Roe vs. Wade is one of this year’s loudest political rallying cries--immediately familiar, and immediately dividing the audience. Already, in either party or both, someone is probably saying, “Where is Jane Roe? What happened to her? Can we get her?”
There are many such names, equally known if less divisive: Brown vs. Board of Education. Miranda vs. Arizona. Gideon vs. Wainwright. Regents of the University of California vs. Bakke. Each of these landmark litigations established some far-reaching principle of law. Over the years, they assumed almost heroic proportions.
Not so the landmark litigants themselves. Most were only minimally involved in their cases, often deriving no personal benefit because the decision came too late for them. Many handle their figurehead position poorly, wanting either more of the attention it draws or less. Others were criminals, rarely good candidates for lionization.
But it doesn’t matter, and it shouldn’t. The law protects the least and the worst of us as well as the best: That’s why Justice wears a blindfold.
Generally, we lose track of them. Has anyone seen “Jane Roe” (abortion rights) hanging around the public debates on what she calls “my law”? Does anyone know that Ernesto Miranda (right to remain silent) was quickly re-convicted and jailed again? That Clarence Gideon (right to counsel) was buried in an unmarked grave? That Allan Bakke (affirmative action) did become a doctor? That the Brown family (school segregation) reopened its suit, saying the schools are still segregated?
* Roe vs. Wade, decided in 1973, is still unsettled--a mixed blessing for “Jane Roe,” Texan Norma McCorvey, who is not yet comfortable with her position. Cast as Everywoman, she’s really “the ultimate victim,” says Sarah K. McCallister, an Austin contractor who was briefly McCorvey’s protector, “victimized not only by the original situation but by this notoriety.”
McCorvey was a drifter, a one-time carnival worker, a bar waitress and, at 22, pregnant with her third child: Her first went to her mother, her second to its father. Unable to afford an out-of-state abortion, she was resigned to adoption, but when introduced to two young lawyers eager to challenge Texas’ ban on abortions, agreed to join the case. She asked what it would entail.
“We told her, ‘No money,’ ” attorney Sarah Weddington says, “ ‘very little time, and you don’t even have to use your own name.’ ”
Not just uninvolved, she was “irrelevant, a warm body,” McCallister says, “and never intended to be anything else.” It was a good thing: She didn’t speak well--or truly, as it turned out. In a bid for sympathy, she said she’d been gang-raped, later admitting she lied. The lie didn’t come out for two decades; fortunately, her lawyers had decided not to focus on it, not wanting a judgment limited to cases of rape.
In January, 1973, the U.S. Supreme Court ruled that states couldn’t restrict abortion in the first trimester. It was too late for McCorvey, who’d had her child and given her up for adoption.
She didn’t surface until the early 1980s, apparently to answer accusations that “Jane Roe” wasn’t a real person. But she stayed obscure, working as a house painter, apartment manager and house cleaner until 1987, when she was persuaded to appear at a National Organization for Women rally against Robert Bork’s Supreme Court nomination.
Not exactly media-ready, McCorvey was a nervous, weepy woman heavily dependent on a series of protectors to help her handle her association with the case. Her fragility made many people uncomfortable, as did her lesbianism.
But she was becoming a public figure: NBC made a TV movie about Roe vs. Wade starring Holly Hunter, paying McCorvey and her two lawyers $90,000, with McCorvey getting 60%. And by the 1989 women’s march on Washington, she was proprietary about the case, saying, “My law, our law, is in jeopardy.”
There was, briefly, a Jane Roe Foundation, put together by McCallister and Texas lawyer Tom Goff to support both abortion education and McCorvey. “It could have raised money, paid her for appearances, given her a good base to operate from,” Goff says. But after signing a few of the personalized letters Goff wanted to sell for $500, McCorvey lost interest.
More briefly still,, there was a Jane Roe Women’s Center, with a 900 number ($9.95 a call) and at least one issue of a newsletter.
Now, whoever wants McCorvey must contact Los Angeles feminist lawyer Gloria Allred, who met her by chance and, Goff says, “literally snatched her away from us.” Allred is McCorvey’s attorney, providing “advice and information on cases coming down, challenges to Roe v. Wade and the significance of these changes.”
They also make appearances together--at Supreme Court hearings, in Louisiana for an anti-abortion bill, at the American Bar Assn. debate on abortion rights, at the Republican convention.
McCorvey draws the attention; Allred does the talking. It’s a partnership of sorts. “Generally, when she appears,” Allred says, “she likes me to be with her.”
McCorvey, speaking through Allred, says her travels are funded by a variety of sources--"including myself,” adds Allred. McCorvey works as a $7.50-an-hour telephone counselor at a Dallas women’s health center.
“Jane Roe,” thus, is more a curiosity than a real spokeswoman. Ironically, says McCallister, “the pro-choice issue is an issue just for people, like Norma, who need a safe medical procedure. McCorvey is Jane Roe, the consummate victim--the perfect candidate for the case, if not the perfect candidate to handle it.”
* In a landmark criminal case, it’s almost guaranteed the person involved is no hero. Take Ernesto Miranda, whose 1966 judgment guarantees that suspects will be read their rights, or “Mirandized,” before making any confession.
As for the star, “he lived like a bum. He died like a bum,” an Arizona policeman said at the time of Miranda’s death. Even his former lawyer, John P. Frank, says now, “I don’t think you’d have liked him.”
He was a star purely by chance: His petition to the Supreme Court was one of four filed on similar grounds, but because his was filed first, the case bore his name.
By age 20, Miranda had had eight years of school and a number of arrests, convictions and jailings.
One habit was kidnaping, raping and sometimes robbing women--the charge on which he was apprehnded in March, 1963. He confessed, apparently not told of his legal right to remain silent, to counsel, to be protected against self-incrimination.
Indeed, he was so unaware of those rights, or just so unaware, that he stepped down from a lineup of suspects presented to the confused victim and helpfully said, “That’s the girl.”
He was convicted, in spite of appeals, and served three years before Frank and his Phoenix law partners took his case to the U.S. Supreme Court. In June, 1966, his rape conviction was overturned, with the court ruling, wrote Peter D. Baird, another lawyer at the firm, “that suspects in custody must be explicitly told of their constitutional rights before their statements made to police could be admissible.”
A lot of good it did him. On retrial, his former girlfriend testified that he’d told her about the kidnaping and rape, and he was sent back to prison. A textbook case in recidivism, Miranda was paroled in 1972, but returned to prison again and again for various felonies, finally freed in 1975.
For the scant year of life left to him, Miranda enjoyed his celebrity in a two-bit way: He carried a stock of Police Department cards printed with Miranda warnings, autographed them and sold them for a dollar or two. In January, 1976, at age 34, he was stabbed to death in a Phoenix bar.
The suspect was arrested, read his Miranda rights, and chose to remain silent. Once released, he disappeared and was never found again.
* Unlike Miranda, Clarence Gideon seized his place in history. It was the signal--perhaps the only--achievement of his life that his case went to the U.S. Supreme Court.
Gideon was a gambler, a burglar and a thief. Born in 1910, he had finished with school and served time in a reformatory by the time he was 18. He’d also gone to prison a number of times before his arrest in 1961 for a pool-hall burglary he said he didn’t commit. Refused a court-appointed lawyer, he pleaded his own case, was convicted and was sent to Florida State Prison for five years.
Convinced of his right to representation--a right then guaranteed only in certain states and certain circumstances--he petitioned the Supreme Court, in pencil, for a hearing. It was granted, and in 1963 the court established the right of all criminal defendants to counsel.
Granted retrial and representation, Gideon asserted himself again, insisting on a particular local lawyer he believed could win his case. And he did.
Still drifting, still gambling, Gideon avoided further trouble with the law and even appeared occasionally on TV. A man who had “looked like 70 when he was 52,” says Anthony Lewis, author of the 1964 book “Gideon’s Trumpet,” Gideon was debilitated, tubercular, “shambling, slow, and not terribly focused.” His tenacity had been a one-time effort.
In 1972, at 61, he died, and his body was shipped to his mother in Hannibal, Mo., and buried in an unmarked grave. His mother, says Lewis, “said it was too bad he never amounted to anything.”
In 1984 this situation came to light, and the ACLU held a ceremony dedicating a gravestone for the man “who started the whole public defender system,” says Joyce Armstrong, director of the Eastern Missouri ACLU. The gravestone bears a quote from a letter Gideon wrote to Abe Fortas, who brought his case before the high court: “Each era finds an improvement in law for the benefit of mankind.”
* This was more personal philosophy than the public ever heard from Allan Bakke, who sued the University of California at Davis medical school in 1973 for “reverse discrimination.” Bakke, who is white, sought admission to the med school, ultimately got it and had little to say on the import of the case--or on anything else.
An engineer working at a NASA lab and a former Marine, Bakke was 32 when he completed pre-med requirements at night, applied to Davis and was refused for two years running. Believing he would have qualified had Davis not reserved 16 of its 100 places for minority candidates, he sued as a victim of discrimination.
Given the prevalence of affirmative-action programs, the case drew five dozen “friend of the court” briefs, ending in June, 1978, in a judgment so careful to offer something for everyone that Harvard Law School professor Alan Dershowitz called it “an act of judicial statesmanship.”
The court affirmed the principle of affirmative action, endorsing those programs that made race only one of many factors to consider while prohibiting strict quota systems like Davis’. And it ordered the school to admit Bakke.
Bakke entered that fall at 38. He was greeted by demonstrations, dogged by criticism and kept to himself. After graduating in 1982, he took his residency at the Mayo Clinic and since 1986 has worked as an anesthesiologist at the Olmsted Medical Group in Rochester, Minn.
Throughout the case, Bakke refused to give interviews or personal information to the press. He had an issue, he had a case publicly voicing that issue and he considered his personal life private. To this day.
* Of all landmark litigation, perhaps the most cited is Brown vs. Board of Education of Topeka (1954), taken as the end to school segregation once and for all. But the case has been reopened on the plaintiffs’ assertion that the Topeka school system is still segregated, and both sides are producing maps and statistics to settle the question.
At this point, however, the case “becomes a battle of legal wills,” says Cheryl Brown Henderson, daughter of the original plaintiff, “and loses some human quality.”
It used to have it. The original Supreme Court case--like Miranda, only one of several similar cases filed with the Supreme Court--bore the name of Oliver Brown, a Topeka welder and pastor who sued on behalf of his grade-school daughter Linda, Henderson’s older sister. Unable to attend an all-white school near her home, the child had to walk a number of blocks to catch a bus to her all-black school.
The 1954 judgment ruled that separate education was inherently unequal and segregated schools were unconstitutional. But the case was never formally closed, which made it easy for a group of Topekans to reopen it 25 years later, complaining that Topeka hadn’t desegregated as ordered.
Oliver Brown had died in 1961 at age 42, but his minor grandchildren, Charles and Kimberly, were added as plaintiffs by their mother, Linda Brown Smith.
By 1986, when the case came to trial, those children too had graduated and were no longer minors. “We did have Linda come in and tell about her part,” says Topeka attorney Richard Jones, “but it’s basically lawyer stuff now.”
The lawyer stuff focused on a total enrollment of 15,000, less than a quarter black. But “some schools,” Jones says, “were 75% to 80% black and some almost all white.” The racial imbalance was unarguable. What was arguable was whether lower test scores at the black schools were the result of inferior facilities and teaching, or of a demographic concentration of students from poor, unstable families--and, in either case, whether they were due to an intentional failure to desegregate.
The trial court ruled for the schools, but an appellate court ruled against them. Last April the U.S. Supreme Court ordered the appellate court to reconsider Brown in light of more recent school cases. And all the lawyers are preparing fresh briefs.
Meanwhile, Linda Brown Smith’s grandson, Donnell, is entering the sixth grade. He isn’t a party to the case. Linda herself, a Head Start teacher’s aide, is pretty uninvolved: Even Richard Jones no longer has her phone number. She said once that she felt exploited, having given more by lending her name than she ever got from the case.
Her sister, Cheryl Henderson, a vocational equity specialist with the state Board of Education, seems equally tired of providing that “human quality"--impatient with people who can’t “keep straight” the history or complexity of the case, convinced the issue is often misunderstood. But she still takes the media calls and accepts some invitations, if only, she says, because “I think it boils down to responsibility . . . since we’re not dead and gone.”