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Constitutional Law in 1956–1957

Published online by Cambridge University Press:  02 September 2013

David Fellman
David Fellman
Affiliation:
University of Wisconsin
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Extract

Two changes in the personnel of the United States Supreme Court occurred during the 1956 Term. Justice Sherman Minton, appointed by President Truman in 1949, retired on October 15, 1956, at the age of sixty-five, for reasons of health. Prior to his appointment to the Court, Justice Minton had served as U. S. Senator from Indiana and had spent eight years on the Court of Appeals for the Seventh Circuit. To take his place President Eisenhower gave a recess appointment to William Joseph Brennan, Jr., who took the oath of office on October 16, at the age of fifty. A native of Newark and a graduate of the University of Pennsylvania and of the Harvard Law School, he had served by appointment in 1949 on the New Jersey Superior Court, was advanced to the Appellate Division in 1950, and was appointed to the state Supreme Court in 1952. Justice Brennan was a Democrat, a Catholic, (the first since Justice Frank Murphy, who died in 1949), and the son of an Irish immigrant; and his appointment was announced just three weeks before the presidential election of 1956.

Type
Research Article
Information
American Political Science Review , Volume 52 , Issue 1 , March 1958 , pp. 140 - 191
Copyright
Copyright © American Political Science Association 1958

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14 354 U. S. 363 (1957).

15 Executive Order 10241, 16 Fed. Reg. 3690 (1951). The original standard for refusing employment or for removal was that “on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.” Executive Order 9835, 12 Fed. Reg. 1935, 1938 (1947). On April 21, 1951, President Truman changed the standard to “reasonable doubt as to the loyalty of the person involved.” It is clear, as Seth W. Richardson, then Chairman of the Loyalty Review Board, declared, that the purpose of this change in the standard was to lessen the degree of proof; it is easier to justify a doubt than to support a positive finding. See Richardson, , “The Federal Employee Loyalty Program,” Columbia Law Review, Vol. 51, p. 555 (May, 1951)CrossRefGoogle Scholar.

16 65 Stat. 581, Sec. 103.

17 U. S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). See this Review, Vol. 50, pp. 56–57 (March, 1956).

18 354 U.S. 178 (1957). Contempt citations were also set aside in Flaxer v. United States, 354 U.S. 929 (1957) and Sacher v. United States, 354 U. S. 930 (1957), which involved witnesses who had refused to answer questions put to them by the Senate Internal Security Subcommittee, and in Barenblatt v. United States, 354 U.S. 930 (1957), which concerned a witness before the House Committee on Un-American Activities. The per curiam opinions in these cases merely invoked the teaching of the Watkins case. See: Chase, Harold W., “Improving Congressional Investigations: A No-Progress Report,” Temple Law Quarterly, Vol. 30, pp. 126–155 (Winter, 1957)Google Scholar; Cahen, Donald M., “Congressional Investigations and the Privileges on Confidential Communications,” California Law Review, Vol. 45, pp. 347–362 (July, 1957)CrossRefGoogle Scholar; Pollitt, Daniel H., “Pleading the Fifth Amendment Before a Congressional Committee: A Study and Explanation,” Notre Dame Lawyer, Vol. 32, pp. 43–84 (December, 1956)Google Scholar; Note, “The Power of Congress to Investigate and to Compel Testimony,” Harvard Law Review, Vol. 70, pp. 671–685 (February, 1957)CrossRefGoogle Scholar; Wittenberg, Philip, The Lamont Case: History of a Congressional Investigation (New York, 1957)Google Scholar.

19 2 U.S.C. §192.

20 352 U.S. 1 (1956).

21 354 U.S. 298 (1957).

22 Especially in Gitlow v. New York, 268 U.S. 652 (1925), where the statute was nearly identical with the Smith Act.

23 Dennis v. United States, 341 U.S. 494 (1951).

24 64 Stat. 987, §4(f): “Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.”

25 Schneiderman v. United States, 320 U.S. 118 (1943).

26 353 U.S. 391 (1957). See: Hook, Sidney, Common Sense and the Fifth Amendment (New York, 1957)Google Scholar; Note, “The Privilege Against Self-Incrimination in the Federal Courts,” Harvard Law Review, Vol. 70, pp. 1454–1465 (June, 1957)CrossRefGoogle Scholar; Ratner, Leonard G., “Consequences of Exercising the Privilege against Self-Incrimination,” University of Chicago Law Review, Vol. 24, pp. 472–511 (Spring, 1957)CrossRefGoogle Scholar; Rogge, O. John, “The New Federal Immunity Act and the Judicial Function,” California Law Review, Vol. 45, pp. 109–133 (May, 1957)CrossRefGoogle Scholar; Brandwen, Maxwell, “Reflections on Ullmann v. United States,” Columbia Law Review, Vol. 57, pp. 500–517 (April, 1957)CrossRefGoogle Scholar; Grant, J. A. C., “Federalism and Self-Incrimination,” UCLA Law Review, Vol. 4, pp. 549–582 (June, 1957)Google Scholar. See also: Bishop, Joseph W. Jr.,, “The Executive's Right of Privacy: An Unresolved Constitutional Question,” Yale Law Journal, Vol. 66, pp. 477–491 (February, 1957)CrossRefGoogle Scholar; Note, “Constitutional Aspects of Federal Tax Investigations,” Columbia Law Review, Vol. 57, pp. 676–699 (May, 1957)CrossRefGoogle Scholar.

27 354 U.S. 118 (1957).

28 354 U.S. 449 (1957).

29 McNabb v. United States, 318 U.S. 332 (1943).

30 352 U.S. 232 (1957).

31 Kremen v. United States, 353 U.S. 346 (1957). In Carroll v. United States, 354 U.S 394 (1957), the Court held that an order for the suppression of evidence on the ground that there had not been probable cause for the issuance of the arrest warrants, made by the federal district court upon a motion filed after indictment and in the district of trial, is not appealable either under general federal law or under the law of the District of Columbia. It was ruled that the order was not a final order, and was not sufficiently separable from and collateral to the criminal case itself. It was stressed that no specific statute authorizes such an appeal, and that in general appeals by the government in criminal cases are unusual, exceptional, and not favored. But an order for the suppression or return of illegally seized property is appealable at once where the motion is made before indictment, or in a different district from that in which the trial will occur. Where the motion to suppress, however, is made by the defendant after indictment and in the district of trial, the denial of such a pretrial motion in this posture is interlocutory in form and effect, and thus is not appealable by the defendant; since the rule operates equally where the motion is granted, it follows that the government cannot appeal. On the general subject see: Handler, Emmerich, “The Fourth Amendment, Federalism, and Mr. Justice Frankfurter,” Syracuse Law Review, Vol. 8, pp. 166–190 (Spring, 1957)Google Scholar.

32 352 U.S. 354 (1957). See Grant, J.A.C., “Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons,” UCLA Law Review, Vol. 4, pp. 1–37 (December, 1956)Google Scholar; Note, “The Right to a Speedy Criminal Trial,” Columbia Law Review, Vol. 57, pp. 846–867 (June, 1957)CrossRefGoogle Scholar.

33 Binion v. United States, 352 U.S. 1928 (1957). See Feldman, Edmund H. and Fleming, Maurice C., “Considerations in the Granting of Bail Pending Appeal in the Federal Courts,” George Washington Law Review, Vol. 25, pp. 693–703 (June, 1957)Google Scholar.

34 Ward v. United States, 1 L. Ed. 2d 25 (1956).

35 Ben Gold v. United States, 352 U.S. 985 (1957). The Court relied entirely upon Remmer v. United States, 350 U.S. 377 (1956).

36 28 U.S.C. §1915.

37 Johnson v. United States, 352 U.S. 565 (1957).

38 304 U.S. 458 (1938).

39 Theard v. United States, 354 U.S. 278 (1957).

40 Roviaro v. United States, 353 U.S. 53 (1957).

41 353 U.S. 657 (1957).

42 Public Law 269, 85th Cong., 1st Sess., 71 Stat. 595. In reliance upon the Jencks decision, a defendant charged with murder in Delaware sought pretrial inspection of statements of prospective witnesses, reports which the police had made in the course of their investigations, and the results of various tests. The Superior Court of Delaware held that the Jencks rule required disclosure only for impeachment purposes when the credibility of a witness has become an issue during the trial. State v. Thompson, 134 A. 2d 266 (Del. Super. Crt. 1957).

43 Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956). See this Review, Vol. 51, pp. 169–171 (March, 1956).

44 352 U.S. 901.

45 Reid v. Covert, 354 U.S. 1 (1957).

46 140 U.S. 453 (1891).

47 Downes v. Bidwell, 182 U.S. 244 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porte Rico, 258 U.S. 298 (1922).

48 252 U.S. 416 (1920).

49 Justice Black stressed the following precedents of the Court: Ex parte Milligan, 4 Wall. 2 (U.S. 1866), which held that military authorities were without power to try civilians not in military service by declaring martial law in an area where civil administration was functioning and the regular courts were open; Duncan v. Kahanamoku, 327 U.S. 304 (1946), which refused to sanction the military trial of civilians in Hawaii during the war although the government claimed it was necessary for defense; and U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955), which held that a military court could not constitutionally try a discharged serviceman for an offense committed while in the armed forces. See this Review, Vol. 51, pp. 167–169 (March, 1957).

50 354 U.S. 524 (1957). See Note, “Criminal Jurisdiction over American Armed Forces Abroad,” Harvard Law Review, Vol. 70, pp. 1043–1067 (April, 1957)CrossRefGoogle Scholar. For an interesting account of what happened see Hersey, John, “A Game on a Hill,” The New Yorker, December 7, 1957, pp. 57–85Google Scholar.

51 Lehmann v. United States ex rel. Carson, 353 U.S. 685 (1957); Mulcahey v. Catalanotte, 353 U.S. 692 (1957).

52 Rabang v. Boyd, 353 U.S. 427 (1957).

53 Brownell v. Tom We Shung, 352 U.S. 180 (1956).

54 Shaughnessy v. Pedreiro, 349 U. S. 48 (1955). See this Review, Vol. 50, pp. 54–55 (March, 1956).

55 352 U.S. 445 (1957).

56 Federal Baseball Club v. National League, 259 U.S. 200 (1922).

57 Toolson v. New York Yankees, 346 U.S. 356 (1953).

58 United States v. International Boxing Club, 348 U. S. 236 (1955).

59 United States v. Shubert, 248 U.S. 222 (1955).

60 353 U.S. 586 (1957).

61 California v. Taylor, 353 U.S. 553 (1957).

62 United States v. Ohio Power Company, 353 U.S. 98 (1957).

63 Sisniewski v. United States, 353 U.S. 901 (1957).

64 United States v. Witkovich, 353 U.S. 194 (1957). The same result was reached in Barton v. Sentner, 353 U. S. 963 (1957).

65 United States v. International Union, United Automobile Workers, 352 U. S. 567 (1957). The statute is 18 U.S.C. §610.

66 Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957).

67 Webb v. Illinois Central Railroad Co., 352 U.S. 512 (1957).

68 Herdman v. Pennsylvania Railroad Co., 352 U.S. 518 (1957).

69 Ferguson v. Moore-McCormaek Lines, Inc., 352 U.S. 521 (1957).

70 Ringhiser v. Chesapeake & O. R. Co., 354 U.S. 901 (1957).

71 353 U.S. 448 (1957). The same issues were resolved in the same way in the following companion cases: General Electric Co. v. Local 205, 353 U.S. 547 (1957); Goodall-Sanford, Inc. v. United Textile Workers, 353 U.S. 550 (1957). See Bickel, Alexander M. and Wellington, Harry H., “Legislative Purpose and the Judicial Process: The Lincoln Mills Case,” Harvard Law Review, Vol. 71, pp. 1–39 (November, 1957)CrossRefGoogle Scholar.

In Leedom v. International Union of Mine, Mill and Smelter Workers, 352 U.S. 145 (1956) and Amalgamated Meat Cutters v. NLRB, 352 U.S. 153 (1956), the Court held that the exclusive remedy for filing a false non-Communist affidavit under Section 9 (h) of Taft-Hartley was the criminal sanction provided for in the statute. The Court held that the NLRB could not impose the sanction of denying the union its benefits under the statute.

72 United States v. Western Pacific R. Co., 352 U.S. 59 (1956). See also the companion case, United States v. Chesapeake & O. R. Co., 352 U.S. 77 (1956) which involved a dispute over an export rate for the carriage of military supplies. In this instance, instead of referring the case to the ICC, the Court remanded to the court of appeals so that a determination might be made whether the issue of tariff construction was within the primary jurisdiction of the administrative body, since the parties had not briefed or argued the factors working for or against the application of the rate in question.

73 Smith v. Sperling, 354 U.S. 91 (1957). A similar conclusion was reached in a companion case, Swanson v. Traer, 354 U.S. 114 (1957). See Comment, “Diversity of Citizenship and the Real Party in Interest,” UCLA Law Review, Vol. 4, pp. 619–627 (June, 1957)Google Scholar.

74 Bank of America National Trust & Savings Assoc. v. Parnell, 352 U.S. 29 (1956).

75 353 U.S. 364 (1957).

76 354 U.S. 476 (1957). The Court also upheld, without writing an opinion, an ordinance of Newark, New Jersey, which put burlesque shows out of business. Adams Newark Theatre Co. v. City of Newark, 354 U.S. 931 (1957). See Foster, Henry H. Jr.,, “The ‘Comstock Load’—Obscenity and the Law,” Journal of Criminal Law, Criminology, and Police Science, Vol. 48, pp. 245–258 (September-October, 1957)CrossRefGoogle Scholar; Schmidt, Godfrey P., “A Justification of Statutes Barring Pornography from the Mails,” Fordham Law Review, Vol. 26, pp. 70–97 (Spring, 1957)Google Scholar; McKeon, Richard, Merton, Robert K. and Gellhorn, Walter, The Freedom To Read (New York, 1957)Google Scholar. For an important statement on the general problem of the suppression of obscenity, see the statement issued by the Roman Catholic Bishops of the United States, signed in their capacity as the Administrative Board of the National Catholic Welfare Conference, New York Times, November 17, 1957, p. 88Google Scholar. An unusually brilliant essay on the whole problem will be found in Gellhorn, Walter, Individual Freedom and Governmental Restraints (Baton Rouge, 1956)Google Scholar.

77 Regina v. Hicklin, Law Reports, 3 Q.B. 360, 371 (1868). Here Justice Cockburn said: “I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

78 352 U.S. 380 (1957).

79 354 U.S. 436 (1957).

80 Near v. Minnesota, 283 U.S. 697 (1931).

81 International Brotherhood of Teamsters v. Vogt, 354 U.S. 284 (1957).

82 354 U.S. 234 (1957). On the authority of this decision the Court reversed, without argument or opinion, a contempt conviction following the refusal of a witness to reply to questions put to him by the Ohio Un-American Activities Commission, in Raley v. Ohio, 354 U.S. 929 (1957).

83 353 U.S. 232 (1957).

84 Justice Frankfurter wrote: “History overwhelmingly establishes that many youths like the petitioner were drawn by the mirage of communism during the depression era, only to have their eyes later opened to reality. Such experiences no doubt may disclose a woolly mind or naive notions regarding the problems of society. But facts of history that we would be arbitrary in rejecting bar the presumption, let alone an irrebuttable presumption, that response to foolish, baseless hopes regarding the betterment of society made those who had entertained them but who later undoubtedly came to their senses and their sense of responsibility ‘questionable characters’.”

85 353 U.S. 252 (1957). See McTernan, John T., “Schware, Konigsberg and Independence of the Bar: The Return to Reason,” Lawyers Guild Review, Vol. 17, pp. 48–53 (Summer, 1957)Google Scholar.

86 Walker v. City of Hutchinson, 352 U.S. 112 (1956). See Note, “Requirements of Notice in In Rem Proceedings,” Harvard Law Review, Vol. 70, pp. 1257–1271 (May, 1957)CrossRefGoogle Scholar; Comment, “Notice by Publication: Walker v. City of Hutchinson,” University of Chicago Law Review, Vol. 24, pp. 553–561 (Spring, 1957)CrossRefGoogle Scholar.

87 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).

88 Huling v. Kaw Valley It. & Improv. Co., 130 U.S. 559 (1889).

89 Nelson v. New York, 352 U.S. 103 (1956).

90 See: Schaefer, Walter V., “Federalism and State Criminal Procedure,” Harvard Law Review, Vol. 70, pp. 1–26 (November, 1956)CrossRefGoogle Scholar; Gustafson, R. A., “Have We Created a Paradise for Criminals?” Southern California Law Review, Vol. 30, pp. 1–34 (December, 1956)Google Scholar; Willcox, Bertram P. and Bloustein, Edward J., “The Griffin Case—Poverty and the Fourteenth Amendment,” Cornell Law Quarterly, Vol. 43, pp. 1–26 (Fall, 1957)Google Scholar; Pollak, Louis H., “Proposals to Curtail Federal Habeas Corpus for State Prisoners: Collateral Attack on the Great Writ,” Yale Law Journal, Vol. 66, pp. 50–66 (November, 1956)CrossRefGoogle Scholar; Fellman, David, “Cruel and Unusual Punishments,” Journal of Politics, Vol. 19, pp. 34–45 (February, 1957)CrossRefGoogle Scholar; Coakley, James F., “Restrictions in the Law of Arrest,” Northwestern University Law Review, Vol. 52, pp. 2–15 (March-April, 1957)Google Scholar, Caleb Foote, “Safeguards in the Law of Arrest, ibid., pp. 16–46, Fred E. Inbau, “Restrictions in the Law of Interrogation and Confessions,” ibid., pp. 77–85, Samuel S. Leibowitz, “Safeguards in the Law of Interrogation and Confessions,” ibid., pp. 86–89.

91 352 U.S. 330(1957).

92 Fikes v. Alabama, 352 U.S. 191 (1957).

93 342 U.S. 165. See this Review, Vol. 47, p. 164 (March, 1953).

94 352 U.S. 432 (1957). See Parsons, Judson A. Jr.,, “State-Federal Crossfire in Search and Seizure and Self-Incrimination,” Cornell Law Quarterly, Vol. 42, pp. 346–373 (Spring, 1957)Google Scholar; Peterson, Virgil W., “Restrictions in the Law of Search and Seizure,” Northwestern University Law Review, Vol. 52, pp. 46–64 (March-April 1957)Google Scholar; Monrad G. Paulsen, “Safeguards in the Law of Search and Seizure,” ibid., pp. 65–76.

95 Chessman v. Teets, 350 U.S. 3 (1955). See this Review, Vol. 51, p. 186 (March, 1957).

96 Chessman v. Teets, 354 U.S. 156 (1957). See Davis, Kenneth Culp, “The Requirement of a Trial-Type Hearing,” Harvard Law Review, Vol. 70, pp. 193–280 (December, 1956)CrossRefGoogle Scholar.

97 Gayle v. Browder, 352 U.S. 903 (1956). See Papale, A. E., “Judicial Enforcement of Desegregation: Its Problems and Limitations,” Northwestern University Law Review, Vol. 52, pp. 301–319 (July-August, 1957)Google Scholar; Fairman, Charles, “The Attack on the Segregation Cases,” Harvard Law Review, Vol. 70, pp. 83–94 (November, 1956)CrossRefGoogle Scholar; Douglas, William O., “Interposition and the Peters Case, 1778–1809,” Stanford Law Review, Vol. 9, pp. 3–12 (December, 1956)CrossRefGoogle Scholar; Note, “Effect of School Assignment Laws on Federal Adjudication of Integration Controversies,” Columbia Law Review, Vol. 57, pp. 537–552 (April, 1957)CrossRefGoogle Scholar; Swisher, Carl Brent, “Dred Scott One Hundred Years After,” Journal of Politics, Vol. 19, pp. 167–183 (May, 1957)CrossRefGoogle Scholar. For current information about events on the desegregation front see the monthly issues of the Southern School News and the invaluable bi-monthly publication Race Relations Law Reporter. See particularly the following special studies in the Race Relations Law Reporter: “Class Actions: A Study of Group-Interest Litigation,” Vol. 1, pp. 991–1010 (October, 1956)Google Scholar; “Federal Jurisdiction: A Study of the Authorized Area of Action of United States Courts,” Vol. 2, pp. 269–285 (February, 1957)Google Scholar; “Exhaustion of Administrative Remedies,” Vol. 2, pp. 561–582 (April, 1957)Google Scholar; “The Eleventh Amend-ment,” Vol. 2, pp. 757–766 (June, 1957)Google Scholar.

98 353 U.S. 230 (1957). See Clark, Elias, “Charitable Trusts, the Fourteenth Amendment and the Will of Stephen Girard,” Yale Law Journal, Vol. 66, pp. 979–1015 (June, 1957)CrossRefGoogle Scholar; Shanks, Hershel, “‘State Action’ and the Girard Estate Case,” University of Pennsylvania Law Review, Vol. 105, pp. 213–240 (December, 1956)CrossRefGoogle Scholar; Horowitz, Harold W., “The Misleading Search for ‘State Action’ under the Fourteenth Amendment,” Southern California Law Review, Vol. 30, pp. 208–221 (February, 1957)Google Scholar.

99 Brown v. Board of Education, 347 U.S. 483 (1954). See this Review, Vol. 49, pp. 96–99 (March, 1955).

100 Morey v. Doud, 354 U.S. 457 (1957).

101 West Point Wholesale Grocery Co. v. Opelika, 354 U.S. 390 (1957). See the symposium on “State Taxation of Multistate Business” in Ohio State Law Journal, Vol. 18, pp. 3–104 (Winter, 1957)Google Scholar.

102 Nippert v. Richmond, 327 U.S. 416 (1946); Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U.S. 389 (1952).

103 Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957). In two companion cases, Amalgamated Meat Cutters v. Fairlawn Meats, 353 U.S. 20 (1957), and San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957), the Court held that by parity of reasoning the proviso must also exclude action by the state courts as well as by administrative agencies.

104 Miller v. Arkansas, 352 U.S. 187 (1956).

105 254 U.S. 51 (1920). In this case the Court set aside the conviction in the Maryland courts of an employee of the Post Office Department for driving without a state license.

106 Arnold v. Panhandle & Santa Fe Railway Co., 353 U.S. 360 (1957).

107 Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957).

108 Estin v. Estin, 334 U.S. 541 (1948). See this Review, Vol. 43, p. 308 (April, 1949)

109 Insofar as Thompson v. Thompson, 226 U.S. 551 (1913) held that an ex parte divorce destroys alimony rights it was overruled.