Third Parties in Litigation: A Systemic View of the Judicial Function

discussion, but also protects "vigorous advocacy, certainly of lawful ends, against governmental intrusion."44 In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state "Brief of NAACP to Support Petition for Writ of Certiorari to the Supreme Court of Appeals of Virginia, NAACP v. Harrison, Sup. Cit. of the U.S., Oct. Term, 1960, p. 14. 42371 U.S. 415 (1963). "'lbid., at 428-29. ""Ibid. This content downloaded from 207.46.13.40 on Wed, 30 Mar 2016 06:46:25 UTC All use subject to http://about.jstor.org/terms 50 THE JOURNAL OF POLITICS [Vol. 29 and local for the members of the Negro community in this country. It is thus a form of political expression. Groups whch find themselves unable to achieve their objectives through the ballot frequently turn to the courts. Just as it was true of the opponents of New Deal legislation during the 1930's, no less is it true of the Negro minority today. And under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances. . . .45 The Court acknowledged that the state had an interest in regulating illegal practices of barratry, maintenance, and champerty, but held that such interests were not substantial enough to limit First Amendment freedoms to the extent that Chapter 33 did.46 "Malicious intent," said Brennan, "was of the essence of the common-law offenses of fomenting or stirring up litigation."47 But, continued Brennan, "whatever may be or may have been true of suits against government in other countries, the exercise in our own, as in this case, of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious."48 Neither was the court blind to political realities. "We cannot close our eyes," said Brennan, "to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community of Virginia; litigation assisted by the NAACP has been bitterly fought."49 "In such circumstances," he continued, "a statute broadly curtailing group activity leading to litigation may easily become a weapon of oppression, however evenhanded its terms appear. Its mere existence could well freeze out of existence all such activity on behalf of the civil rights of Negro citizens. . ..50 In a concurring opinion, Justice Douglas said that Chapter 33 was not "applied across the board to all groups. . . ," but instead reflected a "legislative purpose to penalize the NAACP because it promotes desegregation of the races."51 Douglas accordingly viewed the law as nothing more than an attempt to evade the Court's 1954 Brown decision.52 "Ibid., at 429-30. 46Ibid., at 439. ""Ibid. "Ibid., at 439-40. "OIbid., at 435. "0Ibid., at 435-36. 51Ibid., at 445. "21bid., at 446. This content downloaded from 207.46.13.40 on Wed, 30 Mar 2016 06:46:25 UTC All use subject to http://about.jstor.org/terms 1967] THIRD PARTIES IN LITIGATION 51 Justice White concurred in part and dissented in part. He agreed that "as construed by the Virginia Supreme Court, Chapter 33 does not proscribe only the actual control of litigation after its commencement, that it does forbid, under threat of criminal punishment, advising the employment of particular attorneys, and that as so construed the statute is unconstitutional."53 However, White thought that the sweep of the Court decision might be too broad. "If we had before us a narrowly drawn statute proscribing only the actual day-to-day management and dictation of the tactics, strategy and conduct of litigation by a lay entity such as the NAACP, the issue would be considerably different, at least for me; for in my opinion neither the practice of law by such an organization nor its management of the litigation of its members or others is constitutionally protected."254 In Justice White's view, both practices "are well within the regulatory power of the State."55 Justice Harlan wrote a dissenting opinion in which Justices Clark and Stewart joined. Harlan thought that Fourteenth Amendment rights should be judged by the "same basic constitutional standards whether or not racial problems are involved."56 To do otherwise, he thought, would be the "worst setback (that) could befall the great principles established by Broum v. Board vl Education. . 2' Accordingly, Harlan reasoned that invalidating the Virginia statute could not be "squared with accepted constitutional doctrine in the domain of state regulatory power over the legal profession. .. .57 In general, the Button record provides striking examples of how a third party interest, when thwarted in other policy-making arenas, resorted to the judiciary for relief. It reveals the strategy and tactics used by that interest (the NAACP) in commencing and maintaining litigation. Moreover, it shows how the NAACP, once having succeeded in the courts, sought to reap the practical fruits of its judicial victories. In short, Button suggests how a third party interest effectively utilized the judicial process to achieve its policy goals. And Virginia's attempt to block such efforts-which gave rise to the Button litigation itself-is a stark recognition of this fact. By contrast with the segregation cases, third parties did not play "3Ibid., at 447. "4Ibid. ""Ibid. "'Ibid., at 448. Ibid. This content downloaded from 207.46.13.40 on Wed, 30 Mar 2016 06:46:25 UTC All use subject to http://about.jstor.org/terms 52 THE JOURNAL OF POLITICS [Vol. 29 a key role in sponsoring reapportionment litigation. Those who had the greatest stake in the outcome of the litigation-the urban areas-were not content to remain in the shadows or assume an informal sponsorship role. Major Tennessee urban areas such as Chattanooga, Nashville, Knoxville, and Memphis sought and were permitted to intervene as party plaintiffs.58 This formal involvement of city governments-with their legal staffs, financial aid, and their authority to speak for large numbers of people-added significant strength to the reapportionment cause. However, urban-based private interests who would have normally been expected to support reapportionment did not do so. Professor Crane, in describing the genesis of the Baker litigation, put it this way: With the exception of the League of Women Voters, which has campaigned for reapportionment and cooperated in the attempts to achieve it by court action, other urban interests have given metropolitan city officials little assistance. Representatives of such clearly urban interests as labor, liquor, and the Tennessee Municipal League have on occasion stated that they did not favor reapportionment because it would merely increase the number of poor-quality metropolitan legislators. Even a state official of so clearly an urban interest as the AFL-CIO maintained that it found more sympathetic cooperation with the problems of labor from intelligent rural legislators than from the "bums" who reach the legislature from the county-at-large electoral lotteries in the metropolitan centers.59 In short, urban-based private interests had been so successful in achieving access and in reaching accommodation with rural legislators that they saw little profit to chance changes reapportionment might bring. Even had they chosen to participate, it is unlikely-due to their mode of operation and other factors-that they would have been as effective in sponsoring litigation as the NAACP had been in the segregation cases.