The Color of Law:
Ernie Goodman, Detroit, and the Struggle for Labor and Civil Rights
by Steve Babson, Dave Riddle and David Elsila
Wayne State University Press, 2010, 558 pages, $24.95 cloth.
LAST YEAR, 2011, marked the 50th anniversary of the Attica uprising, those four tense days of seizures and demands, negotiations and state violence that stunned the nation in September 1971. The rebellion involved over a thousand inmates who took control of the New York State facility and held 33 guards hostage in protest over inhumane living conditions and racial discrimination in the overcrowded prison.
The conflict ended in bloodshed when Governor Nelson Rockefeller authorized the state police to use deadly force to quell the situation. In the assault, 29 inmates and 10 hostages were killed, scores were injured and the movement for prisoners’#8221; rights was gravely wounded.
The decision to begin this biography of Detroit-based attorney Ernest (“Ernie”) Goodman with the cold horror of the state’#8221;s assault on Attica is strategically wise, and not only due to the emotional appeal of the anniversary. The Attica uprising and subsequent trials stand near the end of Goodman’#8221;s remarkably long career as a radical attorney and activist lawyer — a career book-ended on one side by the once unpopular defense of workers who dared to defy the prerogatives of industrialists in the 1930s, and on the other side by the equally unpopular defense of prisoners who dared to oppose the authority of the carceral state in the 1970s.
The defense of the Attica inmates indicted on charges of murder and kidnapping constituted one of Goodman’#8221;s last and perhaps his most visible trials. In 1975, one year shy of his 70th birthday, he traveled to New York and took the lead in the defense of Bernard Stroble (known as “Shango”) and secured an acquittal. It was, for Goodman, a honeyed moment of victory.
Yet Attica was a bitter defeat, at least to the extent that it hastened the beginning of the end of the movement to extend of the rights of the marginal, the powerless and the oppressed. By the early 1970s the civil rights momentum of the Warren court was grinding to a halt, and the national political mood was lurching toward the reactionary pole of American political culture.
The sensational news coverage of the Attica uprising was punctuated by gothic stories of (predominately Black) inmates gone wild, callously slitting the throats of the (all white) prison guards who had been held hostage. That these reports were later proven false did not much matter. Public opinion, which had initially been fairly sympathetic toward the inmates, turned against them.
Enough “evidence” was subsequently collected to charge 62 inmates with 1289 crimes in 42 separate felony indictments. The message was clear: the inmates themselves were culpable. It would take years before a real investigation into the deaths of unarmed inmates was completed.
Ernie Goodman, along with New Left lawyer William Kunstler and members of the National Lawyers Guild, mounted their defense as public hostility against the so-called Attica Brothers solidified. Goodman was undaunted. In the defense of Shango he also saw the defense of southern civil rights workers in Mississippi, Black soldiers accused of crimes during War World II, unionists and workers, immigrants facing deportation, and Communists and political dissidents of all stripes.
Goodman’#8221;s career, admirably chronicled in The Color of Law, was deeply intertwined as the subtitle denotes with “The Struggle for Labor Rights and Civil Rights.”
The book and its subject’#8221;s life is Detroit-centered, with moments of national resonance exemplified in the Attica trials in the 1970s and Smith Act trials in the 1950s. We encounter in these pages a version of American history told from the perspective of those involved in the city’#8221;s radical legal culture — American history as made and observed by Goodman.
The authors of this compelling biography had access to a trove of Ernie Goodman’#8221;s own writings and observations, and are able at nearly every turn to incorporate his own words and reflections into the narrative.
Some of these writings are contemporaneous with evolving circumstances, such as professional letters and a host of articles in a variety of publications. Others are more personal and stem from the autobiography over which he labored but never published, and the hours and hours of tape recordings of thoughts and memories he assembled in the process.
No one would mistake The Color of Law for a critical biography of its subject. The authors speak with and for Goodman in a way that almost seems to preclude criticism. In what may be a possible downside to having so much writing from one’#8221;s biographical subject, Goodman’#8221;s words tend to be rendered as gospel.
This material nonetheless provides rich insights into Goodman, the man, and Goodman, the lawyer. Those readers most interested in the private Goodman, the man, will be slightly disappointed — especially as we move beyond the first couple of chapters on his family and early life. The public Goodman, the lawyer, holds center stage. This is hardly surprising since it is the law and lawyering that provides the main thoroughfare through this thick volume.
The Color of Law chiefly highlights the double-edged nature of the law itself, and the questions that issue from its ambiguous status. Does the law serve only the interest of the rich and powerful? Is it merely a tool of the state? Can laws be applied fairly; for that matter what do we really mean by fair? And can the law in the proper circumstances be transformed into a weapon of liberation?
These are not new questions. Recall the memorable lines from Shakespeare’#8221;s Henry the Sixth. “The first thing we do, let’#8221;s kill all the lawyers,” Dick the butcher says to the demagogic and traitorous Cade, who claims to speak on behalf of the common people and their desire for justice and equality.
“I thank you, good people,” proclaims Cade to an assembled throng, “there shall be no money; all shall eat and drink on my score, and I will apparel them in one livery, that they may agree like brothers, and worship me their lord.”
Both men seem to agree that lawyers serve the interest of the rich and often act in ways that persecute the less fortunate. But whereas Dick’#8221;s idea of murdering attorneys is a utopian and hopeful anecdote to the corrupt and abusive use of the law, Cade’#8221;s is nothing more than a ploy to get rid of any impediments to his longed for autocratic rule.
This exchange reflects the degree to which the law can be used as a tool of oppression that only serves to shore up a repressive status quo. At the same time, Cade’#8221;s cynicism reminds us that the first thing any tyrant must do is to abrogate the law, destroy the judiciary, silence the lawyers.
While Goodman would have been sympathetic to Dick’#8221;s motivations (and appropriately skeptical of his naiveté), he would have immediately recognized the dangers that lay behind Cade’#8221;s gloriously empty promises. Both sides of the legal razor’#8221;s edge appear frequently in the narrative of Goodman’#8221;s life, as he and his fellow attorneys struggled to find ways to sharpen those tools able to defend the rights of the marginal while blunting the law’#8221;s more repressive application.
The legal defense of union organizing tactics such as leafleting outside factory gates and occupying factory floors during sit-down strikes are good cases in point. Both tactics called into question the prerogatives of private property, and forced courts to consider where property rights end and where constitutionally protected political speech and the rights to assemble begin.
In telling the story of Ernest Goodman, co-authors Steve Babson, Dave Riddle and David Elsila also give us a powerful narrative of the evolution of a progressive strain within American law in the 20th century, an evolution framed in many ways by the battles over industrial unionism on the one end and Attica on the other.
The biographers are equally and commendably attentive to the ways that the law can be deployed in the context of social movements. Indeed it was the law, working in concert with movements around unions, civil rights organizations and large-scale political formations such as the Communist Party that extended rights and legal protections in new and novel ways.
Goodman’#8221;s own evolution toward the new brand of legal realism developing in the first few decades of the 20th century was a slow process. A product of Detroit’#8221;s insular Jewish ghetto, Goodman aspired to assimilate into mainstream American culture, using the law as his ticket to white-collar inclusion.
The Color of Law offers a fascinating portrait of growing dissatisfaction with the state of affairs within the legal profession — a series of frustrations that began during Goodman’#8221;s studies at the Detroit College of Law and blossomed as the city sank further and further into the doldrums of the Great Depression. His eventual transformation from a lawyer involved in collection and repossession cases on behalf of small retail stores, struggling mightily to find purchase to scale the wall of middle class respectability and success, to a fully radicalized advocate for dramatically unpopular causes, is a fascinating story in its own right.
There were two main legal organizations that influenced and propelled Goodman’#8221;s work. The first was the National Lawyers Guild, a national group of liberal-to-left (and mostly pro-communist) attorneys. “Through the Guild,” Goodman later recalled, “I became acquainted with lawyers across the country who held social and political views similar to my own.”
Founded in 1937, the NLG was a legal fraternity for what Babson, Riddle and Elsila dub as “a new generation of lawyers opposed to the staid conservatism of the American Bar Association.” (79) The ABA rejected most New Deal reforms as legally unconstitutional and politically dangerous.
The other primary organizational force in Goodman’#8221;s career was his Detroit law firm, itself actually two successive firms: one incorporated by Maurice Sugar, which Goodman joined in 1938; the other founded by Goodman in 1950. While the former was a firm in the traditional sense of one man at the top — Sugar — very much in charge, the latter was a full-fledged partnership of co-governance and shared liability.
Goodman, Crockettt, Eden and Robb was also the first integrated firm in the state of Michigan, and at least one of the earliest — if not the first — in the nation. The new entity incorporated some of the old Sugar firm veterans, including Mort Eden, Dean Robb, and African-American attorney George Crockettt on a new basis of equal, and interracial, partnership.
While the firm kept its radical activist edge, it also developed a specialty in tort law and workers’#8221; compensation. In many ways this emphasis proved as important, though less flashy, as the “political law” that Goodman and Crockett continued to champion. When successful, it improved the lives of clients, and paid the bills.
“In the early 1950s,” Goodman’#8221;s biographers note, “it was no easy matter for individuals to find recompense in the courts for the harm done by errant corporations, culpable doctors, and negligent drivers. Conservative judges often sympathized with the institutions being sued and they would frequently dismiss the case as groundless rather than bring it before a jury.” (189).
It took considerable effort to overcome this reluctance to hold companies and hospitals liable to help the maimed and disabled to seek justice. Workers’#8221; compensation was a logical extension of workers’#8221; rights. It also coalesced with the rise of the consumers’#8221; rights movement, which by the late 1960s had successfully shifted the responsibility for product safety — especially (thanks to Ralph Nader and the “Nader’#8221;s Raiders”) — from the consumer to the manufacturer.
These tort law cases not only subsidized the more overtly political work of the firm, particularly as Goodman, Crockettt, Eden and Robb took on more and more cases of individuals accused of Communist Party affiliations during the Red Scare. Tort cases, done on a contingency fee basis, were also “political” cases in their own vein.
As the authors note, inasmuch as it is always costly to mount a court suit, such cases democratized personal injury law by making it possible for the poor to sue the rich. The lawyer assumes the financial burden of the suit. He or she earns nothing if the case is unsuccessful, but receives a percentage of the settlement for all cases won.
One person’#8221;s ambulance chasing, corporate-raiding, “distorter” of American law, is another person’#8221;s champion of the oppressed. Not for nothing has “tort reform” become the centerpiece of the conservative movement’#8221;s defense of free enterprise and limited government.
The need to make a living, and to do well by doing good, runs throughout The Color of Law. The authors should be commended for their attention to the practical aspects of Goodman’#8221;s life as he worked to provide for his wife Freda (who also made crucial contributions to the family finances by selling antiques out of the couple’#8221;s Warrington Drive home) and for their children.
Maintaining an independent law practice with its own revenue stream was critical for insulating Goodman and his partners from the ill effects of being branded as radicals. It was essential to subsidize the defense of other radicals and organizations that came under attack, especially during the Red Scare and in the context of the postwar southern civil rights movement.
As Goodman, Crockett, Eden and Robb fought along one side of the legal razor’#8221;s edge, the government fought along the other. Forcing radical attorneys to defend radical organizations and individuals proved an astute strategy for dramatically weakening Detroit’#8221;s and the nation’#8221;s left culture.
Radicals were forced to shift already scarce resources away from defending the rights of workers, minorities and immigrants and into self-defense. This was especially the case for those within the orbit of the Communist Party (CP).
When the House Committee on Un-American Activities (HUAC) came to Detroit in 1952, Ernie Goodman and George Crockett provided legal representation to 26 of the 35 subpoenaed left-wing labor and political activists. NLG attorneys represented the others.
The HUAC hearings and the defense trials associated with the Michigan Six and the Smith Act indictments occupy much of the book’#8221;s middle portion. The narrative doesn’#8221;t break much new ground here, but the tale is particularly compelling around questions of evidence and issues of defense strategy. The authors remind us of just how far the government was willing to go to abrogate the rules of evidence.
In Chapter Eight (“Conspiracy of Belief”) we are introduced to William G. Hundley, the prosecuting attorney for the U.S. Department of Justice, who is shocked to discover the vast absence of evidence against the six CP members put on trial for advocating the violent overthrow of the U.S. government. The problem was that government agents, despite all their efforts, could find little direct proof of party members engaging in seditious conspiracy or the advocacy of force and violence.
On one occasion, when Hundley thought he had finally found a smoking gun through an overt reference advocating revolution, the person quoted at a political meeting turned out to be a government plant. What Hundley possessed was largely circumstantial, with the “real” proof of sedition inherent in mere membership in a legal political organization that was supposedly protected by First Amendment rights.
Due to the nature of the “evidence,” Goodman wanted to pursue a strategy that essentially put the First Amendment on trial. While initially in agreement on this score, some of his clients among the Michigan Six pursued a “political defense” instead. They insisted that, since fascism had already arrived on American shores, they could not possibly receive a fair trial. Thus they were accordingly obliged to use the stage of the courtroom and the drama of the trial to expose this fact to a wider public.
Goodman was dubious about the claim that fascism had triumphed, but certain that the best defense was provided by the Constitution. Goodman believed that discriminatory practices and unjust application of the law ran counter to the Constitution. His clients, however, regarded this as a bourgeois liberal conception at best. For them, the Constitution was tainted from the beginning, not only complicit with but supportive of the atrocities of slavery and the genocide against Native Americans.
This was in much the same debate that pitted anti-slavery Constitutionalists such as Frederick Douglass against the “purist” position of William Lloyd Garrison. (Garrison famously denounced the Constitution as “a Covenant with Death, an Agreement with Hell” before setting it on fire.)
In the end, three of the Michigan Six remained with Goodman; the other three defended themselves. All were convicted. The trial, like all the Smith Act trials, was probably unwinnable as the claims of national security trumped, time and again, the civil liberties of those American citizens branded as dangerous Reds.
How “Red” was Goodman? A number of previous biographies of Detroit’#8221;s radical activists have encountered problems when trying to answer this question, particularly when dealing with figures whose level of affiliation with the CP and its orbit are less than clear.
Babson, Riddle and Elsila seem to go out of their way to depict Goodman as left enough without being too left. They do not dig too deeply into Goodman’#8221;s relationship to the Communist Party beyond ascribing to him a sort of safe and distant “fellow traveler” status. Goodman never abandoned his “socialist faith,” they write, “though in time he discarded his once vigorous admiration for the Soviet Union and settled on a more ecumenical and democratic vision of what an alternative world might look like.” (5)
The authors depict Goodman’#8221;s motives, when defending Communists in the Smith Act trials or individuals such as UAW activist and State Senator Stanley Nowak, as a matter of friendship (as with Nowak) or due to his belief in the Bill of Rights, fairness and equality more than a broader ideological commitment to revolutionary justice.
In truth, fixing Communist identities on figures like Goodman can be as messy as trying to hold a glob of jelly between one’#8221;s thumb and forefinger. Moreover, Goodman lived long enough and maintained a political and legal career consistent enough to transcend the era of the CP’#8221;s heyday (1926-’#8221;59) and render this question mostly mute.
One could argue that Goodman merely followed the social movement, as his focus shifted from defense of political dissidents in the 1950s to southern civil rights workers in the 1960s to prisoners in the 1970s. This shift from Red Scare to civil rights, and from Detroit to the U.S. south, was neither easy nor seamless, as the older Left increasingly encountered the newer one.
The growth of an intergenerational coalition among older and seasoned lawyers such as Goodman and Crockett with younger attorneys such as Goodman’#8221;s son Dick informs the second half of the biography. Here the Detroit chapters of the NLG as well as the national organization take center stage, and Goodman embarks on yet another set of debates about the law as tactic and tool within the context of a movement.
Is the Constitution irredeemably racist? How can a legal defense best be mounted in the face of the racism of southern (and northern) courts? Whose purposes does the law ultimately serve, particularly when claims of individual rights are pitted against claims of national security?
These issues surely arose in the case in the Attica trial of Shango, as Goodman once again encountered and fought against manufactured evidence. “In a real sense,” he wrote in one of the numerous motions to dismiss the case, “the ‘unclean hands’#8221; of the government in these prosecutions covers the blood on the hands of the assault force.” (429)
The sheer repetition of these underlying concerns about law and justice, state power, evidence and the rights of the accused gives this book depth and appeal. This perspective reinforces the important connections among attorneys such as Goodman, Crockett, Eden and Robb, national organizations such as the NLG, and social movements. Individuals on the ground within communities fought the battles that generated legal cases which, at key moments, helped transform American law and American society.
We are now 40 years past the Attica uprising; it is not really over. Subsequent lawsuits and class action suits have kept the events of September 1971 alive for decades. Most notably, inmates and families of inmates who had been killed in the violent retaking of the prison sued the State of New York for civil rights violations by law enforcement officials involved in the assault.
After 27 years in courts, New York State agreed in 2000 to pay $12 million to settle the case — $8 million for the inmates and $4 million for the attorneys who logged three decades of pro bono work. At the same time, the State refused to admit to any wrongdoing even in the face of evidence to the contrary.
Moreover, we as a nation continue to live with Attica’#8221;s legacy in the Rockefeller drug laws, harsh sentencing guidelines, the virtual eradication of prison libraries, the disappearance of educational and real rehabilitation programs, and a prison population that has increased some 705% since 1970.
Movements against mass incarceration and the “prison (post)industrial complex” have been bubbling up in communities across the nation. And these movements will no doubt need committed lawyers. In these still dark times we could once again use an Ernie Goodman, who was eulogized by U. S. federal judge Damon Keith as “a voice for the hopeless, the voiceless and the downtrodden.” (7)
March/April 2012, ATC 157