The Art of Justice: Revisiting Landmark Supreme Court Cases Through Expressionist Paintings

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BOOK REVIEW

Xavier Cortada has created a series of paintings illustrating the main cases of the Supreme Court. From left to right: his paintings representing Gideon vs. Wainwright, Proffitt v. Florida, and Bush vs. Gore.

Tired of reading law journal articles filled with jargon with hundreds of footnotes? The perfect antidote is Painting Constitutional Law: Images of Constitutional Rights by Xavier Cortada, edited by Professors MC Mirow and Howard Wasserman. The book combines art and academic analysis in a refreshing and creative take on great Supreme Court cases – with an added touch of “Florida quirk” to keep things interesting.

Artist and lawyer Xavier Cortada has created 10 striking paintings, each depicting an important Supreme Court case from Florida. Cortada is a longtime Floridian who received his law degree from the University of Miami and is now a professor in the Department of Art and Art History at the University of Miami; his work combines his legal education with his artistic vision of how each Supreme Court ruling has shaped the nation. The series of paintings were first displayed in the Rotunda of the Florida Supreme Court before being moved to a permanent display at Florida International University.

In Painting Constitutional Law, Mirow and Wasserman have assembled a group of prominent constitutional scholars to respond to the paintings and the cases they represent. As Wasserman explains, the editors gave these constitutional experts “the freedom to appropriate the paintings and the essays.” The result is a series of diverse essays united by their discussions of Cortada’s works of art, legal iconography, and constitutional law.

One of the most powerful images is that of Clarence Earl Gideon, who was charged with burglary in 1961 and was forced to represent himself at trial because he was too poor to afford a lawyer. After being convicted, he hand-wrote a request for a certiorari writ in pencil from his jail cell. In a decisive decision in Gideon vs. Wainwright, the court ultimately ruled in favor of Gideon, ruling that the Sixth Amendment guarantees a right to a government-funded lawyer for indigent defendants. Cortada depicts Gideon sitting at the edge of his cell, barefoot and dressed in an orange prison jumpsuit, writing on what appears to be a roll of toilet paper.

As Professors Paul Marcus and Mary Sue Backus explain in their accompanying essay, Cortada’s grim image reminds us that Gideon’s petition was “the longest of the long scenes.” It was both an “act of desperation” and an “act of faith in the constitution of the United States.” This faith was not out of place. In Gideon, the court recognized for the first time the “obvious truth” that an accused cannot get a fair trial without a lawyer. Gideon not only won the right to counsel for all indigent defendants sentenced to prison; he also gained his own freedom. Five months after the Supreme Court ruling, he got a second trial. This time, represented by a lawyer, he was acquitted.

Marcus and Backus spend much of the essay discussing the issues that followed the court’s decision in Gideon. Do indigent defendants deserve representation when they do not face a prison sentence but the important collateral consequences of a conviction, such as loss of employment, professional licenses, public housing or (for non-nationals) deportation? And what happens when a defense lawyer does not perform well? As the authors explain, case law so far suggests that the level of “efficiency” required to meet the Constitution is shockingly low. Cortada’s painting reminds us that Gideon’s petition started a constitutional debate that is still ongoing.

One of Cortada’s most shocking images concerns the 1976 court ruling in Proffitt v. Florida, a complementary case to Gregg v. Georgia, in which the court reinstated the death penalty after a de facto four-year moratorium. Cortada portrays a man strapped to an electric chair, his face contorted in pain. Roman numerals line the walls on one side of the chair.

Professor Corinna Barrett Lain’s accompanying essay explains that the paint is particularly powerful because Florida has had well-documented problems with its electric chair. Dubbed “Ol ‘Sparky,” the chair caused a number of botched executions in the 1990s. The numbers on either side of the chair are also significant. Proffitt upheld Florida law requiring courts to assess a list of aggravating and mitigating factors before imposing the death penalty. In Proffitt and its related cases, the court concluded that these factors provided rational standards for the death penalty, satisfying the Eighth Amendment prohibition against “cruel and unusual” punishment.

Lain, like Cortada, criticizes the decision. She writes that studies have shown the futility of such formulas, leading many jurors to mistakenly conclude that they are obligatory by law to impose the death penalty in cases where the aggravating factors outweigh the mitigating factors, rather than simply allowed to do so. She further criticizes some of the factors in the death penalty laws of Florida and other states as irrational and inconsistent. And she fears that balancing these factors will allow jurors to distance themselves from the consequences of the decision. Such formulas allow us to “numb ourselves with the numbers,” she says.

The dissertations of Dean Erwin Chemerinsky Bush vs. Gore, surely the most controversial of the 10 cases described. Cortada’s painting is dominated by an hourglass, with an urn for Bush on one side and Gore on the other. The background is an impressionistic swirl of ballots and chads. Cortada’s image suggests time is running out.

Chemerinsky’s essay, “Haste Makes Mistakes,” focuses on the role of time pressure in the court’s decision. As he recalls, certiorari’s brief motion was filed on a Saturday, the case was argued on Monday and the court delivered its decision on Tuesday evening. At the time, the court justified its extraordinary decision to take and decide the case at lightning speed as essential to avert an impending constitutional crisis.

Chemerinsky argues that the decision of Bush vs. Gore violated the principles of federalism, among other constitutional doctrines and standards. He attributes these errors to the court’s mistaken belief that he must act immediately. Chemerinsky guides the reader through the sequence of events that would have followed if the tribunal not intervened and concluded that the system would have functioned as intended without the intervention of the court. (And he concludes that Bush probably would have been named the winner anyway.)

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As Mirow explains in his introductory essay, Painting Constitutional law “Seeks to disrupt established perspectives on constitutional law by asking highly respected academics to view their fields through the vivid images of Cortada,” producing a “new and expansive exploration” of American law and life. Readers looking for a new approach to constitutional principles should start here.


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