Practicing lawyers tend to get short shrift from the law reviews, especially when it comes to lapidary statements. Although not an everyday occurrence, it is not unusual for a law review to publish memorial tributes to a deceased law professor held in high esteem. And so too with an admired judge for whom the bell has tolled. But it is rare for a practitioner to be celebrated in this way. So it is a good thing that the editors of the University of Pennsylvania Law Review--recognizing that the practice of law is an established, here-to-stay, non-trivial ingredient of the profession--decided to dedicate an issue of the Law Review to the memory of a practitioner, Henry W. Sawyer, III. Henry was a singularly gifted advocate who achieved greatly in litigation of great consequence. He ennobled our profession. He deserves to be remembered in the pages of this venerable journal--the Law Review of which he was Managing Editor more than half a century ago.
The dominant dynamic elements, professional and personal, of this remarkable lawyer have been faithfully captured in the three tributes accompanying this one. Stewart Dalzell, in defining Henry Sawyer's decisive impact on trial and appellate courtrooms, has, in a compellingly felicitous phrase, termed Henry a "Voice of Liberty." William Coleman, building on Whitehead's linkage of art and law, has crafted a lifelike "[p]ortrait" of Henry--a portrait of an artist who remained a young man almost to the end of his long life. And Arlin Adams has traced the unorthodox career of a lawyer willing to take on the "[u]npopular" cases.
A comprehensive survey of Henry's artistry as an advocate would call for close scrutiny of the dozens and dozens of trials and appeals Henry handled in four decades of mastery of the courtroom. But the timetable of this tributary issue of the Law Review does not permit a research enterprise of that dimension. Perforce, it is necessary and proper to confine our focus to the Sawyer cases of greatest public consequence: the three cases Henry took to the Supreme Court. Confining the focus in this fashion foreshortens--and to that extent distorts--Sawyer's corpus juris; it leaves out of account chapters of the Sawyer story that matter a lot, such as the summer of 1965 which Henry spent in Mississippi together with scores of other lawyers (most of them younger) who signed on to protect the voting rights of black Americans. But the three Supreme Court cases were of greatest public consequence. In each Henry prevailed--to the immediate benefit of his clients and to the lasting benefit of his country.
The Dalzell essay centers on the first of the three cases--Deutch v. United States.(1) In arguing Deutch, Henry wove into his detailed recital of the events giving rise to the prosecution a single electrifying fact--a fact of no readily demonstrable doctrinal authority but of overwhelming moral authority--which, as the Dalzell essay explains, appears to have been the ingredient which moved five justices to overturn Henry's client's conviction for contempt of the House Committee on Un-American Activities. I will discuss Henry's two other Supreme Court victories--School District of Abington Township v. Schempp(2) and Lemon v. Kurtzman.(3) In doing so, I will try to avoid another distortion endemic in reprises of leading Supreme Court cases--the tendency to look only at the argument and opinions in the Supreme Court, neglecting what transpired below. In both Schempp and Lemon it is clear that a masterly litigator planted in the trial court the seeds of the fruit that was to ripen on appeal.
ABINGTON SCHOOL DISTRICT V. SCHEMPP
The Schempp case had its inception in a letter written in 1957 to the Philadelphia chapter of the American Civil Liberties Union. The letter writer, Ellory Schempp, was a high school student, the oldest of three Schempp children enrolled in the public schools of Abington Township, a Philadelphia suburb. The letter described the discomfort that Ellory, whose family was Unitarian, felt during the Bible reading and recital of the Lord's Prayer that launched each school day. Ellory wondered whether the ACLU--which, so he understood, cared about issues of this sort--would regard this as a problem. Ellory had heard good things about the ACLU's endeavors and he enclosed ten dollars to further those endeavors.
On receipt of the letter, Spencer Cox, the executive director of the ACLU's Philadelphia chapter, consulted Bernard Wolfman, an ACLU member and young partner at Wolf, Block, Schorr & Solis-Cohen.(4) Wolfman, who lived not far from Abington, agreed to call upon the Schempps and explore the matter. An interview with Ellory and his younger siblings, Donna and Roger--all three seriously troubled by the obligatory prayer exercises--and then with their parents, satisfied Wolfman that the Schempp family was prepared for the difficulties that litigation might entail, if the board of the ACLU chapter were to conclude that the chapter should take on the matter. Some initial research persuaded Wolfman that the morning exercises that disturbed the Schempps--the Bible reading portion of which was required by a Pennsylvania statute--posed substantial and unsettled constitutional questions.
Wolfman then reported his findings to the board of the ACLU chapter. All members of the Board were persuaded that the Schempps' religious freedom issues were proper ACLU issues. Several members, however, felt that taking on a litigation burden of such expectable magnitude was not a prudent allocation of limited resources, given their commitment to assisting those still being tarred by McCarthyism and its dismal legacy. After extended discussion, the Board voted--only to find itself equally divided. The deciding vote was that of the Chair, Clark Byse, a Penn law professor.(5) Byse noted that, as a Catholic, he derived great comfort from the Bible; but, since all of his fellow board members saw in the Schempp children's predicament constitutional issues of gravity, he would vote with those who felt the chapter should agree to take the matter on.
The Board's decision to provide counsel for the Schempps, however, did not mean that Wolfman would be that counsel. Wolfman decided that for him, as a Jew, to represent the Schempps in a challenge to Bible reading and recitation of the Lord's Prayer merely would add unnecessary and probably detrimental baggage to what clearly would be a controversial and, in many quarters, an unpopular cause. Wolfman so advised Spencer Cox and recommended that his friend Henry Sawyer--an ACLU member and young partner at Drinker Biddle & Reath whom Wolfman had known since they were fellow law students at Penn--be asked to assume the representation. Cox acquiesced, so Wolfman presented the proposal to Henry Sawyer, and Henry agreed to represent the Schempps.
In the District Court
In February 1958, Henry filed the Schempp complaint in the United States District Court for the Eastern District of Pennsylvania. The defendants were the Abington School District, its Superintendent, and other school officials. The object of the suit was to obtain a decree enjoining the enforcement of section 1516 of the Public School Act(6) and to declare it unconstitutional. Section 1516 was a directive that "[a] t least ten verses from the Holy Bible shall be read, or caused to be read, without comment, at the opening of each public school on each school day, by the teacher in charge."(7) Although not required by the statute, the prescribed Bible reading was, in the Abington schools, routinely followed by a recitation in unison of the Lord's Prayer, which in turn usually was followed by the Pledge of Allegiance. Henry's theory of the case was that the prescribed Bible reading, whether or not followed by the Lord's Prayer, constituted both an establishment of religion and an infringement of the free exercise of religion in contravention of the First Amendment, as made applicable to the states by the Fourteenth Amendment.
Under the provisions of the federal Judicial Code (Title 28) then in force, a constitutional challenge to a state statute was required to be heard by a three-judge district court, at least one of whose members was a circuit judge. The Schempp district court consisted of Chief Circuit Judge Biggs and District Judges Kirkpatrick and Kraft. When the matter came on for trial, the district court heard testimony from the Schempps regarding the incompatibility of certain aspects of Biblical doctrine, especially portions of the King James Version, with the religious beliefs of the Schempp family. Further, both sides presented expert witnesses.
The expert witness presented by Henry Sawyer was Dr. Solomon Grayzel, an ordained rabbi who was editor of the Jewish Publication Society. In its opinion, the district court summarized Dr. Grayzel's testimony at some length:
Dr. Solomon Grayzel testified that there were marked differences between the Jewish Holy Scriptures and the Christian Holy Bible, the most obvious of which was the absence of the New Testament in the Jewish Holy Scriptures. Dr. Grayzel testified that portions of the New Testament were offensive to Jewish tradition and that, from the standpoint of Jewish faith, the concept of Jesus Christ as the Son of God was "practically blasphemous." He cited instances in the New Testament which, assertedly, were not only sectarian in nature but tended to bring the Jews into ridicule or scorn. Dr. Grayzel gave as his expert opinion that such material from the New Testament could be explained to Jewish children in such a way as to do no harm to them. But if portions of the New Testament were read without explanation, they could be, and in his specific experience with children Dr. Grayzel observed, had been, psychologically harmful to the child and had caused a divisive force within the social media of the school. Dr. Grayzel also testified that there was significant difference in attitude with regard to...