Peter Franck also recruited Marvin to represent Chavez in defense of criminal charges arising from his union organizing. The labor leader was charged with illegally used a bullhorn from a truck on the highway to address farm workers in the fields. Fay worked behind the scenes to research and draft the brief challenging the constitutionality of the anti-bullhorn ordinance.
At the same time, in Washington D.C., the civil rights cases Fay had begun work on in Mississippi in the summer of 1964 had just reached an ominous crossroads: the United States Supreme Court granted state officials a hearing on their request to reverse a partial victory Crockett’s legal team had obtained. Fay likely contributed one unusual argument before the Supreme Court. The high court still had one traditional Jewish seat among the nine old men. It was now occupied by Abe Fortas, her late friend Hammy’s ex-partner. To capture Fortas’s attention, the Peacock brief compared African-Americans’ plight in the United States to Jewish flight from bondage in ancient Egypt, using the same theme as Fay’s Seder for SNCC friends the prior spring.8
Fay flew to Washington, D.C. to hear the historic oral argument in the Peacock case the weekend of April 23–24, 1966. It was the best time of year to visit Washington, when the temperature was moderate and the cherry trees were in bloom. The imposing neoclassic temple across the street from the Capitol had only been completed in 1935. It was younger than Fay. Climbing the wide steps of its main entrance, visitors could read the words “EQUAL JUSTICE UNDER LAW” carved in the façade.
The immense courtroom was on the first floor, facing a main hall filled with statuary. High on its north and south walls were two forty-foot friezes depicting great lawmakers throughout history. One could easily pick out Moses with the Ten Commandments in Hebrew. A bronze railing separated public seating from the central rows reserved for the Supreme Court Bar, which now included Fay. On Monday, April 25, the Peacock team had an opportunity to observe other oral arguments. In the center sat Chief Justice Earl Warren himself. Fay easily recognized the spry William “Wild Bill” Douglas with his shock of white hair, whom her friend Bob Hamilton had clerked for a decade earlier. Fifty-year-old former athlete “Whizzer” White stood out as well. Fay also recognized Hugo Black, now eighty, whom she had spilled wine on at a reception at the University of Chicago when she was a law student.
On Tuesday morning, Fay could hardly contain her excitement. For the occasion, she had bought a stylish suit accessorized with an orchid, likely bestowed by a chivalrous New Orleanian colleague to adorn the only woman on the Peacock legal team. Another civil rights case was heard first. Fay watched Stanford Professor Tony Amsterdam argue for the integration of Atlanta restaurants. Fay left feeling giddy from the experience. She boarded the plane home still wearing her orchid. It had been fifteen years since Fay informed her good friend Pip, “I want to change things.” Her fervent desire seemed about to come true.
∎ 9 ∎
Unfulfilled
Sometimes blocked in, sometimes reaching out, one moment your life is a stone in you, and the next, a star.1
— RAINER MARIA RILKE, “SUNSET”
Just a day after the Peacock oral argument, without explanation, a bare majority of the Supreme Court dismissed from its docket another pending civil rights case. The case permitted punitive damages against the NAACP. The four dissenting justices warned that the high court’s action paved the way for “crushing verdicts that may stifle organized dissent.”2 Still, Fay retained faith in the judiciary to advance civil rights.
The Vietnam Day Committee had just held another major peace rally in April. This time arrested demonstrators were advised to plead guilty to most of the minor offenses, pay fines and receive no jail time. Charles Garry represented them with Fay’s assistance on one key issue: challenging a city ordinance against the use of a sound truck without advance permission from the local chief of police. Fay had handy her First Amendment research for Cesar Chavez’s case. Unlike in Tulare County, where Alex Hoffmann had warned Fay and Marvin that the local municipal court judge was “a son of a bitch,” the Berkeley judge readily agreed that the Berkeley ordinance was invalid. At least one anti-bullhorn ordinance was now history.
There was no shortage of potential cases for the Council for Justice. They represented grape boycotters arrested for leafletting cars in a Safeway parking lot and for protest “shop-ins” where they abandoned full baskets in the grocery store’s aisles. Francis Heisler handled tax work for pacifist clients like Joan Baez, who sought refunds based on conscientious objection to the Vietnam War. Assisting Heisler, Fay added to the celebrities among her growing list of contacts. Meanwhile, as legal costs mounted, the CFJ Executive Committee orchestrated a series of fund-raisers, including a brunch Fay and Marvin held at their home for Cesar Chavez.
On June 20, 1966, the Supreme Court issued several rulings from its spring session, including Peacock. By a five-to-four vote, the Supreme Court ordered the Peacock case sent back to the Mississippi state courts — ensuring years of delay before federal courts ever took a look at the claimed wholesale violations of the defendants’ civil rights. The dissent penned by Justice Douglas captured the frustration of Fay and her co-counsel at this defeat: “[T]o deny relief [is] … to aggravate a wrong.”3 Activists had already turned to Congress to provide more relief through the hotly contested Civil Rights Act of 1965. The direction racial confrontations would take remained to be seen.
One major court battle lost, Fay soldiered on. Back in Tulare County, Cesar Chavez still faced potential conviction for the use of his bullhorn in recruiting union members. When the local judge denied relief in the summer of 1966, Marvin appealed, relying on Fay to write the brief. The following year, Marvin and Peter Franck would fly down to Fresno in Franck’s Cessna to handle oral argument. The pair later received all the public credit for Chavez’s ultimate victory. Still, Fay could take private satisfaction in her key role in persuading the appellate court to repudiate its own prior position: “The Tulare ordinance presents a great opportunity for discrimination, political preference and the type of censorship that is repugnant to the very concept upon which our free form of government is founded.”4
This victory was a confidence builder for Fay. By the time the opinion issued, however, the Council for Justice had long ceased to exist. Back in the summer of 1966, it had become clear that the group was but a small band-aid for Cesar Chavez during a time of transition to in-house lawyers with help from a new state legal assistance program. By October of 1966, the CFJ collapsed under mounting debt and closed its doors. In December, Alex Hoffmann turned over his remaining matters in Delano to new counsel and headed home. Ancient Spartan warriors went off to war directed to come back with their shields or on them. Alex Hoffmann, suffering from a slipped disc, came back flat on his back.
* * *
As the CFJ was on its last legs, Fay was preoccupied by her parents’ decision to move permanently overseas. Still conservative in his politics, Sam disliked Fay’s growing recognition in the Berkeley community as a proponent of Leftist causes. When meeting someone new, he bristled at being identified as “Fay Stender’s father,” emphatically telling his wife and close friends that was not why he had come into this world. Sam decided to retire young. He and Ruby had traveled abroad often