Equal justice under law: the jurisprudential legacy of Judge Frank M. Johnson, Jr.

• Author: Krotoszynski, Ronald J., Jr.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.(1)

How long? Not long. Because the arm of the moral universe is long but it bends toward justice.(2)

If we abdicate responsibility to address the difficult questions of our time, those in need of refuge from the torrents of political, economic, and religious forces will find no haven in the law and the law will no longer be supreme.... A judge must always be consumed by a passion for justice which propels judgment toward the just conclusion.(3)

Judge Frank M. Johnson, Jr.'s judicial career is a profile in courage. From 1955 until his retirement from the bench in 1996, Judge Johnson unfailingly worked to make the abstract language of the Constitution a meaningful reality. In the process, he helped to reshape and renew both his native South and the nation as a whole. For Judge Johnson, "[t]he true strength of the Constitution l[ay] in its flexibility, its ability to change, to grow, and to respond to the special needs and demands of our society at a particular time."(4) His career was a testament to this vision of the Constitution as a dynamic shield against injustice.

As I was growing up in Moss Point, Mississippi, a small town on the Mississippi Gulf Coast, I was blissfully unaware of the ways in which federal judges like Frank Johnson had transformed the institutions that served as the setting for my most basic formative experiences. The public schools in Moss Point were desegregated in the early 1970s, with the active assistance of the National Guard, just a few years before I began grade school. Although I had no appreciation of it at the time, I enjoyed the considerable benefits associated with a fully integrated learning environment only because of the unfailing dedication and considerable personal courage of the federal judges who worked to make the rights set forth in Brown v. Board of Education(5) something more than mere legal abstractions. From the public library, to the public parks, to the recreational department, the fact of integration in my home town--and indeed throughout my home state--was, for the most part, a function of determined effort on the part of African-American citizens, their white allies, and the federal courts.

At the heart of the civil rights movement was a commitment to force the United States to live up to the grand words in the Declaration of Independence, words notably absent from the Constitution of 1787. The Constitution, of course, was at its inception and remains today a work in progress. During the celebrations associated with the Constitution's bicentennial in 1987, more than a few commentators emphasized that the Framers' document did a poor job of implementing the "self-evident" truth, proclaimed in the Declaration of Independence, that "all men are created equal." As Justice Thurgood Marshall wryly put it, "Well, if you're gonna do what they did two hundred years ago, somebody's going to give me short pants and a tray so I can serve coffee."(6)

Following a long and bloody civil war, the American people amended the Constitution to remedy the defects visited upon the republic by the Framers' inability to realize the full promise of the Declaration of Independence. For a time, the guarantees of the Thirteenth, Fourteenth, and Fifteenth Amendments took on a meaningful reality under the program of congressional Reconstruction.(7) In 1876, in order to secure the election of Rutherford B. Hayes to the Presidency, the Republican Party abandoned its efforts to dismantle apartheid in the states of the former Confederacy.(8) From 1876 to 1954, the amended Constitution's promise of equality largely went unkept. When the project of achieving racial justice in the United States resumed in the middle of the twentieth century, it fell to the federal judiciary to give meaning to the unfulfilled promises of an earlier generation. On the front lines of the federal judiciary at the district court level, and in Alabama particularly, the task of making public institutions reflect "self-evident" truths fell upon the broad shoulders of Judge Frank M. Johnson, Jr.

Almost half a century after the Montgomery bus boycott and the other seminal events of the civil rights era, it is all too easy to forget that the progress toward racial equality has not been solely--or even predominantly--a product of the democratic process, particularly at the state or local level. Rather, the transformation of local and state governments in the South required massive federal judicial intervention. The story of the civil rights movement is very much a story about repeatedly testing the limits of law as an agent of transformative social change, with federal judges playing an integral role in this process.(9)

To be sure, judicial intervention alone could not have accomplished the task at hand; federal legislative reforms, culminating in the passage and enforcement of the landmark Voting Rights Act of 1965, provided a structural framework for the movement.(10) The long journey from apartheid to equality required many heroes, large and small, to assume great burdens in the effort to achieve racial justice.

The campaign to enforce the rule of law in the South benefited tremendously from the professional efforts of Judge Johnson. At terrific cost to himself and his family, he resolutely enforced the Constitution's requirements against recalcitrant state and local governments bent on maintaining a racist status quo. As a district court judge, his rulings were not only trailblazing in the area of civil rights, but often marked the incendiary first contact by state and local officials with the post-Brown federal judiciary. No one can gainsay his courage in the face of sustained and premeditated opposition from many corners of the community, most notably the Governor's office.

Given the prevailing views of the majority community during the 1950s and 1960s, Judge Johnson's commitment to enforcing the concept of equal protection of the laws made him a remarkably unpopular jurist. Cronies of Governor George C. Wallace regularly inveighed against Judge Johnson, publicly urging "responsible Dixie citizens to blacklist federal judges, their families, and their friends."(11) Federal judges like Frank Johnson, bent on holding Alabama constitutionally accountable, "should be scorned, they and their families ostracized by responsible Southerners."(12) Perhaps most famously, Governor Wallace once publicly fulminated against Judge Johnson as an "`integrating, scalawagging, carpet-bagging, race-mixing, bald-faced liar' who `hasn't ever done anything for Alabama except to help destroy it.'"(13)

The political community's efforts to ostracize and vilify him did not dissuade the Judge from doing his duty. Through this storm of hate and personal invective,(14) Judge Johnson bravely soldiered on, doing his duty as an Article III judge to enforce the mandates of the U.S. Constitution. As he explained, "[I]t's just hard to ostracize people when social status is not very important to them."(15)

But Judge Johnson's legacy is not only one of personal bravery, or commitment to duty: He possessed not only a brave heart; he also possessed a wise heart and a sharp legal mind. Throughout his tenure on the bench, his opinions embodied the maxim fiat justitia, ruat caeculum: "Let right be done, though the heavens should fall."(16)

From the perspective of many white Alabamians, the heavens fell in Judge Frank Johnson's courtroom. In a series of pathbreaking decisions, Judge Johnson set about dismantling the system of de jure segregation that affected almost every aspect of community life, from the public schools, to the public libraries, to the parks, to the museums, to the bus station, to the state highway patrol.

Indeed, the Judge spent his professional life pushing, pulling, and sometimes forcing government to honor its commitment to equal justice.(17) As he put it, "[T]he Constitution guarantees each citizen full and equal membership in society."(18) For Judge Johnson, "[t]he hallmark of any society that claims to be civilized has to be its ability to do justice--to apply rules with equal favor to both the privileged and the downtrodden."(19) To achieve justice, a judge must "consistently protect[] the law from the passions of the moment, from politics, from partisanship, from prejudices, from personal, local, or sectional interests and unethical influences."(20) Judge Johnson's judicial opinions reflect an unwavering commitment to equality, to fundamental fairness, and to the equal dignity of all persons under law.

Beginning in 1956, in Browder v. Gayle,(21) Judge Johnson vindicated the notion that the law recognizes no differences in citizenship based on race. As he told his first law clerk after casting his decisive vote in Browder, "Well, we got up on this horse, now we got to ride him."(22) He continued to enforce the concept of equal protection of the law in a line of cases following Browder, and in the process desegregated virtually every public institution in Alabama.

Judge Johnson's concept of the equal dignity of all persons was not limited to questions of race. He brought the same scrutiny to bear on classifications that imposed burdens on the basis of gender. In cases like Frontiero v. Laird(23) and White v. Crook,(24) he required that the government refrain from imposing special burdens on women solely on account of their gender. In this respect, he was ahead of his time. Although the Supreme Court has come to demand "an exceedingly persuasive justification" for gender-based classifications only in the last decade,(25) Judge Johnson viewed such government classifications with great skepticism some thirty years ago.

Judge Johnson also recognized the essential dignity of prisoners and those suffering from mental...