FRED AND OSCAR DIAL were white brothers with a system. They paid the fines of blacks jailed for minor offenses and pressed them into service on their plantations. They worked the blacks hard, disciplined them harshly, and beat those who resisted. Unfortunately for the future of their system, they beat Herbert "Monk" Thompson so badly that he died.
That death triggered an investigtion and prosecution by Frank M. Johnson Jr., then the United States Attorney for the Northern District of Alabama. The year was 1954, almost a century after the infamous Dred Scott decision in which the Supreme Court declared that blacks were "beings of an inferior order . . . so far inferior that they had no rights which the white man was bound to respect."
When Johnson rested his case, the defense called witness after witness to testify to the good character of the Dials. Cross-examining one, an old farmer, Johnson asked casually if the Dials were known to beat the blacks who worked for them. The witness replied, also casually: "Yes, I've heard about that."
The chief attorney for the defense called a recess, followed the witness into the corridor, and exploded in fury. He had asked earlier whether the character witnesses knew anything bad about the Dials; why hadn't the old man told him? The farmer was upset: "But Mr. Beddow, whupping a nigger ain't bad in Sumter County."
Johnson won the first convictions in Alabama in this century for peonage. But the heritage of the Dred Scott decision lived on.
These two books study Southern judges who fought that heritage. Unlikely Heroes , by Jack Bass, focuses primarily on four judges of the United States Court of Appeals for the Fifth Circuit, the appellate court one tier below the Supreme Court that supervises federal trial judges in Alabama, Florida, Georgia, Louisiana, Mississippi and Texas. "The Four," John Brown, Richard Rives, Elbert Tuttle and John Minor Wisdom, received their group title from a fellow judge incensed at their decisions; Bass uses it as a badge of honor.
In roughly chronological order, Bass tracks the central role of "The Four" in Fifth Circuit efforts to follow Brown v. Board of Education , the 1954 Supreme Court decision that declared school segregation unconstitutioinal. Brown rejected a Supreme Court doctrine that had been fundamental to upholding segregation since 1896, and it promised change wherever segregation existed.
For whites in the South, that promise was a threat, and white Southern politicians responded accordingly. Judge Rives visited Senator Lister Hill of Alabama after the latter signed the Southern Manifesto of 1956. ("We commend the motives of those states which have declared the intention to resist forced integration by any lawful means.") Hill had until then managed relative moderation on racial issues, but explained that his signature was a matter of political reality. "Well, Lister," Rives said, "I think I understand it now. You fellas have just risen above principle."
George Wallace in Alabama and Ross Barnett in Mississippi "rose above principle" with vengenance. In the battles over integrating the University of Mississippi, Barnett, then the governor of Mississippi, pushed the Fifth Circuit into initiating criminal contempt proceedings against him -- the most forceful and direct confrontation between state and federal governments in this century. Meanwhile, George Wallace continued a posture of defying the federal courts -- in particular, his law school classmate, Judge Johnson (Wallace called him a "integrating, scalawagging, carpetbagging, race-mixing, bald-faced liar") -- that would serve him politically for the better part of two decades.
For The Four, integration meant not only denunciations, threats and social ostracism, but intense debate over how far they could and should stretch judicial precedents to meet unprecedented obstructionism. Bass does a remarkable job of laying out clearly the impact legal doctrines may hae, the respect lawyers accord them, and the trepidation with which judges change them.
The generally chronological progress of Unlikely Heroes pulls in masses of anecdotal material, biographical background and judicial doctrine. Occasionally, the profusion of material threatens to derail the story, and transitions are sometimes rought. But Bass has a good story to tell, and valuable ideals to honor; he shows convincingly that his protagonists deserve the tag of "hero."
Bass mentions prominently two judges as working with The Four: J. Skelly Wright of New Orleans, whom the Kennedys promoted from the U.S. District Court there to the U.S. Court of Appeals for the District of Columbia, and the subject of Judge Frank Johnson and Human Rights in Alabama , by Tinsley E. Yarbrough.
Judge Johnson served onthe U.S. District Court for the Middle District of Alabama from 1955 to 1979, when President Carter appointed him to the Fifth Circuit. In that time, he won a national reputation for his civil rights decisions and for his seminal rulings on rights of mental patients and prisoners. In his carefully and solidly crafted essay, Yarbrough depicts Johnson as a staunch but uncommon Republican: conservative on fiscal, criminal and personal matters, but unflinching in maintaining what he perceives as constitutional protections for human rights.
Yarbrough writes at a more leisurely and less journalistic pace than Bass and, by venturing beyond civil rights into other areas of judicial activity, raises more troubling questions. He notes the enormous power and discretion that judges who take over prison systems or mental hospitals, as Johnson has, can exercise. He hints that the conflicts between legislature and judiciary that result signal judicial overreaching. But his account elicits admiration for Johnson's efforts to help those who cannot help themselves.
The heroes of these books are white, Southern, and, with one exception, Republican. That is why Jack Bass terms them "unlikely." When President Carter in 1979 appointed Joseph Hatchett, a Florida Supreme Court justice, to be the first black judge on the Fifth Circuit, Elbert Tuttle called it "the complete turn of the wheel." Now the Reagan administration -- largely white and male -- threatens to turn the wheel again: to eviscerate programs for the poor, to let the Voting Rights Act fade into oblivion, and to cut back on enforcing civil rights. These books serve valuably as reminder and inspiration, lest the heritage of Dred Scott retake us.