The United States Supreme Court - 1948-1949
The United States Supreme Court - 1948-1949
The United States Supreme Court - 1948-1949
8
Last year the Court of Appeals for the Eighth Circuit was required to correct a district
judge who permitted police to prevent a meeting of Jehovah's Witnesses because the towns-
people were hostile to them. Sellers v. Johnson, 163 F. 2d 877 (C.C.A. 8th, 1947), cert. den.
322 U.S. 851 (1948). Several attempts have been made to suppress anti-Semitic newspapers be-
cause they would create anger and incite to violence against the publisher. See Dearborn Pub-
lishing Co. v. Fitzgerald, 271 Fed. 479 (D.C. Ohio, 192l); People v. Downer, 6 N.Y.S. 2d s66
(1938); cf. Near v. Minnesota, 283 U.S. 697, 721 (1931). In the leading English case, Salvation
Army parades had been attacked by hoodlums and finally resulted in a riot of over 1,000 per-
sons. Yet when police attempted to stop the Army from parading again in the face of yet an-
other mob, the court held the police without power to do so. Beatty v. Gillbanks, 9 Q.B.D.
3o8 (1882).
'
09
336 U.S. 77 (r949).
noSaia v. New York, 334 U.S. 558 (1948).
m 336 U.S. 77, 82 (1949).
m Ibid., at 83, 87.
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THE UNITED STATES SUPREME COURT: 1948-49 29
usefulness of inexpensive sound trucks for the purpose of communicating
ideas in a world in which all other means of mass communication are domi-
nantly in the hands of persons of wealth.n
3
On the basis of the precedents, Justice Reed seems to have all the best of
it. The Court in the past has held, essentially, that the state cannot sub-
stitute its judgment for that of the individual as to whether he wishes to
receive the message of another. Thus a city cannot prohibit door-to-door
circulation of lea:fl.ets, unless the individual posts on his own house that
he wishes no intruders. II4 The owner of the company town cannot keep
those who convey information away from his town, because the individ-
uals who live there may wish to receive it. ns But at all times the right of
the individual as to what he would hear has been as well preserved as the
right of him who would speak.
The sound truck batters down this defense of the auditor, leaving com-
plete control of communication to the speaker. The right of choice as to
what one says is not of greater importance than the right of choice as to
what one hears, and if sound trucks roam the streets, the passer-by who
wishes to be left alone has no protection. Justice Reed stressed the help-
lessness of the unwilling listener. Justice Black, in dissent, contended that
loud-speakers could be controlled in volume, and kept off busy streets
though not off all streets. But it is hard to find in the Constitution a re-
quirement that anyone, whether he lives on a busy street or a quiet one,
can be compelled to hear a message which he does not choose to hear.
In the area of criminal procedure, including court-martial procedure, n
6
there were several noteworthy decisions. The most outspoken pronounce-
ment of the Court during the year was the granting of eight petitions by
imprisoned persons for certiorari to various Illinois courts. All eight cases
were remanded with the admonition, "If there is now no post-trial pro-
cedure by which federal rights may be vindicated in Illinois, we wish to
be advised of that fact upon remand of this case."II7 Legislation passed in
11
3 See, for example, the various reports of the Univ. Chi. Comm. on a Free and Responsible
Press (1947); Ernst, The First Freedom (1946).
11
4 Martin v. Struthers, 319 U.S. I4I (1943).
nsMarsh v. Alabama, 326 U.S. sor (1946).
n
6
United States ex rei. Hirshberg v. Cooke, 336 U.S. 210 (1949), held that Navy personnel
are not subject to coUit martial during a second enlistment for offenses committed during the
first. Wade v. Hunter, 335 U.S. 907 (1949), held that a soldier was not placed in double
jeopardy when his coUit martial was suspended in the middle due to the "tactical situation" of
the military and he was later tried anew. Humphrey v. Smith, 336 U.S. 695 (1949), held that
the lack of a full and fair pre-trial investigation in accordance with Article of War 70 was not
"jurisdictional," i.e., was not a gross enough error to be subject to judicial review.
11
7Young v. Ragen, 69 S. Ct. 1073 (1949).
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30
:rHE UNIVERSITY OF CffiCAGO LAW REVIEW
Illinois after the Court's order has established proper procedure there.us
The case of most general importance in criminal procedure was Up-
shaw v.United States,u
9
which held that a confession obtained during a
thirty-hour period after arrest without warrant could not be used against
the defendant, whether or not it was obtained by coercion. Justice Black
for the majority of :five stressed that this was an interpretation of the
Federal Rules of Criminal Procedure, and not a constitutional decision,
but it is nonetheless applicable in all federal prosecutions. Rule 5 (a) of
the Criminal Rules provides that persons must be formally charged "with-
out unnecessary delay," and thirty hours of waiting for a confession is ob-
viously not "without unnecessary delay." The case called for and received
a routine application of McNabb v. United States.
12
Four Justices joined
in a dissent by Justice Reed, the pithiest section of which summarized
the position of all those who have criticized the McNabb rule-the police,
the House of Representatives, some states, and some law reviews. "To-
day's decision," said Justice Reed, "puts another weapon in the hand of
the criminal world. "I2I
The case thus poses a question with which some Justices felt themselves
confronted several times during the term: How shall I choose between
constitutional ideals and efficient law enforcement? The majority on the
issue of speedy arraignment in the Upshaw case are also the Justices most
alert to strike down forced confessions, and to them the speedy arraign-
ment rule is one method of preventing such forced confessions. Justice
Reed, in his dissent, pointed out that the defendant is protected against
the use of forced confessions when it appears in fact that there was force;
although he dissented in two of the three cases he cites exemplifying the
rule against forced confessions.
122
In short, the dissenters in the Upshaw
case, though they certainly do not approve of forced confessions, are less
troubled about them in particular cases than are the majority.
This was further illustrated by a group of forced confession cases this
ns The case was treated as front page news in the St. Louis Post Dispatch (June 6, I949).
Such publicity, coupled with the strenuous efforts of a la'rge group in Illinois including Mr. Al-
bert E. Jenner, Jr., President of the Ill. State Bar, resulted in passage of a bill at the I949
legislative session which establishes an effective post-trial procedure. St. Louis Post Dispatch,
p. Sa (July 3, I949). See also Katz, An Open Letter to the Attorney General of lllinois, IS Univ.
Chi. L. Rev. 2SI (I948); Power to Appoint Counsel in Illinois Habeas Corpus Proceedings, IS
Univ. Chi. L. Rev. 94S (I948); A Study of the Supreme Court, IS Univ. Chi. L. Rev. Io7, I26-
3I (I948).
II9 335 u.s. 4I0 (I948).
120
3I8 u.s. 332 (I943).
m 335 U.S. 4IO, 436 (I948).
1
""Haley v. Ohio, 332 U.S. S96 (I948); Malinski v. New York, 324 U.S. 40I (I945). In Ash-
craft v. Tennessee, 322 U.S. I43 (I944), Justice Reed was with the majority.
HeinOnline -- 17 U. Chi. L. Rev. 31 1949-1950
THE UNITED STATES SUPREME COURT: 1948-49 31
year. '
23
In the case of Watts v. Indiana, the defendant was held for six days
without being arraigned, during part of which he was kept in solitary con-
finement in a cell called "the hole." He was questioned in relays during
virtually all of each night but one, and was often interrogated during the
days as well. He finally produced a confession satisfactory to the police,
on the basis of which he was convicted. In Turner v. Pennsylvania, the
defendant was held incommunicado and without charge through :five days
of questioning, although he was interrogated for shorter periods than
Watts. In Harris v. South Carolina, the defendant, an illiterate Negro, was
arrested on Friday, held until Monday before he was told that he was
suspected of murder, and was then interrogated in relays for most of each
of three days before he "confessed." In the Watts and Harris cases there
was the usual conflict of testimony as to physical abuse. In all three cases
the Court, with the leading opinion by Justice Frankfurter in each, held
that the convictions must be set aside.
The four Justices who had dissented in the Upshaw case also dissented
in these three cases. The position of Justice Jackson, speaking for the
group, was that as long as violence is not used, simple interrogation with-
out counsel for protracted periods of time is no violation of a right, par-
ticularly because "once a confession is obtained it supplies ways of verify-
ing its trustworthiness. "
2
4 He granted that "arrest on suspicion and inter-
rogation without counsel ... largely negates the benefits of the constitu-
tional guaranty of the right to assistance of counsel,"
125
but this he seemed
to consider a necessary part of the cost of law enforcement.
The foremost practical difference between the two groups of Justices on
this issue is the difference in the extent to which they believe that violent
abuse of prisoners follows automatically from secret questioning. For ex-
ample, the Harris case interrogation was of the relay type by groups of
officers in a room eight feet by eleven. Harris asserted that at one point he
was struck with force. The officer said he merely placed a hand on Harris'
shoulder. The dissent presumably believes the officer. The majority pre-
sumably believes that episodes which give rise to such divergencies should
not be allowed to occur in the :first place. As Justice Frankfurter put it,
"To turn the detention of an accused into a process of wrenching from him
evidence which could not be extorted in open court with all its safeguards,
is so grave an abuse of the power of arrest as to offend the procedural
standards of due process."
126
12
l Watts v. Indiana, 69 S. Ct. 1347 (1949); Turner v. Pennsylvania, 69 S. Ct. 1352 (1949);
Harris v. South Carolina, 69 S. Ct. 1354 (1949).
1 2
~ Watts v. Indiana, 69 S. Ct. 1347, 1357 (1949).
125
Ibid., at 1358. '
26
Ibid., at 1350.
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32 THE UNIVERSITY OF CIDCAGO LAW REVIEW
A federal procedure decision which will have almost its only impact in
the :Pistrict of Columbia involved facts odd enough to make it worth
recitation.
127
The defendant, Frazier, was charged with violating theNar-
cotics Act, a statute administered by the Treasury Department. He was
tried by a jury in the District of Columbia which consisted entirely of
government employees, including one who was an employee of the Treas-
ury Department and another whose wife was employed there. Defendant
claimed the lack of an impartial jury as required by the Sixth Amendment.
Justice Rutledge surprisingly held that Frazier had nothing of which to
complain. The "government quality" of the jury had in part been created
by his own challenges to some nongovernment employees on the panel, a
fact which Justice Rutledge stressed. But the defendant's use of his chal-
lenges is entirely his own prerogative, and he should scarcely be required
to use it to take government employees off the panel if they should not
have been there in such numbers in the first place.
128
Although it has long
been recognized by statute and decision that government employees
should serve as jurors, it is surprising the Court should not feel that 12
out of 12 are too many. Excerpts from a paragraph of Justice Jackson's
dissent, joined by Justices Frankfurter, Douglas, and Murphy, are so
forceful that they are appended in a note.x9
Four search and seizure cases give evidence of the renewed attention
being given that subject. In the most important of them, Wolf v. Colo-
rado,X3" the majority, like an army on parade, marched impressively up
the field and then came back again to where they had started. If the fig-
ure may be pursued, the parade was magnificent, but the enemy remained
unscathed.
12
7 Frazier v. United States, 335 U.S. 497 (1948).
12
8 Justice Jackson asserted in dissent that the reason for the large number of government
employees on District of Columbia juries is that the court dismisses those who do not wish to
serve. Compensation for jurors is $4.00 a day, except that government employees get their
regular salaries from their agencies. They are thus the only group of employed persons eligible
for jury service who do not have something to gain by taking advantage of the opportunity to
avoid jury service, since the $4.00 is obviously not compensatory for. most other persons.
12
9 "This criminal trial was an adversary proceeding, with the government both an actual
and nominal litigant. It was the patron and benefactor of the whole jury, plus one juror's wife
for good measure. At the same time that it made its plea to them to convict, it had the upper
hand of every one of them in matters such as pay and promotion. Of late years, the Govern-
ment is using its power as never before to pry into their lives and thoughts upon the slightest
suspicion ofless than complete trnstworthiness. It demands not only probity but unquestioning
ideological loyalty .... Even if we have no reason to believe that an acquitting juror would be
subjected to embarrassments or reprisals, we cannot expect every clerk and messenger in the
great bureaucracy to feel so secure as to put his dependence on the Government wholly out of
mind." 335 U.S. 497, 514-15 (1948).
130
6g s. Ct. 1359 (1949).
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THE UNITED STATES SUPREME COURT: 1948-49 33
In the Wolf case, the defendant had been charged with a criminal of-
fense in the courts of Colorado, where evidence obtained by an alleged un-
lawful search and seizure was admitted against him. The issues before the
Court were two: (r) Is the Fourth Amendment, through the Fourteenth
Amendment, a limitation on the states as well as on the federal govern-
ment? (2) If so, is the federal rule declared in Weeks v. United States,X
31
that wrongfully seized evidence may not be admitted, also a limitation
on the states?
What the Court decided on the :first point is a little elusive. In the view
of the Court majority, for whom Justice Frankfurter spoke, no one of the
amendments in the Bill of Rights is, as such, made applicable to the states by
the r4th Amendment. Rather, so many of the Bill of Rights conceptions
are made applicable to the states as are "implicit in the concept of ordered
liberty."
132
This does not mean that one may simply label a right "im-
plicit" or not. Instead, under this majority view, a single principle of the
Bill of Rights may be obligatory on the states in some situations and not
in others. For example, the right to counsel is "implicit in the concept of
ordered liberty" in capital cases, X33 but is usually not "implicit" in larceny
cases.
134
In the W olj case, the Court split the search and seizure protection and
withheld one part. Something of the search and seizure conception is de-
clared to be a limitation on the states. Justice Frankfurter called it "The
security of one's privacy against arbitrary intrusion by the police."
135
On the other hand, it was held that evidence illegally seized by a state
could be admitted at trial although under the federal rule such evidence
would be inadmissible. Justice Frankfurter held that the inadmissibility
aspect of the Fourth Amendment,XJ
6
though "we stoutly adhere to it" for
the federal system, was not so important that it must also be applied to
the states. The primary element inducing his conclusion was that thirty
states do not now apply the Weeks rule, and that therefore the failure to
apply it was not sufficiently abritrary or unjust to require federal correc-
tion.
This result leaves the question of how the prohibition against illegal
1
3
1
232 U.S. 383 (1914). l32 Palko v. Connecticut, 302 U.S. 319, 325 (1937).
1
33 Powell v. Alabama, 287 U.S. 45 (1932).
l34 Bettsv. Brady,316 U.S. 455 (1942). In two cases this year the Courtfound that petition-
ers had been denied due process by trials without counsel in non-capital cases. Uveges v. Penn-
sylvania, 335 U.S. 437 (1949); Gibbs v. Burke, 69 S. Ct. 1247 (1949).
I3S 69 s. Ct. 1359. 1361 (1949)
1
3
6
The inadmissibility rule, of course, is based upon both the Fourth Amendment and the
self-incrimination safeguards of the Fifth Amendment.
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34 THE UNIVERSITY OF CHICAGO LAW REVIEW
searches and seizures is to be enforced against the states if the police are
to be permitted to use evidence which is the fruit of illegality. The Court
pointed out that persons so victimized may resort "to the remedies of
private action and such protection as the internal discipline of the police,
under the eyes of an alert public opinion, may afford."I37
Justices Douglas, Murphy, and Rutledge dissented. To Justice Mur-
phy, author of the principal dissent, remand to "private action" and "in-
ternal discipline" was tantamount to holding that there was no federal
limitation at all on the rights of states to make searches and seizures. The
Murphy opinion, from the standpoint of good clear prose and reserved
strength of expression, is one of the rare great documents to emerge from
the judicial process, and deserves reading in full. The Murphy thesis was
that of the Weeks case-if wrongfully seized documents can be used as evi-
dence, the Fourth Amendment "might as well be stricken from the Con-
stitution."138 He derided the Court's alternatives to the rule of exclusion
of evidence, saying, "There is but one alternative to the rule of exclusion.
That is no sanction at all."
1
39
The other search and seizure cases were less impressive. Brinegar v.
United States
1
4" followed the rule of Carroll v. United States,X4
1
permitting
search without a warrant upon a showing of very probable cause that a
crime was being committed and that the person searched was escaping
in an automobile. In McDonald v. United States
1
42 the Court held a search
illegal in which the police without a warrant sneaked into a house through
a window, peered at a tenant through a transom, saw him doing something
illegal, and then claimed the right to seize the implements of his misdeed
because they had actually seen them. The defendant had been under ob-
servation for two months, and no reason for proceeding without a warrant
was even suggested. The most interesting aspect of the Brinegar and Mc-
Donald cases was the view expressed by Justice Jackson that the interpre-
tation of the Fourth Amendment ought to vary with the offense charged.
McDonald was charged with being in the numbers racket, Brinegar with
bootlegging. Both of these offenses seemed unimportant to Justice Jack-
son, who observed, "Whether there is reasonable necessity for a search
without waiting to obtain a warrant certainly depends somewhat upon
the gravity of the offense thought to be in progress as well as the hazards
of the method of attempting to reach it."
14
3
I37 69 s. Ct. 1359, 1369 (1949). IJ
9
69 s. Ct. 1359 1369 (1949).
zas Weeks v. United States, 232 U.S. 383, 393 (1914). z
4
69 S. Ct. 1302 (1949).
I
4
I 267 u.s. 132 (1925). I
42
335 u.s. 451 (1948), I
4
J Ibid., at 459
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THE UNITED STATES SUPREME COURT: 1948-49 35
A summary of the positions of the Justices in the nonunanimous civil
rights cases follows. As always, such data must be read with the greatest
of caution, for in some respects it is misleading.'44 Cases are classified by
result, without regard to whether a particular Justice may have been pre-
occupied with procedural issues. The cases collected on the happenstance
of appearing in the same term may bulk overlarge in some areas and omit
others. For example the record of Chief Justice Vinson, who is more dis-
turbed about racial discriminations than he is about trial abuses, is some-
what distorted for this year, in which there were no racial discrimination
cases but several fair trial problems.
Moreover, the summary makes no allowance for extremeness of posi-
tion. Thus Justice Black is predominantly on the "pro civil rights" side
of the table despite the fact that his lone position on searches and seizures
in Woljv. Colorado may well be the most restrictive interpretation of the
Fourth Amendment by any Justice in the Court's history. Justice Frank-
furter is listed at the middle of the group, although the views expressed by
him in his lone opinion in Kovacs 11. Cooper represent the most basic hos-
tility, not to freedom of speech but to judicial protection of freedom of
speech, of any member on the Court.'4
5
Justice Reed is listed as being
least persuaded by claims of civil rights; yet he apparently rejects the ex-
treme Frankfurter position in the Kovacs case, and wrote a unanimous
opinion upholding the right to counsel in a borderline situation.I4
6
Finally,
a careful note should be made that allocation of a digit to one side or an-
other of the table is not an expression of the wisdom or legal rightness of
the position.'47
With all these and other qualifications, the list is nonetheless of some
value. If a given Justice's decisions put him preponderantly in one column
1
44 The principal popularizer of the "statistical method" of approaching Supreme Court
decisions is Professor C. Herman Pritchett. See, for example, his book, The Roosevelt Court
(1948). But Professor Pritchett himself is far more reserved concerning the merits of the meth-
od than some who have toyed with it. I have expressed my own strong doubts as to the use-
fulness of the device in a review of the Pritchett book, 34 IowaL. Rev. 143 (1948); see Yarmo-
linsky, 16 Univ. Chi. L. Rev. 598 (1949), also reviewing Professor Pritchett's book.
1
45 Justice Frankfurter elaborated at some length his view that the well-known footnote four
of United States v. Carolene Products Co., 304 U.S. 144, 152 (1938), and the numerous cases
following it had not put the civil rights in a "preferred position," protected by a "presumption
of unconstitutionality."
146 Gibbs v. Burke, 69 S. Ct. 1247 (1949).
1
47 Since one tends to measure "rightness" by his own convictions, the writer notes that he
thought the claim of a violated civil right unsound in four of the cases in the group of eighteen
cited note 148 infra. The four are Brinegar v. United States (search of automobile), Hirota v.
United States (review of war crimes), Kovacs v. Cooper (suppressing of sound trucks), and
Wade v. Hunter (question of double jeopardy in court martial).
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THE UNIVERSITY OF CHICAGO LAW REVIEW
or the other, then the :figures contain a clue or hint as to his basic attitudes
about civil rights.
There were eighteen divided civil rights cases at the 1948 term.X4S There
were in addition four civil rights cases this year in which the Court was
unanimous, twice upholding the claim and twice disallowing it.X4
9
TABLE 3
DISTRffiUTION OF VOTES IN NONUNANIMOUS CIVIL RIGHTS CASES
IN SuPPORT OF THE IN DENIAL OF THE
CLAlloiED RtGRT CLAIMED RtGRT
]USTICE
X946 1947 1948 TOTAL 1946 1947 1948
ToTAL
Vinson ....... 0 6 2 8 r2 2I I6
49
Black ........ 8 19
12
39 4 7
6 17
Reed ......... 2
4
2 8 10
23
16
49
Frankfurter ... 2 I2
9
23
IO
IS
9 34
Douglas ...... 8
23
I6
47 4 4
2 IO
Murphy ...... IO
25
IS
53
I 2 0
3
Jackson ...... 2
7 5
I4
9
20 I2 41
Rutledge ..... II 26
IS 52
I I 2
4
Burton .......
3
6 I IO
9
2I
I7
47
With all the limitations of the case-counting approach in this area, it
does at least establish clearly, for example, that Justices Rutledge and
Murphy on the one hand, and Justice Reed and Chief Justice Vinson on
the other, have wholly different schemes of values in respect to civil
liberty.
IV. LAWYER'SLAW
FEDERAL JURISDICTION
a) Certiorari Jurisdiction
In last year's article it was suggested that the published rules and state-
ments concerning certiorari jurisdiction are rapidly on their way to be-
148 Brinegar v. United States, 69 S. Ct. 1302 (1949); Fisher v. Pace, 334 U.S. 827 (1948);
Frazier v. United States, 335 U.S. 497 (I948); Harris v. South Carolina, 69 S. Ct. I354 (I949);
Hirota v. MacArthur, 335 U.S. 906 (I948); Humphrey v. Smith, 336 U.S. 695 (1949); Klapp-
rott v. United States, 335 U.S. 6oi (1949); Kovacs v. Cooper, 336 U.S. 77 (I949); Lustig v.
United States, 69 S. Ct., I372 (I949); McDonald v. United States, 335 U.S. 45I (I948);
Terminiello v. Chicago, 69 S. Ct. 894 (I949); Turner v. Pennsylvania, 69 S. Ct. 1352 (1949);
United States ex rei. Johnson v. Shaughnessy, 69 S. Ct. 92I (1949); Uveges v. Pennsylvania,
335 U.S. 437 (I948); Wade v. Hunter, 336 U.S. 684 (I949); Wattsv. Indiana, 69 S. Ct. 1357
(I949); Wolf v. Colorado, 69 S. Ct. 1359 (1949). In view of the Chief Justice's position in the
Terminiello case, in which his dissent was solely on procedural grounds and in which he noted
that if he had reached the issue considered by the majority, he would have concurred, he is
listed as supporting the claimed right in that case.
1
49 Gibbs v. Burke, 69 S. Ct. 1247 (1949); Giboney v. Empire Storage & Ice Co., 336 U.S.
490 (I949); United States v. Wallace & Tiernan Co., 336 U.S. 793 (I949); Young v. Ragen,
69 S. Ct. Io73 (1949).
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THE UNITED STATES SUPREME COURT: 1948-49 37
coming legal :fictions.
1
so At least some expressions this year add support to
this view.
The three rules regarding certiorari which in fact seem to be in process
of change are (1) that certiorari will be granted, among other circum-
stances, where an important public question is raised; (2) that certiorari
will be granted where four Justices so vote; and (3) that the denial of cer-
tiorari is not even a tacit affirmance, and expresses no judgment one way
or the other on the merits.
1
s
1
The article on the 194 7 term collected a number of certioraris denied
that year on which a reasonable person might have supposed that the
writ would be granted on the basis of the first proposition above. During
the 1948 term, however, the Court seems to have been unduly generous,
under this rule, in one or two of its grants of the writ.I
52
The term witnessed an attack by Justice Frankfurter on the second
proposition above-the "rule of four." When the bulk of the Court's juris-
diction was made discretionary by Congress in 1925, it was on the promise
explicitly made for the Court by its representative at the Congressional
hearings that certiorari would be granted on the vote of four Justices.
1
s3
This year Justice Frankfurter declared that he would not vote on the
merits of the Federal Employers' Liability Act cases even though certiorari
had been granted under the "rule of four." He believes that the Court
should not spend its time on such cases, which usually involve problems
of the operation of civil juries under the Seventh Amendment. Neverthe-
less a substantial number of certioraris are granted in these cases. In Wil-
kerson v. McCarthy, Justice Frankfurter detailed his reasons for believing
rso 1947 Term Article, at 34-3S
rsr A leading work analyzing certiomri practice is Boskey, Mechanics of the Supreme Court's
Certiomri Jurisdiction, 46 Col. L. Rev. 2SS (1946).
rs:> It is so frequently difficult to understand dismissal orders in appeal cases because of the
widely variant present pmctice in respect to them. For examples, in Hall v. Virginia, 33S U.S.
87S (1948), the appeal was dismissed with no reason or citation given, although Justices Doug-
las and Murphy felt strongly enough to the contrary to note dissents. Hodge v. Tulsa County
Elec. Bd., 33S U.S. 88g (1948), was dismissed, a reason being given that the case was moot,
supported by citations. In Georgia R. Co. v. Musgrove, 33S U.S. goo (1949), an appeal was
dismissed for the stated reason that there was an adequate state ground for the judgment be-
low. Justice Jackson dissented, and no cases were cited. In Superior Court of California v. Lille-
fioren, 33S U.S. 8u (1948), an appeal was dismissed for the same reason, this time with cita-
tions.
In Michelson v. United States, 33S U.S. 469,474 n. S (1948), Justice Jackson, author of the
opinion of the Court, noted his own doubts as to whether certiorari should have been granted
at all. Fisher v. Pace, 336 U.S. ISS (1949), a contempt of court case turning entirely upon
unique facts and in which the judgment e,ither way was necessarily very close, exemplifies the
type of case in which it is hard to understand why certiorari should have been granted.
ISJ See Boskey, op. cit. supra note r82
1
at 2s7; Burton, Judging Is Also Administration,
:n Temple L.Q. 77, 84 (1947).
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THE UNIVERSITY OF CHICAGO LAW REVIEW
that these cases were cluttering the docket of the Court and concluded, "I
would, therefore, dismiss the petition as having been improvidently
granted. Since, however, that is not to be done, I too have been obliged to
recanvass the record ... "
154
and he thereupon recorded his position on the
merits. In Hill v. Atlantic Coast Line R.R.,rss an FELA case, certiorari was
granted and the judgment below reversed without argument in a per
curiam decision. Justice Frankfurter noted that the petition itself should
not be granted, and apparently did not participate on the merits. In Reyn-
olds v. Atlantic Coast Line R.R.,Z
56
a similar FELA case, he joined in the
Court's opinion on the merits only because the case could be disposed of on
the pleadings and did not require him to read a record.
These three cases seem to amount to an expression by Justice Frank-
furter of a policy not to participate in FELA cases on the merits where a
record is involved. If four Justices were to join the Frankfurter position,
cases would presumably be put on the docket by four Justices and taken off
by the other :five as a matter of routine. To this extent the" rule of four" is
vitiated in these cases, for it is simply a form to grant a certiorari if the
case is not then to be considered. While it may be an unsound policy to
leave to four Justices the authority to determine what cases the Court
will hear, it is doubtful that Congress would have granted the discretion-
ary jurisdiction on any other basis.
It was suggested last year that denial of certiorari is rather frequently
coming to mean tacit approval of the opinion below. That at least some
of the Justices themselves have this view was indicated in the dissent in
Christoffel v. United States.
151
The conviction of Christoffel of perjury be-
fore a Congressional Committee was set aside by a majority of the Court
on the ground that it did not appear that a quorum of the Committee be-
fore which he had testified had been present at the time of the alleged per-
jury. Justice Jackson, joined by Justices Reed, Burton, and Chief Justice
Vinson, dissented in part on the ground that the identical issue had been
raised in a previous perjury case on which certiorari had been denied.
Justice Jackson noted that the earlier denial" of course does not imply ap-
proval of the law announced below,"rss but nonetheless he did stress the
denial in the previous case at some length. In his oral delivery of his opin-
ion, this was perhaps the point most vigorously made. In the written opin-
ion he concluded, "I do not see how the Court can justify such discrimina-
I54 Wilkerson v. McCarthy, 336 U.S. 53, 68 (1949).
ISS 336 u.s. 9II (1949). I
57
6g s. Ct. 1447 (1949).
IS
6
336 U.S. 207 (1949).
ISS Ibid., at 1452 n. 4
HeinOnline -- 17 U. Chi. L. Rev. 39 1949-1950
THE UNITED STATES SUPREME COURT: 1948-49 39
tion."'
59
The whole tone of this portion of his opinion is that the action of
the Court in the two cases is somehow incompatible, which is true only if
denial of certiorari is something other than totally colorless, conveying
no attitude whatsoever toward the case denied review. The discussion
heightens the impression that, regardless of the formula, denial of certi-
orari in at least some cases is coming to be an indication that the decision
below was correct.
b) District of Columbia-Diversity Jurisdiction
InN ational M utuallnsurance Co. v. Tidewater Transfer Co.,'
60
the Court
passed upon the validity of the 1940 Act permitting District of Columbia
residents to have access to the federal diversity jurisdiction. That jurisdic-
tion is restricted by Article III of the Constitution to citizens of different
"states," and it had early been held by Marshall that the District of
Columbia and the territories were not" states" and that legislation passed
under that clause did not give their citizens access to federal courts. In
1940, Congress attempted to undo the Marshall result by passing an ex-
plicit authorizing act which rested primarily on Article I of the Constitu-
tion rather than Article III; relying on its power to make laws" necessary
and proper" for the District of Columbia and the territories.
Justice Jackson, joined by Justices Black and Burton, declared the
statute invalid if it rested on a theory that" states" in Article III included
the District of Columbia, but that it was valid as an exertion of the power
under Article I. Justices Rutledge and Murphy thought it invalid as an
exercise of Article I power, but valid under Article III. Justices Frank-
furter, Reed, Vinson, and Douglas thought it invalid under both. Thus, al-
though a majority of the Court thought the statute invalid on each theory,
the combination of theories resulted in its being upheld by a vote of :five to
four. There are times when the whole is greater than the sum of its parts.
Jackson contended that under the various grants of power in Article I,
Congress was empowered to add to the jurisdiction of the district courts.
It had previously been generally thought that Article III was exclusive,
and that, while Congress could subtract from the jurisdiction of the lower
courts, or indeed abolish them, it could not add to their jurisdiction.'
61
That view still prevails as a result of the rigorous adherence to it of six of
the Justices in this case. Under the Jackson view, the whole unintelligible
mass of doctrine concerning the relations of "legislative" and "constitu-
'59 Ibid., at 1453 n. 4 '
60
69 S. Ct. II73 (1949).
'6' The opinions of Justices Rutledge and Frankfurter deal thoroughly with this question.
Ibid., at II84, Il95
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40 THE UNIVERSITY OF CHICAGO LAW REVIEW
tional" courts would have been taken out of the District of Columbia
cubby hole in which it primarily resides and would have been inflicted on
the district courts in the forty-eight states.
162
This is avoided by the other
positions taken.
The best of the argument lay with Justice Frankfurter when he con-
tended in his dissent, "A decent respect for unbroken history since the
country's foundation, for contemporaneous interpretation by those best
quali:fied to make it, for the capacity of the distinguished lawyers among
the Framers to express themselves with precision when dealing with tech-
nical matters, unite to admonish against disregarding the explicit language
of Article III. ... "
16
3
It is usually thought that Chief Justice Marshall performed an almost
senseless act when he originally interpreted "state" so narrowly as to ex-
clude the District, and Justice Rutledge treats his opinion as one in which
"the master hand ... faltered." But Marshall, for all the aggressiveness
of his nationalism, was careful not to give needless affront to the preju-
dices of his time when the matter involved was of no great importance, as
this one was and is not. There was once great local jealousy against the
District of Columbia. In the Virginia ratifying Convention on the Consti-
tution, which Marshall attended, that attitude was expressed strongly.
Such men as Patrick Henry, in their opposition to the Constitution, vigor-
ously argued that the power over the" ten miles square" might be used to
create an oligarchy which would reach out and enjoy special privileges in
the rest of the country in derogation of the laws of the states. Those fears
were specifically answered by categorical pledges from the Federalists in
that convention that the District power would be restricted to the Dis-
trict, and particularly that no corporations chartered there would be given
special privileges elsewhere.
16
4
In view of that peculiar attitude toward the District which was so
prominently in public attention when the Constitution was ratified, it
is very possible that Marshall's hand did not falter and that he accurately
reflected the convictions of the Constitutional era. The summary of other
historical materials by Chief Justice Vinson shows that the jealousies of
the I8th century toward the federal judiciary resulted in deliberately
making Article III exclusive.
162
Justice Rutledge discusses this aspect of the problem at some length. Ibid., at n86 n. 7
and text following.
163
Ibid., at II99
16
4 References to Elliot's Debates on this point are collected in Frank, Review of Curtis,
Lions Under the Throne, and McCune, The Nine Young Men, 96 U. of Pa. L. Rev. 597, 6oo
(1948).
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THE UNITED STATES SUPRE?J.E COURT: 1948-49 4I
c) Federal and State Courts
In addition to the usual run of Erie v. Tompkins cases, one of which re-
moved some doubts as to the meaning of Angel v. Bullington,x
6
s there were
two cases of considerable importance on the relation of state and federal
courts. Stainback v. M o Hock Ke Lok P o
166
was probably brought up for re-
view to consider a basic problem of civil rights; but it served to settle an
important matter of procedure. The proceedings were brought in the fed-
eral court in Hawaii, rather than the territorial court; to challenge the
validity of a territorial law precluding the operation of foreign language
schools there. In addition to other procedural matters of less general sig-
nificance, the Court in an opinion by Justice Reed held that, as a matter of
equitable discretion, the suit should have been remanded by the federal to
the territorial courts. The language used is equally applicable to a great
variety of important suits anywhere in the United States.
This is but the most recent of a long line of cases limiting federal juris-
diction in injunction suits by the device of equity's discretion. Perhaps no
aspect of federal-state court relations has been more unsatisfactory than
federal intervention to enjoin state administrative or legislative actions
on ground of unconstitutionality. The Stainback opinion went consider-
ably farther than any previous case to end that practice, holding that:
where equitable interference with state and territorial acts is sought in federal courts,
judicial consideration of acts of importance primarily to the people of a state or terri-
tory should, as a matter of discretion, be left by the federal courts to the courts of the
legislating authority unless exceptional circumstances command a different course.
16
7
The references to "acts of importance primarily to the people of a state"
and "exceptional circumstances" leave considerable leeway for the future,
but the passage is very broad nonetheless.
The policy of giving the states :first try at questions arising from their
own laws was very carefully limited by the Court in Propper v. Clark
168
to
federal constitutional cases. This was an action brought in a federal
court by the Alien Property Custodian. His rights in this complicated pro-
ceeding were substantially dependent on New York law. Justice Frank-
furter expressed the view that the case should be remanded to the dis-
trict court so that declaratory judgment proceedings might be instituted
1
6s 330 U.S. 183 (1947). Woods v. Interstate Realty Co., 69 S. Ct. 1235 (1949), holds that
the two grounds of decision in the Angel case are equally effective precedent, and that, in
substance, under this application of the Erie rule, state legislatures may limit the jurisdiction
of federal courts in diversity cases by limiting the jurisdiction of their own courts. For a brief
criticism of Angel v. Bullington on this point, see the 1946 Term Article, at 32-33.
1
66 336 U.S. 368 (1949).
167
Ibid., at 383, 384.
168
69 S. Ct. 1333 (1949).
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42
THE UNIVERSITY OF CHICAGO LAW REVIEW
in New York state courts to obtain a declaration of the New York law.
16
9
Justice Reed in the opinion of the Court met this suggestion with a :flat re-
jection, holding that such declaratory judgment proceedings would not be
used except where necessary to avoid possible unnecessary decision of a
constitutional question by the federal court. The device, he said, "is not
to be used to impede the normal course of action where federal courts have
been granted jurisdiction of the controversy."x?o It is fortunate that the
matter was thus resolved, for the device of holding litigation in federal
courts pending proceedings elsewhere is likely to make the federal litiga-
tion interminable.
d) Sovereign Immunity
The old tune of sovereign immunity was played again in Larson v.
Domestic&- Foreign Commerce Corp.,x1x and when it was over the sovereign
had somewhat more immunity than he had had before. The suit was
brought against the War Assets Administrator to enjoin him from deliver-
ing to anyone but the plaintiff, coal which the plaintiff alleged had been
sold to him. The case was thus in effect an action for specific performance.
The Court in an opinion by the Chief Justice, recognized two legitimate
types of injunction suits against government officials: where their acts
were beyond the powers given them by statute, and where the statute or
order under which they proceeded was unconstitutional. The Court re-
jected a third theory, that where an officer held property the "title" of
which was in another, the true holder of the "title" might sue to recover
the property. This required a very narrow construction of United States v.
Lee,x1 the leading case in the field, and the overruling of Goltra v. Weeks.m
Justice Frankfurter, in a dissent joined by Justice Burton, digs into the
subject with enormous thoroughness, and the opinion of the Court as well
as the dissent make this the leading, as well as the most recent, exposition
of the jurisdictional law applicable when the government holds property
claimed by another. If there is any modern development to modify sov-
ereign immunity, the majority opinion sets the crusade back consider-
ably.x74
1
69 Justice Frankfurter advanced a similar suggestion in Comm'r v. Estate of Church, 335
u.s. 632, 674 (1949).
1
7 69 S. Ct. 1333, 1344 (1949).
171
6g s. Ct. 1457 (1949).
1
72 106 U.S. 196 (1882)
173 271 U.S. 536 (1926).
1
74 A recent scholarly plea for limitation of the i=unity is found in Block, Suits against
Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. ro6o (1946).
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THE UNITED STATES SUPREME COURT: 1948-49 43
V. THE INSTITUTION AND ITS JUSTICES
THE WORK OF THE INSTITUTION
At the I948 term, the number of cases decided by opinion, including
per curiams but excluding simple companion cases, was I22. At the pre-
ceding term the number was II g. This is a far cry from the usual 200 or so
cases a year which made up the docket before the war.
As was observed here last year, this smaller docket is the product of a
number of factors, such as the elimination of many constitutional issues
once in controversy, the Erie v. Tompkins rule eliminating diversity cases,
and the Dobson rule eliminating review of many tax cases. Compensating
to a small extent for these factors are the increased number of civil liberties
cases.
Perhaps partly a result of and perhaps partly a cause of the small
docket is a shift in the manner in which the Court is doing its work. While
TABLE 4
DISTRIBUTION OF MAJORITY OPINIONS
Vinson........... 9 Murphy .......... ro
Black ............ I9 Jackson .......... ro
Reed ............. rs Rutledge ......... ro
Frankfurter ....... r2 Burton........... 7
Douglas . . . . . . . . . . I9 Per cur.. . . . . . . . . . rr
the number of cases being decided is about 6o per cent of pre-war normal,
the number of words being written is at least as great as ever, and this year
the Court stayed in session almost a month longer than was once usual.'
7
S
Presumably, some of the present Court believe that more extensive dis-
cussions are desirable than was formerly the custom. The Court also ap-
pears to be turning more and more toward individual statements by each
Justice, thus subordinating the role of "the opinion of the Court," and,
indeed, rather frequently obliterating it.X7
6
None of these generalities applies to the entire Court. The Chief Jus-
tice, for example, almost never writes separately, and Justices Black and
I75The Court adjourned this year on June 27. The latest date of any adjournment from
1931 to 1940 was June 5 at the October 1948 term. That year the Court disposed of 247 cases
on the merits, 307 U.S. 683 (1939), more than twice as many as this year.
1
7
6
There was no "opinion of the Court" to which a majority subscribed without additional
expression in any of the following cases: Co='r v. Culbertson, 69 S. Ct. 1210 (1949); Harris v.
South Carolina, 69 S. Ct. 1354 (1949); Interstate Oil Pipeline Co. v. Stone, 69 S. Ct. 1264
(1949); Klapprott v. United States, 335 U.S.. 6o1 (1949); Kovacs v. Cooper, 336 U.S. 77 (1949);
Lustig v. United States, 69 S. Ct. 1372 (1949); McDonald v. United States, 335 U.S. 451
(1948); Nat.Mut. Ins. Co. v. Tidewater, 69 S. Ct. II73 (1949); United States v. Penn Found-
ry, 69 S. Ct. 1009 (1949); Turner v. Pennsylvania, 69 S. Ct. 1352 (1949); Watts v. Indiana,
69 S. Ct. 1347 (1949); Wilkerson v.McCarthy, 336 U.S. 53 (1949). This is approximately ten
per cent of the cases.
HeinOnline -- 17 U. Chi. L. Rev. 44 1949-1950
44
THE UNIVERSITY OF CHICAGO LAW REVIEW
Douglas are approximately as concise as they were ten years ago. But the
description is generally accurate.
The distribution of majority opinions among the Justices was as shown
in Table 4.m
At the 1946 term, Justices Frankfurter and Jackson prevailed in a con-
siderably larger number of important cases than did Justices Black,
Douglas, Murphy, and Rutledge. At the 1947 term, that balance shifted
markedly, and in 1948, it stayed approximately as it was the year before.
At all three terms, Justices Reed, Burton, and the Chief Justice have been
consistently of the majority. For each of the past two years, Justice Jack-
son has been the most frequent dissenter in important cases.
The degree of prevalence of the views of particular Justices can be meas-
ured by concentrating on the most important of the decisions, and for this
purpose I have arbitrarily chosen two groups of cases which seemed to me
to have the most important consequences to society. The first group con-
sists of the five cases which seem the most significant of the year.I7
8
The
second group of twenty-four are definitely less important, but are not
routine.I79 The data in Table 5 are taken from these two groups. Disquali-
m The text table is the writer's count. Data in the Washington Post (July 5, 1949), which
does not eliminate companion cases of an extremely simple sort, are as shown in the accom-
panying tabulation.
Majority Cone. Diss. Other
Vinson .................. IO 0
4
0
Black ................... 19 3 7
0
Reed ................... 16 0 8 0
Frankfurter ............. 14 II 20 0
Douglas ................. 20
5
I2 I
Murphy .................
9
I
9
0
Jackson ................. 10
4 I7
3
Rutledge ................
9
6 8 0
Burton ..................
7
2
5
0
The imbalance of the distribution among the Justices was more noticeable during the term
than at its somewhat protracted end. Justice Frankfurter, for example, handed down seven
of his twelve opinions at the last two sessions of the Court in June. On March 28 the distribu-
tion of the majority opinions was as follows:
Vinson................ 2
Black ................. 13
Reed.................. 8
Frankfurter.... . .. . .. .. 3
Douglas ............... 10
Murphy ................ 4
Jackson ................ 5
Rutledge ............... 2
Burton ................. 3
Per cur................. 8
1
78 Giboney v. Empire Storage &Ice Co., 336 U.S. 490 (1949); International Union, UAW v.
WERB, 336 U.S. 245 (1949); Lincoln Federal Labor Union v. Northwestern Iron & Metal Co.,
335 U.S. 525 (1949); Terminiello v. Chicago, 69 S. Ct. 894 (1949); Wolf v. Colorado, 69 S. Ct.
I359 (1949).
1
79 Algoma Plywood Co. v. WERB, 336 U.S. 301 (1949); Comm'r v. Estate of Church, 335
U.S. 632 (1949); Fed. Power Comm'n v. Panhandle Eastern Pipeline Co., 69 S. Ct. I25I (1949);
Frazierv. United States, 335 U.S. 497 (r949);Hirota v. MacArthur, 69 S. Ct. 197, 1238 (1948);
HeinOnline -- 17 U. Chi. L. Rev. 45 1949-1950
THE UNITED STATES SUPREME COURT: 1948-49 45
:fications give some Justices less than a total of twenty-nine.
The distribution of agreements among the Justices in these 29 cases,
whether in majority or dissent, is shown in Table 6.
JUSTICE
Major
Vmson ............
4
Black ...........
4
Reed ..............
5
Frankfurter ........
4
Douglas ...........
s
Murphy ...........
s
Jackson ...........
4
Rutledge ..........
s
Burton ...........
4
TABLE 5
VOTING DISTRIBUTION
MAJO:UTY VOTES
Important Total
I8 22
I7
2I
I9 24
IS I9
I6
I9
I6
I9
IS I7
I7
20
I7
2I
TABLE 6
DISSENTING VOTES
Major Important
I 6
I
7
0
s
I
9
2 8
2
7
I IO
2 6
I
7
AGREEMENTS AMONG JUSTICES IN MAJOR AND IMPORTANT CASES
Vinson Black Reed
Frank-
Douglas Murphy
Jack- Rut-
furter son ledge
------------
---
---
Vmson ........ ....... I4 24 I9 I4
I2
2S IS
Black .........
I4
....... I7 I2 2S
20 IO 20
Reed ........
24 I7
....... I8 IS IS 20 I6
Frankfurter ....
I9
I2 I8 ........ IO I2
2S IS
Douglas ......
I4 2S IS
IO ....... 20 I2 I8
Murphy ....... I2 20
IS
I2 20 ....... IO 24
Jackson ....... 2S
IO 20
2S
12 IO .......
9
Rutledge ......
IS
20 16
I3
I8
I
24
9
........
Burton ........
24 13
2I
23 IS
II
24
12
Total
7
8
s
IO
IO
9
II
8
8
Burton
---
24
IS
2I
2S
IS
II
24
I2
At the I948 term, the pattern of agreements among the Justices re-
mained much as it had been before. The most marked change was the
great increase in agreements at this term between Chief Justice Vinson
Hood & Sons v. DuMond, ss6 U.S. S2S (I949); Klapprott v. United States, SSS U.S. 6ox
(1949); Kovacs v. Cooper, ss6 U.S. 77 (1949); Larson v. Domestic & Foreign Corp., 69 S. Ct.
1457 (1949); McComb v. Jacksonville Paper Co., ss6 u.s. I87 (1949); MacDougal v. Green,
SS5 U.S. 281 (1948); Michelson v. United States, SSS U.S. 469 (1948); NLRB v. Stowe Spin-
ning Co., ss6 U.S. 226 (1949); Stainback v. Mo Hock Ke Lok Po, ss6 U.S. s68 (1949); Stand-
ard Oil Co. v. United States, 69 S. Ct. 1051 (1949); United States v. Cors, 69 S. Ct. 1086
(1949); United States v. ICC, 69 S. Ct. 1410 (1949); United States v. Nat. City Lines, 69 S. Ct.
9S5 (1949); Upshaw v. United States, SS5 U.S. 410 (1948); Urie v. Thompson, 69 S. Ct. 1018
(1949); Vermilya-Brown Co. v. Connell, 3SS U.S. S77 (1948); Wheeling Steel Corp. v. Glander,
69 S. Ct. 1291 (1949); Williams v. New York, 69 S. Ct. 1079 (1949); Young v. Ragen, 69 S. Ct.
1073 (1949). .
HeinOnline -- 17 U. Chi. L. Rev. 46 1949-1950
THE UNIVERSITY OF CHICAGO LAW REVIEW
and Justice Jackson. Of the thirty-six possible combinations of nine Jus-
tices into pairs, Chief Justice Vinson and Justice Jackson, and Justices
Black and Douglas were the pairs most often in agreement; while Justices
Rutledge and Jackson, Justices Black and Jackson, Justices Frankfurter
and Douglas, and Justices Murphy and Jackson were the pairs least often
in agreement.
180
THE WORK OF THE INDIVIDUAL JUSTICES
Chief Justice Vinson's third year on the bench found him following the
lines laid down in previous years, as the work before the Court presented
no particularly new problems for him. Since the Chief Justice is the one
member of the Court who can regularly choose the cases on which he
writes, Vinson's choice of opinions is some measure of his own interests.
He is apparently particularly interested in matters of jurisdiction and
procedure, evidenced by the fact that of his nine majority opinions, four
were in that area.
181
It is too soon to assess the Chief Justice in terms of his accomplish-
ments not as a Justice but as a Chief Justice, but a tentative evaluation
may be made. A Chief Justice has special opportunity to bring divergent
views into harmony by virtue of his chairmanship of the conference, but if
strong Justices disagree, there is substantially nothing a Chief Justice can
do about it. He has the special duties both to assign opinions fairly, mak-
ing the most of the special talents of each member of his bench, and to
make sure that the work of the Court is rapidly and efficiently done. It
now appears that Chief Justice Vinson cannot use his office to promote in-
tellectual harmony. Perhaps no one could. In any case, as Justice Jackson
observed good humoredly from the bench of the decision of the District of
Columbia diversity case, the Court sometimes mounts its horse and rides
off in all directions.
182
The Chief Justice's assignment of opinions has been
admirable, with a fair distribution of the dull and the interesting; and if
anything, he has skimped himself in the distribution of the more interest-
ing cases. The unusual length of the term evidenced that he has not been
particularly successful in getting the work done speedily. It is unlikely
that he will menace Taft and Hughes as holders of the Court's laurels as
the great administrators.
I8o For comparative data on the categories discussed in the foregoing section see the 1946
Term Article, at 37 et seq.; 1947 Term Article, at 45 et seq.
181
Callaway v. Benton, 336 U.S. 132 (1949); Ex parte Collett, 69 S. Ct. 944 (1949); Kil-
patrick v. Tex. & Pac. R. Co., 69 S. Ct. 953 (1949); Larson v. Domestic & Foreign Corp., 69
S. Ct. 1457 (1949); United States v. Nat. City Lines, 69 S. Ct. 955 (1949).
182
See note 176 supra.
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THE UNITED STATES SUPREME COURT: 1948-49 47
Justice Black, along with Justice Douglas, was as usual the author of
appreciably more majority opinions than most of his brethren. The year
was dramatic for Black principally because it required him to choose be-
tween two of his basic ideals-the maximum freedom of legislatures and
the optimum welfare of labor. The freedom of legislatures clearly tri-
umphed, since he wrote the two principal decisions upholding the legisla-
tive right to restrict closed shops and picketing!
8
3
In his other opinions, Black's year was about as would have been ex-
pected. As has been noted above, he took the most extreme position of
anyone on the Court in suggesting a sharp limitation on the meaning of
the search and seizure provision of the Fourth Amendment,
18
4 but this
general attitude toward that Amendment is not new. From the standpoint
of simple exposition, his least satisfactory opinion of the year was in Unit-
ed States v. Interstate Commerce Commission.
185
From the standpoint of
simplicity as well as comprehensiveness, his best opinions were the Mis-
souri picketing case,Z
86
the case invalidating confessions in the absence of
prompt arraignments in federal courts,Z
8
7 and Williams v. New York,X
88
a
case not discussed above. The Williams case holds valid a law authorizing
judges to use probation reports in determining sentences despite the fact
that such data are not collected in accordance with the commands of due
process. The opinion considers the relevant" nonlegal" materials carefully,
and is turned out with a polish that makes it one of the best opinions of the
year.
The 1948 term for Justice Reed was a session of solid professional ap-
plication which took him into most of the areas with which the Court
deals. It was a measure of his significant role on the Court that in the most
important cases of the year, he was of the majority more than often any
other Justice.
Reference to a few of Reed's opinions indicates the variety of his work.
He wrote the opinion of the Court in two civil rights cases upholding a
right to counsel;
189
in the two cases involving application of federal labor
18
3 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949); Lincoln Federal Labor Union
v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949).
I14 Wolf v. Colorado, 69 S. Ct. 1359 (1949).
18
s 69 S. Ct. 1410 (1949). The Court upheld the right of the United States as a shipper to
appeal to the courts from adverse decisions of the ICC. Since the United States has enormous
claims on wartime overcharges, the matter is of considerable practical importance. New Re-
public 7 (July n, 1949).
186
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949).
18
7 Upshaw v. United States, 335 U.S. 410 (1948).
188
69 s. Ct. 1074 (1949).
tS
9
Uveges v. Pennsylvania, 335 U.S. 437 (1949); Gibbs v. Burke, 69 S. Ct. 1247 (1949).
HeinOnline -- 17 U. Chi. L. Rev. 48 1949-1950
48 THE UNIVERSITY OF CffiCAGO LAW REVIEW
statutes outside the continental United States;xgo in two cases involving
important matters of procedure;
191
and in a case holding that the Natural
Gas Act did not give the Federal Power Commission authority to regulate
sales of reserves of a producing company.
192
His unhappiest opinion of the
year from the standpoint of clarity of expresssion is probably Hynes v.
Grimes Packing Co., x93 a case involving an Alaska :fishery, which represents
Reed in his occasional opaque style. One of his best written opinions was
Smith 'II. United States,X94 an analysis of the problems of self-incrimination
arising when a person testifies in an administrative hearing and is later
prosecuted for offenses closely connected with the matter of his testimony.
However, from the standpoint of amassing and clarifying large amounts of
divergent materials and of making clear the real meaning of elusive prece-
dents, the decisions dealing with the application of the Fair Labor Stand-
ards Act to Bermuda
195
and the sound truck case
96
are outstanding.
The I948 term was outstanding for Justice Frankfurter.x97 At the pre-
ceding term, Frankfurter's energies had been taken up so largely with
what at times seemed almost aimless separate opinions, that there was lit-
tle of substance left.
198
At the r948 term he again had something to say in
approximately one-third of the cases, but it was more important. He
wrote substantial majority opinions both in the Standard Oil anti-trust
case,
199
and in the Algoma Plywood case involving the right of the states to
forbid closed shops.
200
He dealt comprehensively with difficult matters for
the majority in a significant admiralty case,
201
and for the dissent in the
case involving extension of diversity jurisdiction to citizens of the District
of Columbia.
202
His major research jobs of the year were very elaborate
1
9Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948); Foley Bros. v. Filardo, 336 U.S.
281 (1949).
1
9
1
Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368 (1949); Propper v. Clark, 69 S. Ct.
1333 (1949).
1
92 Fed. Power Comm'n v. Panhandle Eastern Pipeline Co., 69 S. Ct. 1251 (1949).
1
93 69 s. Ct. 968 (1949).
1
94 69 s. Ct. IOOO (1949).
1
95 Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948).
1
96 Kovacs v. Cooper, 336 U.S. 77 (1949).
1
97 For an extended and thoughtful analysis of Justice Frankfurter's first ten years on the
bench see Jaffe, The Judicial Universe of Mr. Justice Frankfurter, 62 Harv. L. Rev. 357 (1949)
1
9
8
The point is enlarged upon in the 1947 Term Article, at 51.
1
99 Standard Oil Co. v. United States, 69 S. Ct. 1051 (1949).
200
Algoma Plywood Co. v. WERB, 336 U.S. 301 (1949).
201
Black Diamond S.S. Corp. v. Stewart & Sons, 336 U.S. 386 (1949).
202
Nat. Mut. Ins. Co. v. Tidewater Co., 6Q S. Ct. II73 (1949).
HeinOnline -- 17 U. Chi. L. Rev. 49 1949-1950
THE UNITED STATES SUPREME COURT: 1948-49 49
studies in the sovereign immunity case,
203
and in the case dealing with
state searches and seizures!
0
4 As has been noted, he adhered vigorously
to his view that the Court should leave the states wide latitude to restrict
free speech;os
Justice Frankfurter considers the actual decision of cases by the Su-
preme Court of less importance than some other Justices, carrying his
doctrine of nonaction for that tribunal to the point of systematic philoso-
phy. In a very substantial number of the cases, he would either not decide
the case as a matter of some general policy or remand it for further pro-
ceedings before he would consider it ripe for decision. This year he was
either alone or in a small minority in seven cases which he thought not
suitable for decision.
2
o6
For Justice Douglas, r948-49 may well be a year to forget. Many of his
opinions must have been dull work, a job to be done!
07
The leading Doug-
las opinions of the year were the Terminiello case;
208
an important deci-
sion in the law of eminent domain;
20
9 an analysis of the permissible
breadth of statutory injunctions;
210
his dissent in the Standard Oil case;2II
and his concurrence in Hirota v. MacArthur.
212
The Standard dissent is
startling in both its theory and its tone. The opinion asserts that the Court
"consciously pushes the oil industry" toward cartelization.
213
Since the
20
3 Larson v. Domestic & Foreign Corp., 69 S. Ct. 1457 (1949).
20
4 Wolf v. Colorado, 69 S. Ct. 1359 (1949) ..
20
5 Note 145 supra.
2
o6 Empress Siderurgica, S.A. v. Merced County, 69 S. Ct. 995 (1949); Hill v. Atl. Coast
LineR. Co., 336 U.S. 9II (1949); Hood & Sons v. DuMond, 336 U.S. 525 (1949); Nye and
Nissen v. United States, 336 U.S. 613 (1949); Propper v. Clark, 69 S. Ct. 1333 (1949); Estate
of Spiegel v. Co='r, 335 U.S. 701 (1949); Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368
(1949).
20
7 See, e.g., Ayrshire Collieries Corp. v. United States, 335 U.S. 573 (1949), the kind of
tedious ICC review problem that eight other Justices must be delighted to see Justice Doug-
las write.
20
s Terminiello v. Chicago, 69 S. Ct. 894 (1949).
20
9 United States v. Cors, 69 S. Ct. 1o86 (1949).
210
McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949).
mstandard Oil Co. v. United States, 69 s. Ct. 10,51 (1949).
212
69 S. Ct. 1238 (1948).
21
3 The same underlying theory that a law must be interpreted favorably to some part of
the business co=unity if the business co=unity is to be restrained from frustration of the
object of the law had perceptible influence on the majority of the Court in Lawson v. Suwanee
Fruit & S.S. Co., 336 U.S. 198 (1949), in which the government rather than the employer is
held liable under the Longshoremen's Act for certain injuries to persons who have been pre-
viously injured. The Court thought that if the employer were held liable, he would not employ
persons in the class involved at all, and this fear was read back into the interpretation of the
act. Justice Douglas dissented.
HeinOnline -- 17 U. Chi. L. Rev. 50 1949-1950
50 THE UNNERSITY OF CHICAGO LAW REVIEW
majority of five included three Justices who have consistently upheld the
anti-trust laws as strongly as Justice Douglas, it was extreme to suggest
that they deliberately sought to "remake America in the image of the car-
tels."
Justice Douglas has consistently shown that if he has political aspira-
tions, his opinions are unaffected by them. His independence was dra-
matically illustrated again this year in the Hirota case, where his opinion is
scarcely calculated to improve his standing with some very prominent
members of his own party, and where he could safely have joined in a per
curiam opinion of the Court. The ultimate issue was whether an American
court could review the Tokyo war crimes trials by writ of habeas corpus,
and the Court summarily held that it could not. Justice Douglas concurred
in the result, quoting at length, and with apparent agreement, from the
opinion of Justice Pal of India, dissenting from the judgment of the
Tokyo Tribunal:
The so-called trial held according to the definition of crime now given by the
victors obliterates. the centuries of civilization which stretch between us and the sum-
mary slaying of the defeated in a war. A trial with law thus prescribed will only be a
sham employment of legal process for the satisfaction of a thirst for revenge ....
Such a trial may justly create the feeling that the setting up of a tribunal like the
present is much more a political than a legal affair, an essentially political objective
having been cloaked by a juridical appearance.
Douglas put his acquiescence thus: "As Justice Pal said, it [the Tribunal]
did not therefore sit as a judicial tribunal. It was solely an instrument of
political power."
214
Hence Douglas held the trials unreviewable not because
of lack of jurisdiction in habeas corpus, but because the trials were not
"legal" at alL The disposition of the defendants was thus a political question,
unreviewable for that reason alone.
Justice Murphy's accomplishments at the I948 term were the more re-
markable because for the second consecutive year he was seriously ham-
pered by ill health. Unable to hear arguments for the first part of the term,
he participated in the cases of that period on the briefs. For the remainder
of the term he attacked his work with renewed energy. He wrote the opin-
ion of the Court upholding the validity of a South Carolina statute pro-
viding that undertakers might not serve as agents for insurance com-
- panies;rs and while the point is not difficult, the opinion disposes of it with
neat dispatch. An opinion interpreting the Longshoremen's Act, also on a
""4 Hirota v. MacArthur, 69 S. Ct. 1238 (1949). For a full description of a war trial in the
nature of an operation of "political power" see Reel, The Case of General Yamashita (Univ.
Chi. Press, 1949).
sDaniel v. Family Sec. Life Ins. Co., 336 U.S. 198 (1949).
HeinOnline -- 17 U. Chi. L. Rev. 51 1949-1950
THE UNITED STATES SUPREME COURT: 1948-49 5I
small point, will serve as a model of the full exploration of the social im-
plications of a statute in aid of its interpretation.
2
'
6
Perhaps the most mysterious intellectual episode of the year was Jus-
tice Murphy's dissent without opinion in the Hirota case.
2
'7 The dissent
presumably means that he felt the petition should have been received; but
it is. impossible, for this commentator at least, even to conceive of a theory
on which the Supreme Court might have had jurisdiction, and it would
have been interesting to know what Justice Murphy had in mind. But if
there was necessary lack of clarity in this dissent without opinion, there
was no such confusion in Murphy's dissent with opinion in Wolf v. Colo-
rado,2'8 the case dealing with state searches and seizures and due process.
As has been noted above, this dissent, from the standpoint both of prose
and technical presentation, is one of the rare great opinions.
Without attempting to appraise the significance of Justice Murphy's
work in terms of his opinions during the years that he served on the Court,
his death is likely to have the most substantial consequences on the
growth of public law, particularly in the :field of civil rights. The balance of
the court on so many matters had stood at :five-to-four that the replace-
ment of any of the Justices is a matter of utmost consequences. Justice
Murphy's consistent support of the most liberal point of view both in the
:field of civil rights and matters of economic regulation means that the new
Justice, Clark, will almost certainly move the Court in a more conservative
direction.
Justice Jackson stood out at the r948 term as the author of several sig-
nificant opinions and as a writer of striking judicial prose. A major victory
for views he has consistently expounded was Hood&- Sons v. DuMond,''
9
invalidating a New York order denying a license to a person seeking to
gather milk and ship it out of state. The denial was held an unconstitu-
tional burden on commerce. Justice Jackson, until the appointment of the
present Chief Justice who shares his position, had been the Court's strong-
est exponent of the view that the Court should put its whole weight
against state laws regulating commerce. In this case he carried a majority
21
6 Lawson v. Suwanee Fruit & S.S. Co., 336 U.S. 198 (1949).
21
7 Hirota v. MacArthur, 69 S. Ct. 1238 (1949). The petitioners applied for leave to file ap-
plications for the writ of habeas corpus in the Supreme Court. The case does not fall in any of
the branches of the categories of original jurisdiction named in the Constitution, and there is
no known appellate jurisdiction over the Japanese military tribunal in the Supreme Court. If
the case were to be heard in any American court, it would presumably have to begin in a dis-
trict court, as was done in form in Ex parte Quirin, 317 U.S. I (1942). Justice Douglas in his
concurrence suggests this procedure.
218
69 S. Ct. 1359 (1949).
219
336 U.S. 525 (1949).
HeinOnline -- 17 U. Chi. L. Rev. 52 1949-1950
THE UNIVERSITY OF CHICAGO LAW REVIEW
of five closer to his own point of view than the Court had previously been.
He also wrote an opinion giving extended and careful consideration to the
role of character witnesses in federal courts.o Either of these would serve
as his strongest opinion of the year, while his reputation is likely to gain
the least from his opinion in the District of Columbia diversity jurisdic-
tion case.n
As has been noted before, Justice Jackson is probably the least "legal"
member of the Court-the most inclined to guide his judgments by no-
tions of social expediency and practicality: This philosophy was par-
ticularly apparent in the constitutional field this year, when he advocated
different rules of reasonableness for searches and seizures depending upon
the gravity of the crime charged;
223
when he advocated as an antidote to
the large number of unsolved murders much wider latitude for police in
attempting to get confessions, even though he conceded that his policy
"largely negates the benefits of the constitutional guaranty of the right to
assistance of counsel" ;
22
4 and when he advocated virtual suspension of
freedom of speech when necessary to aid the police in keeping order.s
Justice Rutledge enjoys his work most thoroughly when he can examine
a large mass of precedents from which he can skilfully choose a line to fol-
low. Two opinions this year gave him that opportunity. One, Oklahoma
Tax Comm'n v. Texas Co.,
226
overruled certain precedents holding that the
states could not tax oil produced by the lessees of Indian lands. The other
held the FELA and the Boiler Inspection Act applicable to industrial dis-
eases."27
That Rutledge is not doctrinaire was illustrated by his two opinions re-
jecting claimed abuses of civil rights despite his obvious predilections in
behalf of such claims."
28
The process of case by case determination some-
times makes it difficult for him to make up his mind at all, and he is the
only member of the Court who occasionally concurs "dubitante."
9
In the
220
Michelson v. United States, 335 U.S. 469 (1948).
m Nat. Mut. Ins. Co. v. Tidewater Co., 69 S. Ct. II73 (1949).
=See the 1946 Term Article, at 46-47.
22
3 McDonald v. United States, 335 U.S. 451 (1948); Brinegar v. United States, 69 S. Ct.
1302 (1949).
22
4 See discussion note 124 supra and text.
:usTerminiello v. Chicago, 69 S. Ct. 894 (1949).
226 336 U.S. 342 (1949).
22
7 Urie v. Thompson, 69 S. Ct. 1018 (1949).
22
s Frazier v. United States, 335 U.S. 497 (1948); Brinegar v. United States, 69 S. Ct. 1302
(1949).
22
9 See, e.g., Ry. Express Agency v. New York, 336 U.S. ro6 (1949); Ex parte Collett, 335
U.S. 897 (1949), and related cases.
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THE UNITED STATES SUPREME COURT: 1948-49 53
Hirota case, which the Court disposed of very quickly, he reserved "deci-
sion and the announcement of his vote until a later time,""
30
and at the
close of the term had not yet announced it. Yet the existence of honest
doubts, hesitantly resolved, should not give the impression of aimlessness.
The Rutledge opinion in the Interstate Oil Pipeline Co/3
1
case drives hard
to the objective of upholding state taxing power, and a dissent in the
sound truck case'
3
" gives a flat answer to the argument of Justice Frank-
furter that the Bill of Rights and the Court do not give a" preferred posi-
tion" to freedom of speech, press and assembly. On fundamentals, once
his mind is made up, Justice Rutledge shows no hesitancy at all.
Justice Burton wrote seven opinions of the Court this year, more than
in previous years; but the thin docket and his status as junior Justice com-
bined to give him no cases as broadly significant as his renegotiation cases
of the preceding term'3
3
or the National Lead"
3
4 case at the 1946 term. The
three leading Burton opinions were United States v. Wittek,"
35
holding the
District of Columbia Emergency Rent Act inapplicable to government
owned housing; Grand River Dam Authority v. Grand Hydro,3
6
dealing
with state eminent domain proceedings and the Federal Power Act; and
his dissent in Estate of Spiegel v. Comm'r.31 The Wittek case is of consider-
able practical significance to government low-rent housing in the District,
and is written with sensitive perception of the squalor in the alleys of the
nation's capital.
The Burton opinions are usually extremely long because of the inclu-
sion of matter which another Justice might well have thought either ob-
vious or irrelevant. Comm'r v. J acobson'
38
will serve as an example. A tax-
payer had issued bonds secured by a trust deed on certain property. At a
time when the taxpayer was in straitened financial circumstances but was
not insolvent, he bought back some of these bonds at less than their fair
value. The issue in the case was whether the difference between what he
paid to retire his own paper and what it was worth should be treated as
taxable income. Section 22(a) of the Internal Revenue Code includes
within the definition of "gross income" all "gains ... from any source
2
3 Hirota v. MacArthur, 69 S. Ct. 197, 198 (1948).
2
3' Interstate Oil Pipeline Co. v. Stone, 69 S. Ct. 1264 (1949).
2
3
2
Kovacs v. Cooper, 336 U.S. 77 (1949). Reel, op. cit. supra note 214, pays strong tribute
to Justice Rutledge's hard-hitting qualities.
2
33 Lichter v. United States, 334 U.S. 742 (1948).
2
34 United States v. Nat. Lead Co., 332 U.S. 319 (1947).
2
35 336 U.S. 931 (1949).
2
37 335 U.S. 701, 708 (1949).
236
335 u.s. 359 (1948).
238
336 u.s. 28 (1949).
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54 THE UNIVERSITY OF CffiCAGO LAW REVIEW
whatever." Section 22(b), however, excludes "gifts." The court below
held that the benefit to the taxpayer on the bond purchases was excluded
from gross income as a gift from the bondholders under Section 22(b).
The leading previous case was Helvering v. American Dental Co.,
3
9 which
the Tax Court and the Court of Appeals attempted to follow; and the
technical issue of the case thus became whether the bond purchases were
gifts within the American Dental rule.
Justice Burton's opinion occupies twenty-two columns of the Supreme
Court Reporter. The introduction and the facts occupy seven columns and
include a detailed description of the method of bond repurchase and of the
circumstances of the bond issue, although the ultimate decision is not
made to depend on most of the facts discussed. Four columns follow show-
ing that the transactions create gross income within the meaning of Sec-
tion 22(a), including more than two columns of quoted regulations and
Code, although the applicability of Section 22(a) does not appear to have
been doubted at any point below, and in any case the question is complete-
ly closed by several decisions. Note 2 sets out at length the applicable pro-
visions of the Code and note I6 sets out at almost a column's length the
comparable provisions of the Revenue Act of 1916, although no conten-
tion of any kind relates to that Act. The discussion of Section 22(b) oc-
cupies eleven columns. The American Dental case, the applicability of
which was the only substantial point which had troubled the lower courts,
is finally distinguished in one sentence in the last paragraph.
It would be misleading to leave the impression that all of Justice Burton's
opinions were in the pattern just described. For example, the Wittek, Grand
River, and Spiegel opinions mentioned above are not. What is more impor-
tant, Justice Burton writes progressively fewer "Jacobson type" opinions
as he adjusts to his judicial career.
VI. CONCLUSION
The life of an institution, like the life of man, knows quiet times. The
1948 term was such a time, a year with only that minimum of excitement
which necessarily comes to the highest Court. With few exceptions, for the
great mass of the American people life will run on about as if the Court
had been in recess for a year.
Perhaps this is more than happenstance, a quirk of the cases which
chanced to come up for decision. In part, of course, the decline in the
docket is caused by the relaxation of regulatory activities of the govern-
ment. But, and this is more important, perhaps we are witnessing the in-
39 318 u.s. 322 (1943).
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THE UNITED STATES SUPREME COURT: 1948-49 55
evitable result of the twelve year policy of judicial self -denial which began
as a response to events of 1936 and 1937. Years of judicial deference to the
executive, to legislatures, and to administrative agencies may result finally
in the abandonment of recourse to the judges. In a democracy where only
judges serve for life, may it not be the ultimate triumph of the "New Deal
judges" that they have shifted the real controversies of our time to agen-
cies closer to the electorate?