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Deeds Under a Doctrine: Civil Liberties in the 1963 Term*
Published online by Cambridge University Press: 02 September 2013
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Judged by any standards the 1963 term of the United States Supreme Court was one of momentous importance to the future of the American political system. Most immediately, the Justices once again found themselves embroiled in political controversy, their decisions attacked by the Republican party platform, by the Republican presidential candidate and by many members of Congress.
Among the more notable deeds of the 1963 term were decisions writing into the margins of the Constitution the formula “one man, one vote” as the proper rule for apportioning electoral districts for the House of Representatives and for both houses of state legislatures. The Court also invalidated two acts of Congress, and in the field of criminal justice introduced several new principles while overturning supposedly settled law. In addition the Court again struck down officially sanctioned prayers in public schools.
For its part, Congress seriously considered constitutional amendments to reverse the school prayer decisions of this and previous terms, and to modify the doctrine of the reapportionment cases. The House went so far as to pass a bill to remove from federal courts jurisdiction to hear apportionment suits.
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- Copyright © American Political Science Association 1965
References
1 For the school prayer amendments see Beiser, Edward and Beaney, William, “Prayers and Politics: The Impact of Engel and Schempp on the Governmental Process,” 13 Journal of Public Law (1965)Google Scholar. Among the more important of the proposed amendments to modify the reapportionment decisions were: H. J. Res. 1055 (McCulloch), S. J. Res. 181 (Stennis), and S. J. Res. 185 (Dirksen), all 88th Cong., 2d sess. Within a few weeks of the term's reapportionment decisions, at least 51 modifying constitutional amendments were introduced in Congress.
2 110 Cong. Rec. 15312 (daily ed.).
3 The major exceptions were: Rugendorf v. United States, 376 U. S. 528 (1964); Ungar v. Sarafite, 376 U. S. 575 (1964); United States v. Barnett, 376 U.S. 681 (1964); United States v. Healy, 376 U.S. 75 (1964); United States v. Tateo, 377 U.S. 463 (1964); United States v. Welden, 377 U.S. 95 (1964).
In this article I have not tried to summarize every civil liberties decision of the 1963 term. Tables I, II, and III below list all of these decisions, at least those decided by full opinion. For a more complete discussion see Note, “The Supreme Court, 1963 Term,” 78 Harvard Law Review 177 (1964)Google Scholar.
4 Arnold v. North Carolina, 376 U.S. 773 (1964); Coleman v. Alabama, 377 U.S. 129 (1964).
5 Jackson v. Denno, 378 U.S. 368 (1964). Except for two sentences in White's majority opinion, one might have said that constitutional standards would be met if a state required a jury to return a special verdict regarding the voluntariness of a confession. The two sentences read: “Jackson's position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt and innocence. So far we agree and hold that he is now entitled to such a hearing in the state court.” Ibid., at p. 394.
6 378 U.S. 1 (1964). See also Murphy v. Waterfront Commission, 378 U.S. 52 (1964).
7 211 U.S. 78 (1908).
8 United States v. Tateo, supra note 3.
9 So Justice Clark said in his opinion for the Court. United States v. Barnett, supra note 3 at 695 n.
10 Ungar v. Sarafite, supra note 3.
11 Panico v. United States, 375 U.S. 29 (1963).
12 367 U.S. 643 (1961).
13 Fahy v. Connecticut, 375 U.S. 85 (1963); Stoner v. California, 376 U.S. 483 (1964); Aguilar v. Texas, 378 U.S. 39 (1964).
14 Preston v. United States, 376 U.S. 364 (1964).
15 377 U.S. 201 (1964).
16 372 U.S. 335 (1963).
17 378 U.S. 478, 492 (1964).
18 Robinson v. Florida, 378 U.S. 153 (1964); Griffin v. Maryland, 378 U.S. 130 (1964). The ability of three Justices to impose their will on the other six may be the result of the so-called paradox of voting. See my Elements of Judicial Strategy (University of Chicago Press, 1964), pp. 85–7Google Scholar.
19 Bouie v. Columbia, 378 U.S. 347 (1964).
20 Barr v. Columbia, 378 U.S. 146 (1964).
21 378 U.S. 226 (1964).
22 109 U.S. 3 (1883).
23 371 U.S. 415 (1963). For a full analysis of this case, see Birkby, Robert and Murphy, Walter, “Interest Group Conflict in the Judicial Arena,” 42 Texas Law Review 1018 (1964)Google Scholar.
24 377 U.S. 1 (1964).
25 Liner v. Jafco, 375 U.S. 301 (1964); NLRB v. Fruit & Veg. Local, 377 U.S. 58 (1964); United Steelworkers v. NLRB, 376 U.S. 492 (1964).
26 372 U.S. 229 (1963).
27 Henry v. Rock Hill, 375 U.S. 6 (1963); Fields v. South Carolina, 375 U.S. 44 (1963).
28 A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Jacobellis v. Ohio, 378 U.S. 184 (1964).
29 Jacobellis v. Ohio, supra note 28.
30 NAACP v. Alabama, 377 U.S. 288 (1964). This time the Court's decision stuck and the injunction was lifted. Southern School News (October 1964), p. 7Google Scholar. For a discussion of the background of this litigation see Birkby and Murphy, op. cit. supra note 23 and my “The South Counter-Attacks,” 12 Western Political Quarterly, 371 (1959)CrossRefGoogle Scholar.
31 Baggett v. Bullitt, 377 U.S. 360 (1964).
32 376 U.S. 254, 279–80 (1964). See also Garrison v. Louisiana, 379 U.S. 64 (1964), and Kalven, Harry Jr., “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’” 1964 Supreme Court Review 191Google Scholar.
33 Davis v. Mann, 377 U.S. 678 (1964); Lucas v. Colorado, 377 U.S. 713 (1964); Maryland Commission v. Tawes, 377 U.S. 656 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Roman v. Sincock, 377 U.S. 695 (1964); WMCA v. Lomenzo, 377 U.S. 633 (1964); Swann v. Adams, 378 U.S. 553 (1964); Meyers v. Thigpen, 378 U.S. 554 (1964); Williams v. Moss, 378 U.S. 558 (1964).
34 Wesberry v. Sanders, 376 U.S. 1 (1964).
35 Davis v. Mann, Reynolds v. Sims, Roman v. Sincock, Williams v. Moss, all supra note 33.
36 Maryland Commission v. Tawes and Meyers v. Thigpen, both supra note 33.
37 376 U.S. 52 (1964).
38 375 U.S. 399 (1964).
39 Mrvica v. Esperdy, 376 U.S. 560 (1964), held that an alien had interrupted his residence in the United States and did not qualify as a permanent resident.
40 Communist Party v. United States, 331 F. 2d 807 (1964); cert, den., 377 U.S. 968 (1964). Cf. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961).
41 377 U.S. 402 (1964).
42 377 U.S. 163 (1964).
43 Costello v. Immigration and Naturalization Service, 376 U.S. 120 (1964).
44 375 U.S. 217 (1963).
45 315 F. 2d 673 (1963). See Roche, John P., “The Expatriation Cases,” 1963 Supreme Court Review 325Google Scholar.
46 Marks v. Esperdy, 377 U.S. 214 (1964).
47 Greene v. McElroy, 360 U.S. 474 (1959).
48 Greene v. United States, 376 U.S. 149 (1964).
49 Aptheker v. Rusk, 378 U.S. 500, 514 (1964).
50 Calhoun v. Latimer, 377 U.S. 263 (1964).
51 Griffin v. Prince Edward County, 377 U.S. 218 (1964).
52 Cooper v. Pate, 324 F. 2d. 165 (1963).
53 378 U.S. 546 (1964).
54 Marks v. Esperdy, supra note 45, is not counted here since it was a 4-4 decision, nor is Dresner v. Tallahassee, 378 U.S. 539 (1964), because it was not a decision on the merits, only a determination that there had not been a final decision by the highest state court. The cases in these three tables may be found in volumes 375–378 of the U.S. Reports. I have not listed here those decisions listed under “Memorandum Cases” by the Lawyers Cooperative Publishing Co. This classification does not always coincide with that used by the official reporter of the Supreme Court.
55 In Jackson v. Denno, supra note 5, for example, I have counted Black as voting for the civil liberties claim even though he filed a dissenting opinion. I did so because Black said he would have ruled the confession inadmissible because it was obtained under inherently coercive circumstances. Black also dissented from the majority view that a judge would be a better protector than a jury, in such cases, of the civil rights of a defendant. He took a similar position on the question of whether the judge or the jury should determine the existence of a clear and present danger. Dennis v. United States, 341 U.S. 494 (1951).
56 See his position in Beauharnais v. Illinois, 343 U.S. 250 (1952); Cantwell v. Connecticut, 310 U.S. 296 (1940); Feiner v. New York, 340 U.S. 315 (1951); and Terminiello v. Chicago, 337 U.S. 1 (1949). See also “Justice Black and First Amendment ‘Absolutes’: A Public Interview,” 37 New York University Law Review 549 (1962)Google Scholar.
57 326 U.S. 501 (1946).
58 319 U.S. 141 (1943).
59 The Frank Murphy Papers, Michigan Historical Collections, University of Michigan.
60 Lucas v. Colorado, supra note 33 at p. 748.
61 See my Elements of Judicial Strategy, supra note 18.
62 The Nature of the Judicial Process (Yale University Press, 1921), p. 12Google Scholar.
63 Arthur Miller contends that it is the political theory of Thomas Hill Green that is now triumphant on the Court. “An Affirmative Thrust to Due Process of Law,” 30 George Washington Law Review 399, 416–19 (1962)Google Scholar. While I do not agree with Miller on this point, I would like to express my general intellectual debt to this very suggestive article.
64 United States v. Carolene Products, 304 U.S. 144 (1938).
65 The details are given in Mason, Alpheus T., Harlan Fiske Stone: Pillar of the Law (New York, 1956), ch. 31Google Scholar.
66 See especially Mason, Alpheus T., The Supreme Court from Taft to Warren (Baton Rouge, Louisiana State University Press, 1958), chs. 5–6Google Scholar, and The Supreme Court: Palladium of Freedom (University of Michigan Press, 1962)Google Scholar.
67 Supra note 23.
68 Supra note 31.
69 Milk Wagon Drivers Union v. Meadowmoor Dairies, 317 U.S. 287, 302 (1941).
70 Supra note 34 at p. 17.
71 377 U.S. 163, 167 (1964). Goldberg had made this statement in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 (1963).
72 The reason for this overlap is explained in Mason, Harlan Fiske Stone, ch. 31.
73 For a perceptive critique of Stone's doctrine, see Braden, George, “The Search for Objectivity in Constitutional Law,” 57 Yale Law Journal 571 (1948)CrossRefGoogle Scholar.
74 Mason, The Supreme Court from Taft to Warren, chs. 5–6.
75 118 U.S. 356, 373–74 (1886).
76 328 U.S. 549 (1946).
77 Murphy Papers and the Harold H. Burton Papers, the Library of Congress, Washington, D. C. I am indebted to Mr. Edward Beiser of Princeton for this latter reference. My interpretation of Murphy's notes was that he first voted with Stone; but Burton's docket book records Murphy as passing and Burton's conference notes report Murphy voted with Douglas. These discrepancies indicate the difficulties the Justices must face in determining their colleagues' views, and serve also as a warning about the historical value of notes jotted down during a lively debate.
78 Simon, Yves, The Philosophy of Democratic Government (University of Chicago Press, 1951), p. 123Google Scholar, says that in a democratic society “deliberation is about means and presupposes that the problem of ends has been settled.”
79 See Shapiro, Martin, Law and Politics in the Supreme Court (New York, 1964)Google Scholar; and my “Congressional Reliance on Judicial Law-Making,” a paper delivered at the 1963 meetings of the American Political Science Association.
80 See my Congress and the Court (University of Chicago Press, 1962)Google Scholar.
81 See my Elements of Judicial Strategy.
82 For example: Colegrove v. Green, supra note 76; MacDougal v. Green, 325 U.S. 281 (1948); and South v. Peters, 339 U.S. 276 (1950). The other decisions are summarized in Lucas, Jo Desha, “Dragon in the Thicket,” 1961 Supreme Court Review 194Google Scholar.
83 Hartsfield v. Sloan, 357 U.S. 916 (1958).
84 It is very possible that in the sit-in cases White's values in the criminal justice field clashed with his values in the political freedom field. White voted to affirm the sit-in convictions in each decision that divided the Court.
85 See Dahl, Robert, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” 6 Journal of Public Law 279 (1957)Google Scholar; and Black, Charles, The People and the Court (New York, 1960)Google Scholar.
86 State courts have applied such standards as contiguity and compactness to districting, but these would hardly seem to make gerrymandering very difficult. See Lewis, Anthony, “Legislative Apportionment and the Federal Courts,” 71 Harvard Law Review 1057, 1066–70 (1958)CrossRefGoogle Scholar. For an analysis of some of the more commonly used apportioning formulae and suggestions for improvement, see: Clem, Alan L., “Measuring Legislative Malapportionment: In Search of a Better Yardstick,” 7 Midwest Journal of Political Science 125 (1963)CrossRefGoogle Scholar.
87 364 U.S. 339 (1960).
88 Supra note 37.
89 Much of the available evidence is summarized in Lipset, Seymour M., Political Man (New York, 1960), ch. 4Google Scholar.
90 Supra note 32.
91 New York Times, December 10, 1964, 23: 1. See also Talley v. California, 362 U.S. 60 (1960), invalidating a Los Angeles ordinance requiring that handbills disclose the name of the publisher and the distributor. For discussions of the serious nature of the problem of securing intelligent and thoughtful political debate, consult the two books by Kelley, Stanley Jr., Professional Public Relations and Political Power (The Johns Hopkins University Press, 1956)Google Scholar, and Political Campaigning (Washington, D.C., The Brookings Institution, 1960)Google Scholar; and Jonas, Frank, “The Art of Political Dynamiting,” 10 Western Political Quarterly 374 (1957)CrossRefGoogle Scholar.
92 See Wilson, James Q. and Banfield, Edward C., “Public-Regardingness as a Value Premise in Voting Behavior,” this Review, Vol. 58 (12 1964), pp. 876–887Google Scholar.
93 See 1961 U.S. Commission on Civil Rights Report (Washington, D.C., G.P.O., 1961), Bk IGoogle Scholar.
94 Georgia, for instance, in 1962 elected to its state legislature the first Negro since Reconstruction. Saye, Albert, “Revolution by Judicial Action in Georgia,” 17 Western Political Quarterly 10 (1964)CrossRefGoogle Scholar.
95 The New York office of the Anti-Defamation League has a thick file of newspaper reports and analyses of anti-semitism among Negroes. While this evidence is not conclusive in proving the widespread existence of anti-semitism among Negroes, it is still disconcerting to those who had hoped that the Negro would learn and profit from the experience of his white brethren. These reports would come as no surprise to those who accept the thesis of Frazier, E. Franklin in his Black Bourgeoisie (New York, 1957)Google Scholar.
For discussions of Negro-Jewish relations, see especially: Clark, Kenneth B., “Candor about Negro-Jewish Relations,” 1 Commentary 8 (02, 1946)Google Scholar; Baldwin, James, “The Harlem Ghetto: Winter 1948,” 5 Commentary 165 (02, 1948)Google Scholar; Glazer, Nathan, “Negroes and Jews: The New Challenge to Pluralism,” 38 Commentary (12, 1964)Google Scholar; and Hertz, R. C., “Rising Tide of Negro-Jewish Tensions,” 20 Ebony 117 (Dec., 1964)Google Scholar.
96 Direct evidence here is lacking. I say “seems” and base this statement on numerous newspaper stories in The New York Times and The Washington Post and Times-Herald during the fall of 1964 and on my own experience in working for the U.S. Civil Rights Commission in New Jersey.
97 See Wahlke, John, Eulau, Heinz, Buchanan, William, and Ferguson, LeRoy, The Legislative System (New York, 1962)Google Scholar.
98 For a related but somewhat different thesis, see Miller, op. cit., supra note 63.
99 “The Basic Doctrine of American Constitutional Law,” 12 Michigan Law Review 247 (1914)CrossRefGoogle Scholar.
100 For example: American Power & Light Co. v. SEC, 329 U.S. 90 (1946); Ferguson v. Skrupa, 372 U.S. 726 (1963); Interstate Natural Gas Co. v. FPC, 331 U.S. 682 (1947); Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954); Wickard v. Filburn, 317 U.S. 111 (1942).
101 See, for example: Steele v. L. & N. Rr., 323 U.S. 192 (1944); Tunstall v. Brotherhood, 323 U.S. 210 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Graham v. Brotherhood, 338 U.S. 232 (1949); Trainmen v. Howard, 343 U.S. 768 (1952); Barrows v. Jackson, 346 U.S. 249 (1953); Brown v. Board, 347 U.S. 483 (1954).
102 Boiling v. Sharpe, 347 U.S. 497 (1954).
103 “Equality in Governmental Action,” 39 New York University Law Review 205 (1964)Google Scholar. At one point Goldberg stated that he believes the framers of the Constitution “naturally assumed that [equality] was encompassed within the concept of liberty.” Ibid., p. 207. On this point, Kurland, Philip, “Equal in Origin and Equal in Title to the Legislative and Executive Branches of Government,” 78 Harvard Law Review 143 (1964)CrossRefGoogle Scholar, has angrily lashed back at Goldberg in particular and the recent work of the Court in general.
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