CALL ME PHAEDRA. Lise Pearlman
hundreds of electronic bugs in traditional criminal investigations totally unrelated to national security.
None of this was public when Congress grilled Dean Levi about the jury project or when President Eisenhower followed the hearing up with a call for a ban on bugging juries in his next State of the Union speech. Congress responded by adopting a new federal law, outlawing the secret recording of jury deliberations. The media soon moved on to other concerns.
Meanwhile, Fay turned her focus to an impetuous personal project. She talked her friend Alice Wirth Gray into asking her influential mother to help Fay and Marvin adopt an eleven-year-old homeless Wisconsin Native American girl. It would be an uphill battle given that the couple were only 23 and 24 and married for less than two years. A very dubious Mrs. Wirth then wrote letters to help facilitate the inter-racial adoption only to learn a few weeks later that Fay decided it was all a mistake and no longer wished to pursue the adoption. Fay was oblivious to what she had put Mrs. Wirth through to support the ill-conceived adoption efforts. (Over the course of Fay’s career many people who did her favors felt similarly used and unappreciated.)
The next semester Fay and Marvin house sat for Professor Sharp while he was on sabbatical. Entertaining friends in his posh penthouse overlooking Lake Michigan, Fay enjoyed the life style of the upper middle class. When on an emotional high, as she was at the time, Fay had the capacity to assume that whatever choices she made were consistent with her Leftist ideology. This one was easy. After all, the apartment belonged to the President of the Lawyers Guild, who offered it to the couple for free.
By taking summer courses, Fay made up for her lost quarter following the transfer to Boalt. In June of 1956, Fay obtained her law degree with the rest of her class and finished in the top third. Fay and Marvin applied for jobs in both Los Angeles and San Francisco but received no offers. At Fay’s urging, they once again headed for the Bay Area, this time with a letter of introduction from Professor Sharp to two prominent Leftist lawyers in San Francisco, Charles “Charlie” Garry and Benjamin “Barney” Dreyfus, whom Professor Sharp had come to know well through their many years together in the Guild. Fay and Marvin packed their few belongings, their diplomas and their idealism and headed west for good.
∎ 6 ∎
Starting Out
To love what you do and feel that it matters, how could anything be more fun?1
— KATHERINE GRAHAM
That summer of 1956, Fay and Marvin found a Berkeley apartment at the top of a large house the color of gingerbread, with a turret and rounded windows. Friends thought it characteristic of Fay to live somewhere so strikingly different. Fay particularly enjoyed reuniting with Betty Lee and Gene Pippin. Pip, since divorced from his wife Anne and involved in another relationship, was again rewriting his dissertation. Fay’s family found Marvin charming, though Fay herself resumed a sometimes prickly attitude toward her parents and her sister. Fay’s politics would always remain far to the left of her father’s.
Local headlines were then being made by a treason and sedition trial in San Francisco against a fellow Reed graduate, Sylvia Powell, and her husband John. A decade older, the Powells had been sympathetic to the Chinese Revolution and later published charges made by Chinese officials that the United States had used germ warfare against the North Koreans. Professor Sharp’s friend Charles Garry took on the Powells’ defense and got the treason charges dismissed in 1959. Attorney General Robert Kennedy would drop the remaining sedition charges in 1961. The Powells’ lengthy ostracism and legal troubles must have reminded Fay of what had happened to Stanley Moore. After he was ousted from the Reed faculty in 1954 as a Communist, Moore could only find a part-time teaching position at Barnard College. Both the Powells’ situation and Stanley Moore’s ongoing academic problems underscored why Fay had good reason to fear for Marvin when Professor Sharp had asked them to distribute fund-raising leaflets for the Rosenbergs’ two sons.
The first professional hurdle Fay and Marvin faced was the California Bar. Marvin took the expensive review course and brought the notes home for Fay to study. Sam Abrahams said that if only one of them passed the Bar, he hoped it would be Marvin, the breadwinner. Both passed on the first try and were sworn in together in December of 1956. Neither found work in private law firms. The handful of Leftist lawyers in the Bay Area were barely eking out a living for themselves. Marvin signed up to take court-appointed criminal cases and tried whatever personal injury cases he could obtain. Fay found a position clerking at the California Supreme Court.
Fay’s new job brought her into the prestigious inner sanctum of the state’s highest court to get a firsthand glimpse of how its decisions were made. From the briefs raising major civil and criminal issues that crossed Fay’s desk, she quickly learned what techniques best appealed to the justices’ individual proclivities (as Professor Llewellyn had suggested to his law school classes). In the process, she absorbed reams of California law. For Fay, it opened another door that members of the public and most lawyers never penetrated. Yet it had its drawbacks. Fay had been hired to work for an octogenarian Republican, Associate Justice John Wesley Shenk.
Shenk was totally unlike Fay’s elderly friend Hammy, with whom she had gotten along so famously in her law school summer job. The mild-mannered, church-going Mason first made his mark as City Attorney of Los Angeles, where he had overseen the controversial acquisition of water in San Fernando and Owens Valley later made infamous in the movie Chinatown. Shenk soon became known statewide for his expertise in municipal water law. Though Fay found Justice Shenk affable and grandfatherly, his prejudices appalled her. Back in the 1920s, he had supported “Oriental exclusion.” Fay was amazed to learn he still used the term “the yellow hordes” to describe Asian-Americans.
Meanwhile Fay, in her spare time, found an outlet for her activist energies. She volunteered to do research for a ground-breaking ACLU case challenging hiring discrimination. A white woman employed in the Alameda County Probation office was forced by an anti-nepotism policy to leave her job because she had recently married a black colleague in the same office. Mrs. Gaines then applied for a job as a probation officer in a neighboring county but was turned down.
Fay looked up legal precedents for the complaint the ACLU filed in June of 1957 on Mrs. Gaines’ behalf. Marvin acted as her consultant. He considered the joint political enterprise far more interesting than his day job. The principal case the ACLU relied on was a landmark 1948 decision of the California Supreme Court that involved the refusal of the Los Angeles County clerk to grant an inter-racial couple a marriage license. State law at the time — like that in 29 other states — flatly prohibited such unions:2 California’s ban dated back to the state’s admission to the Union in 1850.
California’s attorney general argued that the marriage prohibition remained justified on the basis that Negroes were socially inferior and the children of mixed marriages would likely suffer rejection by both races. While this case was pending, President Truman issued his historic order banning racial discrimination in the nation’s armed forces. California’s Chief Justice Roger Traynor led a bare majority of his court to make California the first state to hold an anti-miscegenation law unconstitutional.
When Fay read the vigorous dissent in Perez v. Sharp, she discovered to her dismay that it was written by her own boss, Justice Shenk. He argued with spirited stubbornness: “The Legislature certainly had as much right to … prohibit [marriage] between persons of different races as they had to prohibit it between … idiots.”3 Justice Shenk relied on a nineteenth century federal decision enforcing Georgia law. Fay boiled down her boss’s perspective to its essence: “If it is good enough for Georgia, it is good enough for me.”4 At about the same time, Fay learned that a male law clerk, hired when she came aboard, received $110 per month more than she did for doing the same work. After six months, Fay could no longer stomach Justice Shenk’s racism and sexism. Fay assumed correctly that Marvin would support her decision to quit. Over and over, Fay’s uncompromising nature would find a safety net in Marvin’s generous support.
Armed