TYLER, TEX. -- Justice in Texas is not an abstraction, but flesh and blood and, as only real life can render it, a federal judge. William Wayne Justice is chief judge of the eastern district of Texas, where the piney woods, catfish ponds, rebel flags, roadside barbecue shacks, pillared mansions, idioms and manners all speak of the Deep South.
This judge named Justice is not so simply defined by title and geography. His courtroom in Tyler, where the necks are said to be redder than the roses, has served as an unlikely forum for many of the major civil liberties issues of modern America.
As the judge who ended racial segregation in east Texas schools, ruled that children of illegal immigrants should not be charged tuition for public education, directed Texas to stop abusing juveniles at state detention centers, ordered junior colleges to reinstate male students expelled because of their long hair, mandated bilingual education in elementary schools and directed an overhaul of the Texas prison system, Justice not surprisingly provokes superlatives -- and expletives.
He has been called the most hated man in Texas, the most powerful man in Texas and the real governor of Texas. Civil libertarians view him as a courageous figure unafraid to force bureaucracies to adhere to the Constitution. Many Texas politicians, who consider their state a republic unto itself, regard him as the symbol of federal intervention. Conservative scholars say his orders are costly and impractical, that he has a misguided notion of a judge's role in the balance of powers.
Justice, an unassuming man who has lived all of his 67 years in east Texas (except for service in India during World War II), is a self-proclaimed populist who defines his mission as "to provide equal justice for poor and rich, and to try to follow the law." As he enters his 20th year on the federal bench, he has assumed his normal position -- smack in the thick of things.
That was assured on the final day of 1986, when he issued another order in the massive and seemingly endless prison case Ruiz v. Estelle. Six years after ordering the state to clean up its prisons, Justice cited Texas for contempt of court, saying it had not sufficiently improved conditions in the system, the second most populous in the nation, behind California's. Unless progress is made by April 1, Justice will fine the state $800,000 a day.
In the days following the order, the postman delivered the expected smattering of hate mail to the judge's chambers.
Postmark Rosenberg: Mr. Justice, What's the matter with you anyway? Do you honestly believe that the citizens of Texas want prisoners who have murdered back out on the streets just because you don't want two-bed cells? I certainly hope it's your family instead of mine that the scum decide to violate the next time they get out.
Postmark Houston: Dear Judge Justice, Please send me your home address so that we might furnish each and every one of the convicts with it so that they might come by and thank you personally. Hopefully they all might like Tyler so much that they will stay there as well.
Postmark Dallas: Dear Judge, Based on what I hear and read you are the most despised man in Texas. What do you think your children and grandchildren think of you? Have you thought of them? The state of Texas cannot afford the prisons we have now -- not to think of what it will cost after all your ideas are completed. How about a suggestion -- retire|
The contempt finding coincided with word that the prisons had reached the state-mandated population limit -- 38,377, 95 percent of capacity -- and briefly might have to turn away new inmates. That happened for a week in 1982, and sheriffs, stuck with unwanted prisoners for a few extra days, lambasted Justice, who first set capacity standards to prevent unconstitutional overcrowding. Once again, some sheriffs vowed to haul prisoners to the state prison at Huntsville and leave them handcuffed to the gates.
Bill Clements, the gruff Dallas oil man who defeated Mark White for the governorship in November, made an unusual pilgrimage to Tyler to meet Justice a few days before his inauguration. He told the judge that he welcomed the contempt citation because it cleared the air. He also said that he had a plan to get the needed money -- perhaps $400 million -- to improve prison conditions, and that in the meantime he wanted to put up barracks-type housing on the prison grounds.
Although Justice was interested in action, not words, the meeting marked a turning point. William Turner, the lead attorney for the prisoners, said that beforehand he thought the meeting would be silly, but that it took on great symbolic weight.
"For the first time the state was not attacking Judge Justice," Turner said. "Equally important, a governor was finally taking personal responsibility for the prisons. Instead of the usual distance and deniability, Clements in effect said, 'I'm going to take over here. I'm responsible.' Finally, the symbol of the conservative Republican governor going to make peace with the populist federal judge was fascinating. It was like Nixon going to China."
To many Texans, Justice has seemed as foreign as China. In the letters that flow into his office, he is often told to go back to where he came from, but that trip would be a short one. He was born and reared in Athens, the Henderson County seat, about 35 miles southwest of Tyler.
Athens and Tyler represent the extremes of east Texas society. Tyler, in Smith County, was founded by slave owners who cleared the land for cotton and later grew rich on the black gold of the nearby oil fields. Athens had neither cotton nor oil, just peanuts and black-eyed peas. Ralph Yarborough, the former senator from Texas who for decades led the liberal wing of the state Democratic Party, grew up in Henderson County. He looks on the bright side of that economic divide.
"You've heard, 'Where wealth accumulates, men decay'?" Yarborough once said. "Well, our theory for Henderson County is that wealth didn't accumulate and men didn't decay."
Yarborough was a close friend of the judge's father, Will Justice, a lawyer of skill and flair, of whom it was said: "There is no justice in east Texas but Will Justice." As a prosecutor, he went to juries with 156 cases and got convictions on all but one. As a defense attorney, he handled more than 200 capital cases, and the worst sentence a client ever received was 40 years.
When William Wayne was 7, Will Justice made him partner. He changed the stationery and the nameplate above his office door to "W.D. Justice and Son." The son's reverence for his father was such that he gladly accepted this predetermined role, saying, "I always felt that I ought to do what he intended for me to do."
As Justice learned it from his father, the law was more than a job. He remembers how his dad would come home every night from his courthouse square office, sit down in bed after dinner, his head propped up by a few pillows, a big cigar in his mouth, a box of kitchen matches at his side, and read his files and case law for hours on end.
That memory is one of three that resonate among his childhood recollections.
Another is of the freight trains that rumbled through Athens several times a day during the Depression, with hungry, jobless men "hanging on the boxcars as thick as flies." Some of those men would knock on the Justices' back door, one of the places in town where they could get some food. The third memory is of playing with black kids and white kids in the back alley and hearing a white friend's mother scold her son for mixing with the other race.
What other people remember about Justice during his early days is less vivid. He was an unexceptional student at the University of Texas. After the war, when he returned to Athens to practice law at Justice & Justice, his manner was conventional and unassuming, revealing a sharp mind but none of his father's flamboyance.
The first case they tried together was a lesson in style. It involved two junk dealers accused of selling stolen property, and young Justice thought they had no case. When his father asked, 'Wayne, would you like to make the final arguments for us?' he said no way. The father laughed, slapped him on the back, strolled toward the jury and began an irrelevant appeal to passion and prejudice. The jury went out and returned in 10 minutes with an acquittal. "I learned from that," Justice said, "that there is always something that can be said -- and should be said."
Justice became a small-town stereotype -- an overweight, cigar-smoking Rotary Club president whose career ascent was based on political patronage. Yarborough, the old family friend, was chiefly responsible for his appointment as U.S. attorney in 1962. Six years later, after going to the White House and cutting a deal with fellow Texan Lyndon B. Johnson, Yarborough got Justice the federal judgeship.
By then, Justice's father had died, he himself had quit smoking, started running and working out, and lost 50 pounds. He felt at peace with himself, free to follow his instincts and the law, protected from the vagaries of politics and public opinion by a lifetime appointment.
Justice began his judgeship two months after the Rev. Martin Luther King Jr. was assassinated in Memphis. In Tyler, he found a city literally divided by railroad tracks. Blacks lived on the north side and attended Emmett Scott High School. Whites lived south of the tracks. They had two high schools: John Tyler, where most of the students were from working-class families, and Robert E. Lee, the rich kids' school.
Nearly 15 years had passed since the courts began desegregating southern schools, but in Tyler change came slowly. The first step was taken in 1963, when students were allowed to switch schools voluntarily. In 1966, the school board chose four black teachers from Scott to teach at Robert E. Lee.
Dorothy Pendleton, who grew up in north Tyler and was educated at all-black schools through her college years, was one of those four black teachers. It was her first experience in an integrated setting, and she remembers feeling "like an animal at the zoo, always stared at." The white teachers, she recalls, tended to be nice to her when they were alone, but "when there were other whites around, it was as though they couldn't see you."
In 1970, as part of an agreement worked out in Justice's court, Scott was closed and the two white high schools were fully integrated. Martin Edwards, who had just been elected the first black member of the Tyler school board, sat in the courtroom during the hearings. Since his viewpoint differed from that of the white school board members, he was forced to retain his own lawyer, at his own expense.
"I shall never forget the day that the decision was ultimately reached," Edwards said. "When I came out of the courtroom and approached the elevator in the federal building, this white man came up to me, accompanied by others, and said, 'If anything happens to my girls, I'm coming after you.' I'm going to tell you that scared the hell out of me."
The racial tension worsened in the spring of 1971, with Justice taking the heat. At John Tyler, black students rebelled during a quota-rigged cheerleaders election and staged a walkout. More than 200 blacks were expelled by the school board, which set strict standards for readmission. When a lawyer took the case to Justice's court, the judge viewed it as a situation where the white school board was "tickled and eager to get rid of black students." He ordered the board to readmit them immediately.
At Robert E. Lee, black students were enraged by the school's Confederate symbols -- the rebel flags that lined the campus walkways, the "Rebel" nickname, the "Rebellette" cheerleaders. The school colors were red and white, and one day the football coach gave a pep rally speech that ended, "Always remember to be proud of the red and white." Black kids stormed out and started ripping down the Rebel flags.
Debby Magee, a student at Robert E. Lee that year, remembers that her father, like many parents in Tyler, blamed the turmoil on Judge Justice. "Justice was blamed for everything," said Magee, who now works in Justice's office and has been disowned by her dad. "You would go home and the parents would talk about this sonuvabitch trying to degrade their children. That's when the 'Impeach Judge Justice' bumper stickers got real hot."
After school, white teen-agers circled the courthouse on Erwin Street, waving Confederate flags and cursing the judge. One of his clerks remembers that a barber stopped his haircut in midshear when he revealed that he worked for Justice. The judge's wife Sue had to drive back to Athens to get her hair done. The painters who were working on the Justices' house walked off the job. His secretary, Marcelle Simmons, read every piece of hate mail and listened, politely, to every irate telephone call.
"I never hung up on anyone," Simmons said. "I always listened and said, 'I'll pass the message on to the judge.' I would not use their language, however. Many times they called him a nigger lover. I'd get angry, but the judge has the greatest ability to handle it. He'd say, 'I have to do what I think is right. I can't pay any attention. They have a right to criticize.' "
Justice has been ostracized in Tyler ever since. He and his wife are rarely invited to social functions. When the judge dines at the Petroleum Club, he usually sits alone or with his law clerks. When the city honored the great tailback Earl Campbell, who went from John Tyler High School in the mid-'70s to win the Heisman Trophy at the University of Texas, Justice, an avid Longhorns football fan, the man who made it possible for Campbell to attend an integrated high school, was not invited.
"My white coworkers still hate him," said Dorothy Pendleton, entering her 22nd year as a business teacher at Robert E. Lee. "Any time his name comes up, they start moaning. But I love him. His name, it is so fitting."
In the long-running confrontation between Judge Justice and the State of Texas, the first key figure was a Mexican American girl from El Paso named Alicia Morales.
As the oldest child in a large family headed by a drunken, unemployed father, Alicia worked after school and on weekends starting when she was 12, and she gave all but $5 of her weekly earnings to her father. One day, when she asked him whether she could keep $8, her father became enraged, beat her with a broom, dragged her to the local detention center and asked to have her sent away. Without a lawyer, without a hearing, Alicia Morales was sent to the state home for girls in Gainesville for nearly four years.
In 1970, Steve Bercu, a public interest lawyer in El Paso, discovered that scores of young boys and girls like Alicia were being sent to state homes without due process. He filed suit in state court and obtained a discovery order to talk with some of the incarcerated youths. When he arrived at Gainesville, the long-haired Bercu was told that the state did not want him to speak to his clients. Since Gainesville was in Justice's district, Bercu made the journey to east Texas and got an injunction from the federal judge ordering the state to let him in.
In his first interviews at the juvenile homes, Bercu heard horrifying stories not only of how these children were being sent away, but of what was happening to them there: of youths being tear-gassed while locked in their cells; of scores of them being chained together and forced to move in unison across a field, picking the earth with sharp hoes; of skinny and effeminate boys being placed in the same units with bullies and rapists. With help from 200 law students at Texas and Southern Methodist University, Bercu and his associates interviewed all 2,700 youths in the state homes. They went to trial in Justice's court with a class action suit charging the state with denial of due process and cruel and inhuman punishment of children.
The state not only defended the system but argued that it was a national model. Its strategy was to deny, resist, threaten witnesses and attack the judge. One day Justice and his law clerk, Richard Mithoff, drove over to the boys' home in Gatesville for a firsthand look at the facility.
"I remember how terribly moved the judge was by what he had seen," Mithoff recalled. "By young children being locked up in solitary confinement. He was dismayed that the state would deny it was happening rather than try to change it."
Near the end of the trial, one of the state's four attorneys, Max Flusche, realized that he was arguing a bad case and closed his cross-examination with the words, "I better quit while I'm behind." But the state did not quit, and after Justice ruled for the plaintiffs and directed the state to make sweeping changes in the system, the attorney general's office began an appeals process that dragged on for 12 years. In the middle of that process, the Texas House of Representatives voted to place a youthful offenders facility next to Justice's home in Tyler.
"Anybody who wants to understand why Justice issues such detailed remedial orders and insists upon compliance ought to go back and study that Morales case," said Otis Carroll, a Tyler attorney. "What the state was doing then would be universally scorned today, yet the legislature supported it and the public either didn't know or didn't care. Justice did what he had to do to get their attention."
The Texas prison case began in the early 1970s when Justice had his law clerks inventory hundreds of inmate habeas corpus writs and letters that complained of cruel and unusual punishment in the state prisons, and then recruited a lawyer to develop them into a civil action suit. It was in many respects a replay of the Morales case on a larger scale.
The state not only denied that there were problems in the corrections system but insisted that its prisons -- which had two doctors for every 17,000 prisoners, where 2,000 inmates slept on the floor and where inmate trusties known as building tenders essentially ran the cell blocks through bullying, coercion, rape and blackmail -- were the best in the nation. The basic approach of state officials was to drag out the case and blame Justice for any violence in the prisons after he ruled against them.
Today, some state officials acknowledge that their past behavior, not the activism of the federal judge, was the central issue.
"Our attitude has changed dramatically from when this case was first filed," state Attorney General Jim Mattox said last week at a news conference where he discussed the state's response to Justice's recent contempt finding. "There was a time when the state was probably not acting in good faith. Some of the evidence that was put forth was not truthful and honest. We are not taking that approach anymore."
That confession was another sign of how profoundly Texas has changed during Justice's 20 years on the bench. When he started, the Texas mystique was of a place apart, suffused with its own myths and symbols and ways of doing business, which no outsider, especially not a federal judge, could challenge. The Texas way was the right way. Period. It was a place with an enormous contradiction -- built on the ethic of rugged individ- ualism and yet denying individual liberties to groups at the bottom of its power structure.
As the frontier myths faded with urbanization, as economic decline brought a certain humility, as the population grew more black and Hispanic, conflict -- and change -- became inevitable. To an extraordinary degree, that conflict and change was played out in a federal courtroom in Tyler.
Justice's critics, such as University of Texas law professor Lino Graglia, argue that the judge became the instrument of that change, and in so doing misused his authority. "The role of the judge is to interpret the law," Graglia said. "Not to make the law, not to change the social policies that the legislature has established by passing the law."
There is another way of looking at it.
"You know the Harper Lee book 'To Kill a Mockingbird,' " said Richard Mithoff, the former Justice clerk who is now a successful Houston trial attorney.
"Every trial lawyer knows that story of the lawyer -- played by Gregory Peck in the movie -- who defends a black man accused of raping a white woman in a small southern town. There is that marvelous scene where the lawyer's little girl, Scout, asks the lady next door why it is that her father has been chosen to defend this man. Why her father? And the woman tells Scout, 'There are just some men in this world who have to do the unpleasant work that no one else will do, and your father is one of those rare men.'
"I think Judge Justice is one of those men. I think he is doing what many judges and lawyers would rather not do. He is ruling in the tough cases in the areas that are breaking new ground in constitutional law and doing it with courage and fairness and grace."