail," became a classic document in the struggle for civil rights and in American rhetoric.

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Critical Analysis

Two basic features appear in the Supreme Court’s Walker v. Birmingham opinion: its demand to separate procedure from substance, and its invocation of even-handed, equal treatment. Critical theorists turn to historical contexts and analysis of surrounding doctrines to challenge both.

Procedure cannot be separated from substance. This proposition actually mirrors the broader critical claim that law cannot be separated from politics. The very procedural rule invoked in Walker v. Birmingham had a substantial, politicized history. In response to growing organization and protests by workers against employment conditions and practices in the 1920s, employers went to courts and obtained injunctions against strikes, organizing activities, and the very possibility of labor unions as alternative sources of law and authority. Employer associations actually forged a campaign, led by their lawyers, to develop anti-strike and anti-boycott legislation. Courts issuing anti-labor injunctions became the precedents cited by the Court in Walker v. Birmingham.

Chief Justice Warren’s dissenting opinion[ 388 U.S., at 332] and Justice Brennan’s dissent[388 U.S. 348-49] emphasize that the precise precedent, Howat v. Kansas, 258 U.S. 181 (1922), had actually been much modified by the Court’s subsequent decision in In Re Green, 369 U.S. 689 (1962), which reversed a conviction for contempt of a state injunction because the petitioner was not allowed to present evidence that the labor dispute was arguably subject to federal labor board jurisdiction. "If an injunction can be challenged on the ground that it deals with a matter arguably subject to the jurisdiction of the National Labor Relations Board, then a fortiori it can be challenged on First Amendment grounds."

The very procedural rule at issue in the case—that citizens are not free to ignore all the procedures of law—should apply to the Court itself, and yet the Court ignored the Constitution itself to insulate an unconstitutional order and unconstitutional ordinance by a procedural rule. So argued Justice Douglas in his dissenting opinion.[388 U.S., at 388].

The particular order at issue here disparately affects the poor and powerless for whom peaceable assembly and marching provide one of the few accessible modes of expression in a nation where "the rich" can buy access to newspapers, broadcast time, and billboard space. The procedure has a substantive "tilt."

Procedural and substance were not even separated by the Court’s majority itself which created out of whole clothe a substantive exception exception to the collateral bar rule, but then for unexplained reasons did not apply it to the facts of the case before it. The Court simply asserted that "this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity." (If not this case, then what??) In making this assertion, the Court acknowledged that some case COULD seem substantively so defective as to warrant an exception to the procedural rule.

The ideological effects of teaching that procedure and substance are separate could be of enormous value. The lawyer (and indeed, the citizen) comes to understand that legal outcomes that appear unfair or sinister actually have an underlying, rational explanation. They come to understand that justice in the individual case can be subordinated to the social interest in clear and general rules. The legitimacy of judges and legal rules is strengthened when ordinary observers are taught that unjust court orders and rules simply have a deeper explanation. Critical faculties are numbed.

There is a particular anti-democratic effect of this procedural rule. For it is only court orders that cannot first be disobeyed and then challenged; statutes can be. Indeed, that is the only way to test the validity of a statute. So majoritarian-made law can be disobeyed with ultimate judgment reserved to the courts, and judge-made law cannot be disobyed; the courts insulate their own power from challenges brought to any arena other than the courts. Ordinary citizens are not to think of themselves as active interpreters of the law but instead as passive receivers of the court’s law.

Conflict itself then is suppressed or sublimated in the name of stability and order. Conflict is diverted from a social setting, such as the streets, to a formal setting run by professionals in a stylized proceeding with abstruse language.

The values behind procedural rules periodically clash with the values behind other rules, and any ruling on the procedure at issue in Walker would affect the scope of free speech rights, as Justice Brennan argued in his dissent. [388 U.S., at 344]

Further, Justice Brennan’s dissent cracked the veneer of separation between procedure and substance in the case by disclosing then-current events clearly on the minds of the Justices. He warned, "We cannot permit fears of ‘riots’ and ‘civil disobedience’ generated by slogans of "Black Power" to divert our attention from what is here at stake—not violence or the right of the State to control its streets and sidewalks, but ….arming the state courts with the power to punish as a "contempt" what they otherwise could not punish at all."[388 U.S., at 349] Between the time of the Good Friday march and the Supreme Court’s deliberations, the civil rights struggles had turned from peaceful marches organized by clergy to far more militant groups. Surely this development played no small part in the minds of Justices who urged respect for law, and used their authority to reinforce a corrupt Birmingham judiciary’s punishment of peaceful civil rights protesters.

Formal equality cannot disguise substantive inequality.

Of course, there is something compelling in the Court’s reminder that civil rights advocates and opponents alike need to obey court orders; its very form of reciprocal respect implies some of the substantive vision behind the movement. But the civil rights vision embraced the equality of all people while the opponents’ views did not. The apparently moderate call for respecting order, in this drama, is a tool of the regime of oppression. As King wrote in his "Letter form a Birmingham Jail,"

The Negro’s great stumbling block in the stride toward freedom is not the White Citizen’s Councilor or the Ku Klux Klanner, but the white moderate who is more devoted to ‘order’ than to justice,…who paternalistically feels that he can set the timetable for another man’s freedom….I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice, and that when they fail to do this they become dangerously structured dams that block the flow of social progress."

King himself called for disobeying even an unjust human law in love and with a willingness to suffer the penalty. As Anthony Cook commented, this would mean "[t]hrough this unjust suffering, the transgressor evidences the highest respect for law and order while remaining true to his higher Christian duty." The disobedience of the civil rights activists enlarged their struggle for collective self-respect and dignity in a way that disobedience by civil rights opponents never could because of their opposing positions in the social hierarchy. The civil rights activists protested laws that treated them as inferior and thereby won their equality.