[The second of the two essays in the exam for my legal history course is biographical. (If you'd like to read prior ones, start here.) This year, Carol Weiss King seemed like the obvious choice. DRE]
Carol Weiss King (CWK) was born on August 24, 1895, the youngest child of a well-to-do Jewish lawyer and his wealthy wife in New York City. Her father, Samuel William Weiss (b. 1852) was the son of William Weiss (b. 1819), who had been born in Austria in 1819, emigrated to the United States in 1848, and become a grocer in a small town in northeastern Pennsylvania. Two of CWK’s brothers graduated from the Columbia Law School. One, Louis, was Editor in Chief of the Columbia Law Review and worked at a corporate “law factory” before joining a successor to his father’s law firm. After World War II, he reorganized it as the firm now known as Paul, Weiss.
CWK’s father died in 1910, but his family had sufficient wealth to support a comfortable lifestyle. Carol attended Barnard College, Columbia’s “sister school,” graduating in 1916. She volunteered with a nonprofit that drafted progressive labor legislation and, after the United States’ entry into World War I, with a precursor to the American Civil Liberties Union that defended draft resistors and other antiwar radicals. Because the Columbia Law School, like Harvard and Yale, did not yet admit women, she enrolled in the NYU Law School in the fall of 1917, when it was a night school largely attended by immigrants and their children.
That same fall, she married Gordon King, a tall, slim, fashionably attired Harvard College graduate who traced his lineage back to the American Revolution. “Seldom had more opposites mated,” an acquaintance said. Gordon lunched at the Harvard Club; Carol joined picket lines. Gordon dressed in black tie and dinner jacket every evening; Carol only experimented with short, “flapper” skirts before settling on being “inconspicuously badly dressed.” Journalists described her as “a short, stocky woman of great energy,” with thick, horn-rimmed glasses and “unruly dark hair.”
The couple lived in a row house in Manhattan that Carol’s mother bought for them as Gordon pursued a somewhat indifferent career as a writer. The Weiss family’s housekeeper also lived with and worked for them. Gordon remained a brilliant conversationalist, but, as his brother recalled, he grew restless, depressed, and embarrassed at not earning his keep. To lift his spirits, he traveled to France without Carol; CWK’s biographer, who personally knew her subject, hinted that he had affairs. “Carol learned to keep her life with Gordon in a separate compartment,” the biographer wrote. If something he did hurt her, “she put it into that compartment and then moved back into other parts of her life.” Presumably the couple practiced birth control, as a policeman once admonished them for a public display of affection on a park bench, but their only child, a son, was not born until New Year’s Eve, 1925. The housekeeper and Gordon looked after him during the day. The child was spending the summer with his Weiss relations in Maine when Gordon died suddenly in July 1930. CWK never remarried, and she gave her honorific as “Mrs.” when testifying before Congress.
CWK graduated from NYU Law in 1920 and, thanks to her brother, got the temporary clerkship she needed to satisfy a requirement of the New York bar by working for Max Lowenthal. Lowenthal was a Harvard Law graduate in Felix Frankfurter’s orbit who became independently wealthy in the corporate reorganization practice. Lowenthal was close to the great progressive federal trial judge Julian Mack, and he appointed her receiver in several bankruptcies of small businesses.
But CWK had no desire to develop a commercial practice. She had always been something of a rebel: in August 1917, she telegrammed Gordon, “Hurray for the Russian Revolution. I will marry you.” The Palmer Raids of 1919-20, a roundup and deportation of leftist aliens directed by the Department of Justice, radicalized her. She asked three lawyers noted for their civil liberties cases and loosely associated in an expense-sharing arrangement, to hire her. They declined. “We’re not making a living for ourselves, so we couldn’t possibly afford to hire you,” one explained, but he suggested that she rent a room in their suite and open her own office. CWK did and took on the clients that even her suitemates neglected, the foreign born facing deportation. Immigration, her biographer noted, was an underdeveloped field of law, waiting for “a young ambitious lawyer with a creative turn of mind and a need to be needed.”
At first, CWK appeared only in deportation hearings presided over by immigration officials on Ellis Island, with occasional detours to federal district court to file writs of habeas corpus. Then a client came to her with a civil case to be tried before a jury. She prepared painstakingly but lost. Devastated, she did not return to her office for a week. For years thereafter, she limited her role on nonimmigration matters to preparing cases, writing briefs, and plotting legal strategy. She left courtroom argument to others, whom she thought would better serve her clients.
CWK took over from one of her suitemates the editing of a newsletter to which like-minded lawyers contributed articles on their unpublished cases and developments in immigration, labor, and civil liberties law. From 1924 through 1945, the newsletter helped lawyers on the left learn of each other and their activities.
Some of the best-known cases were brought by the International Labor Defense (ILD), the legal arm of the Communist Party (CP). These included two that reached the Supreme Court: Powell v. Alabama (1932), the first appeal involving the rape convictions of a group of young African American men known as the Scottsboro Boys; and Herndon v. Lowry (1937), in which Angelo Herndon, a Black CP organizer, was sentenced to 18 to 20 years on a chain gang for distributing Communist pamphlets in Atlanta. Asked at the last minute to prepare Herndon’s appeal to the state supreme court, CWK learned that an ILD lawyer had taken the only copy of the record with him on a vacation to Atlantic City. She immediately found someone to drive her there (as she had never learned to drive), checked the “Jewish” hotels until she found where the lawyer was staying, returned to Manhattan, wrote the brief, and mailed it off by 4:30 the next morning.
For the ILD, as well, she testified in 1935 against a bill to deport Fascists and Communists, that was intended, as a sponsor put it, to “develop the homogeneity” and save the jobs “of our people.” CWK protested that Americans were part of “a race of aliens,” because the ancestors of all of them had come from abroad. She urged Congress not to “attempt to solve the economic problem by attacking the aliens,” and she warned that the bill was “the opening wedge” of an attack on American citizens.
In 1937, as a representative of another CP affiliate, the American Committee for the Protection of the Foreign Born (ACPFB), CWK testified against a bill that would forbid the naturalization of any alien who “believes in any form of government other than that of the United States.” For the ACPFB, as well, in 1938 she successfully defended Harry Bridges, the leader of the West Coast longshoremen union, in a deportation proceeding over his alleged membership in the CP. Ten years later, Attorney General Tom Clark would add the ACPFB to his list of subversive organizations.
During World War II, the deportation of Communists largely halted, because the Atlantic Ocean was unsafe and the Soviet Union was an American ally, but it started up again with the Cold War. The passage of the Administrative Procedure Act (APA) raised the possibility of a dramatic overhaul of deportation hearings. At the Immigration and Naturalization Service (INS), located in the Department of Justice since 1940, an official might be a “presiding inspector,” overseeing a hearing, one day and an “examining inspector,” prosecuting the government’s case, the next. The APA required that an agency organize its trial examiners into a separate division and protect their tenure and salaries. Attorney General Clark contended that the APA did not apply to deportation proceedings, however, a position CWK identified as part of his pattern of “illegal, improper and inhuman conduct . . . in dealing with the problems of the foreign born” when she opposed Clark’s nomination to the U.S. Supreme Court in 1949. In February 1950, the Court, in a case brought by other lawyers on behalf of a Chinese seafarer who had overstayed his shore leave, ruled that the APA did apply to deportation hearings and required the INS to segregate “the duties of prosecutor and judge.” CWK exulted: 14,000 hearings would have to be retried, and pending deportations were suspended. Seven months later, however, Congress reversed the decision with a rider to an appropriations bill, and the old practice continued.
CWK helped found the National Lawyers Guild (NLG) in 1936, testified before Congress on behalf of its immigration committee, and remained a member long after prominent liberals, including Thurman Arnold, Jerome Frank, and Robert H. Jackson, resigned. She always denied being a member of the CP, and her brother-in-law believed her: “For whatever she may have thought of the economic ideals of the Marxists, one can say with certainty that she hated governmental tyranny wherever it occurred, whether in Russia or any other country, including her own.” Even so, a lawyer who was a CP member claimed that she “knew everything that went on in the Party because people totally trusted her and needed her.”
In February 1951, the Saturday Evening Post profiled CWK under the headline, “The Communist’s Dearest Friend.” Because the CP was staffed by hundreds of the foreign born who entered the country illegally or could never become citizens because of their Communist activities, it needed a network of lawyers to keep it in business, the profile claimed. Not only did CWK have “a major hand” in setting up that network; she was “the core around which it revolves.” The stigma resulting from this and similar mentions in the press took an emotional toll. When a liberal law professor who had worked with her on the Herndon case ran into her in a dingy cafeteria, she greeted him with the question, “Well, have you become a bastard, too?”
In the summer of 1951, CWK told a judge she was too ill to serve as court-appointed counsel in a criminal prosecution of CP leaders. In fact, after years of heavy smoking, she was dying of cancer. Hospitalized for ten days in October 1951, she argued before the U.S. Supreme Court on November 26 in a dispute over the eligibility for bail of aliens awaiting deportation. She seemed exhausted in what was her first appearance before the Court; even her friends thought she was shrill and dwelt too much on her client rather than the law. Concerned that the walk from the Court to Union Station might be too much for her, the INS lawyers, who considered one of the nation’s great experts on immigration law, gave her a ride. In December she twice underwent surgery. On January 22, 1952, she died. She never knew the outcome of her lone Supreme Court case, a 5-4 defeat for her side.
The New York Times numbered her immigration cases in the thousands. “Sailors from Pakistan, longshoremen from Yugoslavia, day laborers from Italy, students from Africa, waiters, bakers, furriers” came to her, said her brother-in-law. The red-baiting columnist Westbrook Pegler sneered that she was “as red as Stalin himself,” but the progressive journalist I. F. Stone was more thoughtful: “An ailing woman, she fought almost hopeless battles in the musty obscurity of law courts with lovably cynical good cheer and incredible stamina.” “She did what she wanted to do,” her brother-in-law concluded. “She never lowered her colors. She was true to herself.”
--Dan Ernst. Sources after the jump.
