Judge Thelton Henderson: Breaking New Ground
(Published, January 2017)
By Richard B. Kuhns

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TABLE OF CONTENTS
ACKNOWLEDGMENTS
INTRODUCTION

PART ONE: THELTON HENDERSON AND THE PROCESS OF JUDICIAL DECISION MAKING
Chapter I. Introducing Thelton Henderson
Chapter II. Judge Henderson and the Art of Judging
PART TWO: PATH TO THE BENCH
Chapter III. The Early Years
Chapter IV. College, the Army, and Law School
Chapter V. The Justice Department
Chapter VI. Law Practice, Legal Services, and Academia
Chapter VII. Appointment to the Bench
Chapter VIII. Rashomon
PART THREE: JUDGE THELTON HENDERSON
Chapter IX. On and Off the Bench
DOLPHINS, VIET NAM VETERANS, AND JOHNNY SPAIN
Chapter X. Dolphin-Safe Tuna
Chapter XI. Agent Orange
Chapter XII. Unshackled: The Johnny Spain Case
PART FOUR: INSTITUTIONAL REFORM LITIGATION AND THE LIMITS OF JUDICIAL POWER: CALIFORNIA PRISONS AND AN EAST PALO ALTO SCHOOL DISTRICT

Chapter XIII. Institutional Reform Litigation
Chapter XIV. Judge Henderson’s Prison Trilogy: Introduction
Chapter XV. Judge Henderson’s Prison Trilogy, Part I: Madrid v. Gomez
Chapter XVI. Judge Henderson’s Prison Trilogy, Part II: Plata v. Schwarzenegger...
Chapter XVII. Judge Henderson’s Prison Trilogy, Part III: Coleman/Plata v. Schwarzenegger
Chapter XVIII. Recording Atrocities Redux: Special Education in East Palo Alto
PART FIVE: JUDGE HENDERSON’S JUDICIAL ACTIVISM AND HIS JUDICIAL
RESTRAINT: TWO EXAMPLES (WITH TWO NINTH CIRCUIT REVERSALS AND TWO SUPREME COURT VINDICATIONS)

Chapter XIX. The (Mostly) False Rhetoric of Judging
Chapter XX. High Tech Gays: Suspect Classifications and Fundamental Rights
Chapter XXI. Proposition 209: Inequality in the Political Process
CODA
Chapter XXII. The Ninth Circuit?
Appendices
Appendix A. The Legal Framework
Appendix B. High Tech Gays in the Ninth Circuit
Appendix C. Rush to Judgment: The Ninth Circuit’s Proposition 209 Opinion
Endnotes
Soul of Justice
Directed by Abby Ginzberg
SOUL OF JUSTICE: Thelton Henderson’s American Journey is a timely and unforgettable story about one person’s commitment to integrity and human rights and his profound influence on the American judicial system. Award-winning director Abby Ginzberg’s riveting and thought-provoking film transports viewers through the inspiring life and work of one of the first African-American federal judges in the United States and chronicles the impact of his decisions on the lives of millions. As the first black attorney in the Civil Rights Division of the Kennedy Justice Department in the 1960’s, Henderson, fresh out of law school, confronted the intricate challenges of being a black man in authority within the largely all-white world of the American legal system.
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Press - In The News
Recent Articles about Thelton Henderson Breaking New Ground
January 18, 2017 San Francisco Recorder
About the Book
Judge Thelton Henderson, Senior Judge of the Federal District Court for Northern California, began his legal career with the Civil Rights Division of the Justice Department in 1962.  He was the first African-American Justice Department attorney to work in the South, where he became an important liaison between the Department and civil rights leaders.  Later, Judge Henderson engaged in private practice, worked as a legal services attorney, and became an Assistant Dean at Stanford Law School, where he established one of the first successful law school minority admissions programs in the country.  President Carter appointed him to the federal bench in 1980, and during his tenure Judge Henderson  issued a number of notable and sometimes controversial decisions.  For example, in a series of rulings, he protected dolphins from needless slaughter by tuna fishers; after finding that California was incapable of providing constitutionally adequate medical care for its prisoners, he placed the entire prison medical system in receivership; and as part of a three-judge court, he ruled – in a decision affirmed by the Supreme Court – that California had to reduce substantially its prison population.  Judge Henderson has been the recipient of numerous honors and awards including the American Bar Association’s Thurgood Marshall award, the Bernard Witkin Medal from the California Bar Association, and the Anti-Defamation League’s Pearlstein Civil Rights Award.  In 2008, the University of California, Berkeley honored Judge Henderson as its Alumnus of the Year.  Two years earlier the UC Berkeley Law School renamed its justice center The Thelton E. Henderson Center for Social Justice.  A documentary film on Judge Henderson’s life, Soul of Justice by Abby Ginzberg, was released in 2005.

Portrait by Skye McNeill

Introduction to the Book
I met Thelton Henderson in the summer of 1966. He had just been hired to run a legal
services office in East Palo Alto, California, and I was about to begin my third year at Stanford
Law School. For the next two and a half years, I worked with Thelton at the legal services office,
first as a student volunteer and then as a young lawyer. He was my mentor, and he was and
continues to be a close friend. Thelton presided at my marriage to Mary Quigley in 2002. To
everyone’s delight except mine, he managed to confuse a wedding ceremony with a roast. I’ve
threatened to use this book as payback; but except for getting in a couple of jabs about Thelton’s
early fishing prowess, I’ll have to wait for another occasion to get my revenge.

Throughout the years, as I learned more about Thelton’s life before I met him and his
later accomplishments as a lawyer, an academic, and finally a United States District Court judge,
I became convinced that he had a compelling story to tell. I urged him to write about his
experiences on a number off occasions; and although he was initially attracted to the idea, it
eventually became apparent that somebody else would have tell the story.

Lawyer and film maker Abby Ginzberg stepped into the breach. Her documentary, Soul
of Justice: Thelton Henderson’s American Journey, tells of Thelton’s early life and career as a
lawyer and then focuses on three highlights of his judicial career: saving dolphins from needless
slaughter by tuna fishers, protecting inmates at Pelican Bay State Prison from cruel and inhumane
treatment, and contending with the constitutional issues raised by California’s anti-affirmativeaction
initiative, Proposition 209. Soul of Justice was the immediate inspiration for this book.

My friendship with Thelton has provided a unique opportunity to explore matters with
him in often great depth. In addition, the relative contemporaneity of the accounts in this book
may provide insights and perspectives that, but for the book, would not be readily available later.
On the other hand, later accounts may benefit more from the hindsight of history; and my
friendship with Thelton raises at least the appearance, if not the reality, of bias. As the text in
Chapter Two suggests with respect to judging, the most that one can do to eradicate this latter
problem is to try – as I have here – to be aware of and to compensate for one’s biases. Whether I
have succeeded or not, the many awards and accolades that Thelton has received are strong
evidence that the very positive portrait of him presented here is much more a function of his
character than of my bias.

Photos

Thelton Henderson, Growing Up

Justice Thelton Henderson