Big Fuss at the Art Institute
In 1913, when New York's Armory Show came to the Art Institute, giving Chicagoans their first long look at the likes of Matisse, Picasso, and Duchamp, an outraged public rose to defend the female form.
Hard as it is to believe, the passion and reverence now reserved for the American flag used to be shared by the female form. Today a familiar, utilitarian commodity, the female form was thought rare and mysterious, to be displayed with the same decorum and ritual tendered Old Glory at sunset by U.S. Marines.
The Armory Show trifled with all that.
"Our splendid Art Institute is being desecrated," said one scribe. "Matisse has examples of the nude that should be turned to the wall," reported another. "All recognized ideals of human beauty seem to have been willfully abandoned," a citizen wrote the Tribune. A high school art instructor denounced "these naked pictures, the products of demoralized minds."
M. Blair Coan, investigator for the senatorial vice commission, paid a horrified visit. Not only was "distorted art" to be found on every wall, but "every girl in Chicago" had come to gape at it. Coan singled out a Matisse canvas, Le luxe, that featured a "distorted female form with four toes on each foot."
Lieutenant Governor Barrett O'Hara ordered an investigation by the legislative "white slave commission."
On the last day of the Armory Show, 200 students from the School of the Art Institute marched screaming into Grant Park. In a mock trial, they convicted Matisse of "artistic and pictorial murder, of total degeneracy of color sense, of criminal misuse of line, of general esthetic debasement, of contumacious abuse of title and of artistic rapine." Copies of three of his paintings, Les poissons, Le luxe, and La femme bleu, were heaved into a bonfire.
Later, the director of the Art Institute, as leaders of the Art Institute seem wont to do, made a statement:
"Question has been raised whether the Art Institute ought to exhibit work of so extreme and radical a character; whether an established art museum ought not to adhere to recognized standards and refuse to exhibit works which at best represent but a small and eccentric group.
"The policy of the Art Institute, however, has always been liberal, and it has been willing to give a hearing to strange and even heretical doctrines, relying upon the inherent ability of the truth ultimately to prevail . . .
"The exhibition has illustrated in a striking manner the advantages of publicity. The exhibition has come and gone, the radicals have been given the opportunity of exhibiting in the most advantageous manner, the public curiosity is satisfied, everybody now knows the worst and the best, and even debate has exhausted itself. Scarcely anybody took the more extreme parts of the exhibition seriously."
Director William M.R. French was reinforced in his high-mindedness by the half of the city that found the Armory Show the most exhilarating display of art they had ever seen. It is harder to stand on principle when there is nothing but principle to hold you up, but it can be done.
Frank Teague v. Supreme Court
The Supreme Court just gave Frank Teague the bad news. You came to us with a very important issue, said the Court, and we've decided to wait until it's raised by somebody else.
Teague shouldn't take it personally. The Supreme Court did not dodge Teague (who's been in jail since 1977) on grounds he's a dangerous man who belongs behind bars. Your problem, the Court informed Teague, is that technically you are beyond the reach of any decision we might make in your favor. So why should we bother making it?
You may have read about Teague in this space last December (or in the New York Times Magazine article "Determined to Be Heard: Four Americans and their journeys to the Supreme Court"). In 1977, Teague held up a Forest Park A&P and shot it out with cops. He was convicted of robbery, battery, and attempted murder and sentenced to 30 years in prison. His defense, which the jury didn't buy, was temporary insanity. Teague didn't buy the jury. It was all white. He's black. The prosecutors had peremptorily dismissed ten blacks from the juror pool.
On appeal, Teague cited the 14th Amendment, which guarantees "equal protection of the laws," and also the 6th, which the Supreme Court had construed to guarantee a jury drawn from a pool that represents a "fair cross section" of the community. But to carry his 14th Amendment argument, Teague would have had to show that the Cook County State's Attorney systematically excluded blacks from juries trying blacks. Teague couldn't do that. As for his Sixth Amendment argument, Teague was asking that the Supreme Court's "fair cross section" rule be extended to cover juries themselves, not just jury pools. Nothing doing, said the appeals courts.
Then things changed. In a historic 1986 decision, Batson v. Kentucky, the Court shifted the burden of proof under the 14th Amendment from the defendant to the prosecutor. Under Batson, it would have been up to Teague's prosecutor to show that those ten blacks were excluded for some legitimate reason.
Trouble is, Teague's trial wasn't waged under Batson. And the Court refused to make Batson retroactive to defendants like Teague, who had exhausted their appeals.
Teague persevered with habeas corpus petitions--petitions alleging that he was imprisoned illegally--and eventually the Supreme Court granted him a hearing. Teague asked the Court to extend Batson to himself, who'd been denied Batson relief by the accident of time. And again, Teague argued that the Sixth Amendment should provide a racially balanced jury.
Sorry, replied Justice Sandra Day O'Connor two weeks ago. Batson can't help you. As for your Sixth Amendment claim--forget it. Here's O'Connor's reasoning: (1) In asking the Supreme Court to extend its "fair cross section" concept, Teague was asking it to make a "new constitutional rule of criminal procedure." (2) New rules are not applied retroactively to other defendants on collateral (habeas corpus) review (which is why Teague could not benefit from Batson). Therefore (3) If Teague got his new rule, he'd benefit from it and other prisoners just like him wouldn't. And (4), "The harm caused by the failure to treat similarly situated defendants alike cannot be exaggerated." So (5), better not give Teague a break either. "We decline to address petitioner's contention."
What's important is not O'Connor's stand on the Sixth Amendment (she didn't actually take one) but her stand on retroactivity. "We think it is time to clarify how the question of retroactivity should be resolved for cases on collateral review. . . . Implicit in the retroactivity approach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure."
Neither Teague nor the Office of the Illinois Attorney General, which was defending Teague's verdict, had asked the court to clarify or adopt anything of the kind. Retroactivity came in the side door, in a friend-of-the-court brief by the Criminal Justice Legal Foundation of Sacramento, which was unhappy with the stalling tactics of prisoners on death row.
Thus the Court threw Teague a bone. His case will never make the law books for reforming jury selection at criminal trials. But it might be remembered for making it easier to execute people.
Chicago papers paid Teague little attention. But the Orlando Sentinel ran a page-one banner headline announcing: "Ruling could reduce killers' stays." The Sentinel explained: "The ruling prohibits prisoners from raising new constitutional issues on appeal after their convictions already have been upheld."
Florida, which just executed Ted Bundy after a decade of trying, contains a seventh of the nation's 2,000 condemned prisoners. Developments that promise to hurry these prisoners into the grave are big news down there. But another thing that accounts for this wildly uneven coverage is the uncertain impact of the Supreme Court action. Far from speaking with one voice, the Court split four ways.
O'Connor's opinion had only three other justices solidly behind it: Antonin Scalia, Anthony Kennedy, and Chief Justice William Rehnquist (all of them placed in their present positions by Ronald Reagan). Byron White grudgingly concurred while reminding everyone he thinks the Court's approach to retroactivity is wrongheaded.
Harry Blackmun and John Paul Stevens believed the Court should have decided the Sixth Amendment question in Teague's favor. "Proceeding in reverse," Stevens wrote sarcastically, "a plurality of the Court today declares that a new rule should not apply retroactively without ever deciding whether there is such a rule." But the two justices didn't think the all-white jury tainted the 1979 guilty verdict enough to warrant reversing it.
In dissent, William Brennan, joined by Thurgood Marshall, wrote, "Astonishingly, the plurality adopts this novel precondition to habeas review without benefit of oral argument on the question and with no more guidance from the litigants than a 3-page discussion in an amicus brief."
Having disposed of Teague, the Court acted quickly to show it is not ducking the Sixth Amendment question. Five days later the Court agreed to hear the appeal of Daniel Holland, convicted of kidnapping, rape, deviate sexual assault, and the robbery of a teenage girl in Des Plaines, Illinois, in 1980. Batson can't save Holland: he's white; the only two blacks in his juror pool were removed by the prosecution.
Although some lawyers question the impact of the Teague ruling, Kent Scheidegger of the Criminal Justice Legal Foundation thinks it's historic. "The lead [O'Connor] opinion follows our logic straight down the line," he told us proudly.
There wasn't much media coverage, we commented, No, said Scheidegger, pointing out a dramatic Supreme Court ruling on child abuse made the same day, plus the Oliver North trial.
"So I think it may have been crowded out by other news that's not as important in the long run."
Art accompanying story in printed newspaper (not available in this archive): photo/Bruce Powell.