On Anthony Lewis (1927–2013)

Before Anthony Lewis—who died on March 25—began covering the Supreme Court for The New York Times in 1955, there were, of course, journalists who reported on legal decisions. But Lewis, who attended Harvard Law School as a journalism fellow in 1956 and went on to teach both there and at the Columbia Journalism School, created something different: a new approach to legal journalism. He combined sophisticated legal analysis with an unparalleled ability to write in plain, lucid English, translating the Court’s decisions, explaining their implications, and assessing their significance for a broad readership.

Since then, many have followed along a similar path: Linda Greenhouse, Nina Totenberg, Dahlia Lithwick, Lyle Denniston, Joan Biskupic, Jeffrey Toobin, David Savage, Lincoln Caplan, and Adam Liptak, to name just a few. They all owe something to Lewis. He showed that it could be done, and did it with a grace and commitment second to none.

But Lewis was more than a path-breaking newspaperman. He was the nation’s most consistent voice for justice for over half a century. In his best-selling books, more than thirty years of columns for The New York Times, and his many contributions in these pages, Lewis insistently told stories of injustice, with the evident hope that by telling them, he might help create pressure to correct wrongs.

Lewis’s conviction and passion can be traced to his earliest work experiences. He won his first Pulitzer Prize, while working at the Washington Daily News, for a series he wrote on the Navy’s wrongful dismissal on security grounds of Abraham Chasanow, a civilian who was employed in an office responsible for charting the oceans. Chasanow was accused by anonymous informants of associating with Communist sympathizers, and denied a fair chance to confront the charges. Lewis’s series of articles on the case is credited with convincing the Navy to review the case, exonerate Chasanow, and reform its security procedures. That experience seems to have remained with Lewis throughout his life. He devoted countless columns on the New York Times Op-Ed pages to such stories, not only in the US but abroad, and, not infrequently, he helped see that justice was done.

As a young lawyer at the Center for Constitutional Rights, I was often the beneficiary of Lewis’s storytelling. In the late 1980s and through the 1990s I represented several men and women whom the government sought to deport for their political affiliations or ideas, often on the basis of secret evidence that they had no opportunity to confront or rebut. They were latter-day victims comparable to Abe Chasanow. Lewis wrote about each one of them.

In 1987, for example, he condemned the Reagan administration for attempting to deport Margaret Randall, an American-born citizen who had taken Mexican citizenship, for advocating “the doctrines of world communism” in her poetry and oral histories. That same year, he brought the nation’s attention to the immigration service’s arrest of seven Palestinians and a Kenyan woman in Los Angeles. The case for deporting them—for distributing magazines for and having affiliations with the Popular Front for the Liberation of Palestine—lasted until 2008, when the George W. Bush administration finally abandoned it. Lewis wrote about ten columns on the case at The New York Times over those two decades, repeatedly calling for it to be dropped. In the end, that’s what happened.

In 1997, Lewis opened a column about Nasser Ahmed, another of my clients facing deportation for his political affiliations, as follows:

The prisoner has been in solitary confinement for 17 months. There is no charge that he has ever committed a crime. He is held as a danger to the security of the state—on the basis of evidence that he is not allowed to see and cannot answer.

It sounds like a report from a tyrant state, but it is happening in our country.¹

Under pressure, the immigration service concluded that it could declassify and disclose some of the previously secret evidence. After hearing Ahmed’s response to it, the immigration judge who had initially found him a security risk changed his mind and concluded that he posed no danger and should be granted asylum and released. The immigration service appealed to then Attorney General Janet Reno, who had the power to reverse the decision single-handedly. In 1999, Lewis followed up with another column, entitled “Janet Reno’s Test,” in which he called on the attorney general to let the immigration judge’s decision stand.

A source inside the administration told me later that at the attorney general’s morning meetings, Reno began referring to the matter as “the Tony Lewis case.” In the end, no doubt due more to Lewis than anything we did as lawyers, she allowed Nasser Ahmed’s release. He lives here, a free man, to this day. Lewis understood the power of stories, and in cases like Ahmed’s and Chasanow’s, his storytelling was an essential catalyst for justice.

Lewis’s columns similarly brought much-needed attention to the harsh 1996 immigration law that, according to the government, rendered immigrants convicted of minor crimes automatically deportable, without even an opportunity for judicial review. Lewis wrote column after column about immigrants ensnared in this law for minor crimes of years ago, such as Mary Anne Gehris, a German national brought here as an infant, who pled guilty to a misdemeanor after pulling another woman’s hair in an argument.

Years later, she found herself facing deportation, retroactively, for that offense. The Supreme Court ultimately interpreted the law in another case to preserve judicial review and some room for discretionary waivers of deportation. Lucas Guttentag, the ACLU lawyer who argued the case, told me that Lewis “single-handedly elevated [the issue] to public consciousness through his series of columns on the intolerable consequences of the law and the critical role of the courts. To this day, I think his columns were as important as the briefs we wrote.”

The subjects of all of these columns were foreign nationals, some accused of crimes, others of terrorist ties. They were the kinds of people whose plights a democratic society is apt to disregard. Lewis had a particularly sympathetic ear for those whose cries the majority was least likely to hear, and repeatedly called on the rest of us to consider their claims. He believed that by telling their stories, he could appeal to the nation and its leaders to live up to our highest ideals. You can search the Op-Ed pages of today’s newspapers for a similar voice, but you will not find it.

The other crucial formative experience of Lewis’s early career was his coverage of the Supreme Court under Chief Justice Earl Warren. This is the Court that declared segregation unconstitutional, extended federal rights protections to the states, required the states to provide lawyers for all indigent criminal defendants, and expanded First Amendment protections to libel and seditious speech. When Lewis wrote, in Gideon’s Trumpet (1964), that the Supreme Court “often provides a forum for those—the despised and rejected—who have no effective voice in the legislative chamber,” he was making a general statement about the institution, but it was never more true than during Chief Justice Warren’s years. Unlike the Court, Lewis himself never stopped pursuing justice for those most in need. He saw the law as a means to check abuses by the powerful, protect the vulnerable, and hold the nation together. And he was never afraid to call out those who failed to live up to those ideals.

Lewis is best known for two largely celebratory books about constitutional law: Gideon’s Trumpet and Make No Law (1991). Both focused on landmark cases decided by the Warren Court. Gideon’s Trumpet recounted the tale of Gideon v. Wainwright (1963), which guaranteed the right to a lawyer paid for by the state to all indigent defendants in serious criminal trials. Make No Law featured New York Times Co. v. Sullivan (1964), which held that the First Amendment restricts the power of states to punish libel, particularly of public officials, and which provides the foundation for the modern First Amendment’s zealous protection of political speech.

Both books tell classic American success stories, accounts of how the law worked at its best. Clarence Earl Gideon was a penniless drifter convicted without a lawyer for breaking into a pool hall vending machine. He wrote a letter by hand to the Supreme Court explaining that he thought he was entitled to a lawyer. The Court treated it as a formal petition for review, granted it, and appointed Abe Fortas, one of the nation’s best appellate lawyers, to represent Gideon pro bono. Fortas was assisted by Abe Krash, another talented Washington lawyer, and a young Yale law student, John Hart Ely, who went on to become one of the nation’s leading constitutional scholars. The Court ruled for Gideon, and when he was retried with a lawyer, he was acquitted. The story, and Lewis’s telling of it, were so good that it was made into a movie, starring Henry Fonda as Gideon.

New York Times Co. v. Sullivan reversed a libel judgment against The New York Times for an advertisement taken out by a civil rights group, and signed by such persons as Eleanor Roosevelt and Jackie Robinson, that accused Southern police of violence against civil rights demonstrators. The Court’s decision recognized

a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

As the eminent First Amendment scholar Alexander Meiklejohn reportedly said at the time, it was “an occasion for dancing in the streets.”

In a glowing and characteristically erudite review of Make No Law in these pages, Ronald Dworkin, the renowned constitutional scholar who died earlier this year, argued that speech should be protected in part because citizens have a “moral responsibility…not only to form convictions of one’s own, but to express these to others, out of respect and concern for them, and out of a compelling desire that truth be known, justice served, and the good secured.”² Dworkin meant to be making a philosophical point, but no single sentence could better sum up Lewis’s own calling in life.

The juxtaposition of Lewis’s celebratory books and critical columns points toward perhaps a still deeper truth about his character. He was simultaneously a peerless advocate for the capacity of constitutional law to improve our lot and a keen, clear-eyed, and critical observer of how often law and those responsible for enforcing it fell short of the ideal. How, in the end, did he reconcile his optimism about what law could do with his lament for what it failed to do? John Keats famously wrote of the quality of “negative capability,” by which he meant the capacity “of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason.” Lewis’s attitude toward law, while it certainly—though never irritably—reached toward fact and reason, also maintained, almost in equipoise, these two competing views of the law: potentially glorious, in fact quite flawed.

Lewis wrote admiringly of Justice Louis Brandeis: “He believed that if the public were informed in a free society, good sense would prevail in time.” Lewis shared Brandeis’s belief to a degree, but at the same time harbored profound doubts. In his last article in these pages, appropriately enough, he returned to the subject of racial justice, the conflict that had consumed the nation, the Supreme Court, and Lewis himself during his time covering the Court and the Justice Department in the 1950s and 1960s. In a review of books by Harvard Law Professor Randall Kennedy and former New York Times journalist David Margolick, Lewis recounts a story he had recently read, of a black minor league baseball player who had been wrongfully arrested by a bigoted New York City police officer in 2005, even though those accused of the crime had been reported to be white. The charges against the ballplayer were eventually dismissed, but not before he’d lost his place on the team, prematurely ending his career. Lewis closes his review with simple but haunting questions:

Why is it that we cannot get over our deep racial animosities? Why is it that police are still abusing their power when they encounter black Americans? Not in Alabama fifty or one hundred years ago: in New York City today.³

In these closing paragraphs, one hears the characteristic voice of Anthony Lewis—simply and economically telling a story of injustice that, in his hands, seems to speak for itself, while asking the questions that so many of us are all too inclined to ignore. In the best tradition of journalism in the service of justice, Anthony Lewis never ceased telling the stories and asking the questions that, he fervently hoped, would inspire us to do the right thing. It is a credit to his craft and his moral vision that they so often did.