¹ Clinton Rossiter has remarked: “Were the Presidents of the last fifty years to be polled on this question, all but one or two, I am sure, would agree that the ‘natural obstinacy’ of the average bureau chief or commissioner or colonel was second only to the ‘ingrained suspicions’ of the average congressman as a check on the President's ability to do either good or evil.” The American Presidency (New York, 1956), pp. 40–41Google Scholar. For more detailed discussions of the problems involved here, consult Truman, David, The Governmental Process (New York, 1951)Google Scholar, chs. 13–14, and works cited. For an analogy in prison administration, see Sykes, Gresham, The Society of Captives (Princeton: Princeton University Press, 1958), pp. 53–58Google Scholar. Even the Soviet system has similar problems of “family relationships” in administrative management: Moore, Barrington, Terror and Progress USSR (Cambridge: Harvard University Press, 1954)CrossRefGoogle Scholar.

² Fenno, Richard F. Jr., “President-Cabinet Relations: A Pattern and a Case Study,” this Review, Vol. 52 (1958), pp. 388, 404Google Scholar. (Italics in original omitted.)

³ Much lower court leeway is created by the fact that since Supreme Court opinions often represent a compromise among divergent approaches and views of individual Justices, there are sometimes multiple threads running through an official opinion which are inconsistent with the dominant pattern of thought. Even where a judge wishes to hew strictly to the High Court's line he may be left in doubt as to what was dogma and what was dicta. Mason's, Alpheus T.Harlan Fishe Stone: Pillar of the Law (New York: The Viking Press, 1956)Google Scholar is studded with examples of opinion compromises. See especially the intra-Court memoranda and draft opinions in Home Building and Loan Association v. Blaisdell, 290 U. S. 398 (1934), and Colgate v. Harvey, 296 U. S. 404 (1935), found at pp. 360–365 and pp. 399–402 of Mason's book.

⁴ Note, “Evasion of Supreme Court Mandates in Cases Remanded to State Courts since 1941,” Harvard L. Rev., Vol. 67, p. 1251 (1954)CrossRefGoogle Scholar; Note, “Supreme Court Disposition of State Decisions Involving Non-Federal Questions,” Yale L. J., Vol. 49, p. 1463 (1940)CrossRefGoogle Scholar. In keeping with his controversial constitutional theories, W. W. Crosskey disputes the basic concept of dual jurisdiction. Politics and the Constitution (Chicago: University of Chicago Press, 1953)Google Scholar, especially ch. 25. For a full explanation of the contrary view, read the dissenting opinion of Mr. Justice Frankfurter in Irvin v. Dowd, 3 L. ed. 2d 900 (1959).

⁵ For historical accounts of state court defiance of Supreme Court decisions, see Warren, Charles, “Federal and State Court Interference,” Harvard L. Rev., Vol. 43, p. 345 (1930)CrossRefGoogle Scholar; and Note, “Interposition v. Judicial Power,” Race Rel. L. Rep., Vol. 1, p. 465 (1956)Google Scholar.

⁶ Resolutions Adopted at the Tenth Annual Meeting of the Conference of Chief Justices (Chicago: Council of State Governments, mimeo., 1958)Google Scholar.

⁷ Note, Harvard L. Rev., cited above, note 4.

⁸ Ashcraft v. Tennessee, 322 U. S. 143 (1944); 327 U. S. 274 (1946). The intervening Tennessee decisions are unreported.

⁹ Wieman v. Updegraff, 344 U. S. 183 (1952).

¹⁰ The lower court decision is unreported. The details can be found in the follow-up case of the same title, 301 P. 2d 1003 (Sup. Ct. of Okla., 1956).

¹¹ Brown v. Board, 347 U. S. 483 (1954); 349 U. S. 294 (1955).

¹² Chief Judge Frederick W. Brune of Maryland, chairman of the Chief Justices' committee which prepared the critical report, has officially denied that any attack on the School Cases was intended. (New York Times, January 8, 1959, 30:1Google Scholar.) There can be no doubt, however, that the Supreme Court's racial decisions had a great deal to do with the attitude of the state judges. See the speech of Charles Alvin Jones, Chief Justice of Pennsylvania, reported in Harvard L. Record, October 23, 1958.

¹³ McKinney v. Blankenship, 282 S.W. 2d 691 (Sup. Ct. of Texas, 1955); Constantian v. Anson County, 93 S.E. 2d 163 (Sup. Ct. of No. Car., 1956); Florida ex rel. Hawkins v. Board, 83 So. 2d 20 (Sup. Ct. of Fla., 1955); Roy v. Brittain, 297 S.W. 2d 72 (Sup. Ct. of Tenn., 1956).

¹⁴ The extreme example is that of the Birmingham, Alabama, judge who not only refused to follow the Supreme Court's racial decisions but also declared the Fourteenth Amendment unconstitutional. (New York Times, March 23, 1957, 14:4–5.Google Scholar) Perhaps the most vindictive remarks from the bench about the Supreme Court in its current crisis were made by the Alabama judge whose decision regarding voluntariness of a confession had been reversed in Fikes v. Alabama, 352 U. S. 191 (1957): “The opinion is the voice of the Supreme Court of the United States, but the hand is the hand of the NAACP. The opinion of the majority of the Court speaks the truth neither as to the facts nor as to the law. The opinion offends and is repugnant to judicial sensibilities.” Quoted in 103 Cong. Rec. 4012 (85th Cong., 1st Sess., March 19, 1957).

¹⁵ Bissell v. Commonwealth, 100 S.E. 2d 1 (Sup. Ct. of Appeals of Va., 1957); North Carolina v. Cooke, 193 S.E. 2d 846 (Sup. Ct. of No. Car., 1958); State v. Clyburn, 101 S.E. 2d 295 (Sup. Ct. of No. Car., 1958).

¹⁶ Joyner v. Board, 92 S.E. 2d 795 (Sup. Ct. of No. Car., 1956); Defabio v. Fairfax County, 100 S.E. 2d 760 (Sup. Ct. of Appeals of Va., 1957).

¹⁷ Williams v. Georgia, 88 S.E. 2d 376 (Sup. Ct. of Ga., 1955); Naim v. Naim, 90 S.E. 2d 849 (Sup. Ct. of Appeals of Va., 1956).

¹⁸ Florida ex rel. Hawkins v. Board, 347 U.S. 971 (1954).

¹⁹ 83 So. 2d 20, 23 (1955).

²⁰ 350 U. S. 413 (1956).

²¹ 93 So. 2d 354, 358 (1957).

²² 349 U. S. 375, 391 (1955).

²³ Supra note 17.

²⁴ After the second decision of the Georgia supreme court, the U. S. Supreme Court denied certiorari, 350 U. S. 950 (1956).

²⁵ Quoted in Haynes, George H., The Senate of the United States: Its History and Practice (Boston, 1938), II, 722Google Scholar.

²⁶ 354 U. S. 298 (1957).

²⁷ Fujimoto v. United States, 251 P. 2d 342, 342 (1958). The other two circuit judges specifically disassociated themselves from these comments on the Yates case.

²⁸ October 24, 1958, pp. 36–37.

²⁹ 28 U. S. C. §331 provides that every year the Chief Justice of the United States shall call a meeting of the chief judges of each circuit, the chief judge of the Court of Claims, and a district judge from each circuit. This conference is directed to make a survey of the business of the courts of the United States and to submit to Congress a report including any suggestions for improvements. 28 U. S. C. §333 establishes similar rules for a judicial conference in each circuit. See Parker, Judge John J., “The Integration of the Federal Judiciary,” Harv. L. Rev., Vol. 56, p. 563 (1943)CrossRefGoogle Scholar.

³⁰ Annual Report of the Proceedings of the Judicial Conference of the United States (Washington, 1958), p. 28Google Scholar. Earlier recommendations are summarized in House Report No. 1293 on H.R. 8361, 85th Cong., 2d Sess. This report lists and discusses the various Supreme Court rulings which would have been modified by the proposed bill. The bill did not pass the 85th Congress, and in 1959 the Judicial Conference shifted its position, endorsing instead a proposal which would have modified lower court habeas corpus procedure while leaving intact the substance of Supreme Court decisions in this area. (New York Times, April 29, 1959, 18:6–7.Google Scholar)

³¹ 354 U. S. 449 (1957).

³² 318 U. S. 332 (1943).

³³ 354 U. S. 449, 454 (1957).

³⁴ Ibid., at 453.

³⁵ A number of bills to reverse the Mallory decision were introduced in the 85th Congress. H.R. 11477 passed both the House and Senate, but in somewhat different forms. The conference report was agreed to by the House, but was defeated in the Senate minutes before final adjournment when Senator Carroll (D., Colo.) raised a point of order which Vice President Nixon sustained.

³⁶ Washington Post & Times Herald, May 9, 1958.

³⁷ Letter of Judge Alexander Holtzoff to General Counsel of the Senate Subcommittee on Improvements in the Federal Criminal Code, January 21, 1958.

³⁸ Senate Subcommittee on Constitutional Rights, Hearings on Confessions and Police Detention, 85th Cong., 1st Sess. (March 7, 11, 1958), p. 4Google Scholar.

³⁹ Senate Hearings, supra note 38, contain a collection of 13 lower court decisions, many of them otherwise unreported, interpreting Mallory. For other opinions applying or avoiding that case, read: United States v. White, 153 F. Supp. 809 (1957); United States v. Valente, 155 F. Supp. 577 (1957); United States v. Hodges, 156 F. Supp. 313 (1957); United States v. Armpriester, 156 F. Supp. 134 (1957); Mullican v. United States, 252 F. 2d 398 (1958); Smith v. United States, 254 F. 2d 751 (1958); Edwards v. United States, 256 F. 2d 707 (1958); Washington v. United States, 258 F. 2d 696 (1958).

Confessions were ruled admissible in 16 of these 21 cases.

⁴⁰ 258 F. 2d 685 (1958).

⁴¹ United States v. Heideman and Brennan, 21 P.R.D. 335, 337 (1958).

⁴² Ibid., 338.

⁴³ Ibid., 340.

⁴⁴ Perkins v. Bndicott Johnson, 128 F. 2d 208, 218 (1942). The Supreme Court affirmed this decision, 317 U. S. 501 (1943).

⁴⁵ Minersville School District v. Gobitis, 310 U. 8. 586 (1940).

⁴⁶ Jones v. Opelika, 316 U. S. 584, 623–624 (1942).

⁴⁷ Barnette v. West Virginia, 47 F. Supp. 251, 253 (1942). It is worth noting that it had been Parker's strict adherence to Supreme Court precedent in an anti-labor case some fifteen years earlier which had alienated organized labor and helped defeat Senate confirmation of his nomination to the Supreme Court. The case was United Mine Workers v. Red Jacket Consolidated Coal & Coke Co., 18 F. 2d 839 (1927). For details see Subcommittee of the Senate Committee on the Judiciary, Hearings on the Confirmation of Hon. John J. Parker, 71st Cong., 2d Sess. (April 5, 1930).

⁴⁸ In Gardella v. Chandler, 172 F. 2d 402 (1949), Judge Frank thought that the Supreme Court had turned into an “impotent zombi” its 1922 decision (Federal Baseball Club v. National League, 259 U. S. 200) that professional baseball was beyond the scope of congressional regulatory power, and consequently outside the reach of the Sherman Act. In 1953, however, the Supreme Court continued baseball's anti-trust immunity, though not affirming all that the earlier case had implied. Toolson v. New York Yankees, 346 U. S. 356. Even more to the point was the slap the Court administered in Spector Motor Service v. McLaughlin, 323 U. S. 101 (1944). A majority of the Court of Appeals for the Second Circuit (including Judge Frank) had detected a “new doctrinal trend” of the Supreme Court regarding state taxation of interstate commerce, and invalidated a Connecticut tax. In reversing this decision, the majority opinion, written by Justice Frankfurter, rebuked the lower court for its over-hasty anticipation.

⁴⁹ As Judge Chase of the Second Circuit said, dissenting from one of Jerome Frank's opinions: “… we should not be astute in seeking to anticipate that the court which has the power to do so will change that decision. To do so would not only be an unwarranted attempt to usurp the authority of that court but would make its task in general much more difficult …. [U]ntil, and unless, we are advised by competent authority that it is no longer the law we should continue to abide by it.” Gardella v. Chandler, 172 F. 2d 402, 405 (1949). Cf. the opinion for the Court of Appeals for the Seventh Circuit in Aetna Portland Cement v. FTC, 157 F. 2d 533 (1946).

Learned Hand apparently took a middle position between his brethren on the Second Circuit. “I agree that one should not wait for formal retraction in the face of changes plainly foreshadowed …. Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant; on the contrary I conceive that the measure of its duty is to divine, as best it can, what would be the event of an appeal in the case before it.” Dis. op. in Spector Motor Service v. Walsh, 139 F. 2d 809, 823 (1944).

⁵⁰ “The Trials and Tribulations of an Intermediate Appellate Court,” Cornell L. Q. Vol. 44, pp. 1, 4 (1958)Google Scholar.

⁵¹ Ibid., p. 7. The Supreme Court case in question was Bull v. United States, 295 U. S. 247 (1935).

⁵² Loc. cit., p. 10. The case referred to was Grimes v. Raymond Concrete Pile Co., 245 F. 2d 437 (1957); reversed, 356 U. S. 252 (1958).

⁵³ 163 U. S. 537 (1896).

⁵⁴ Flemming v. South Carolina Gas & Electric Co., 128 F. Supp. 469, 470 (1955). After the Court of Appeals reversed Timmerman, 224 F. 2d 752 (1955), he tried to salvage something by ruling that if not currently law, at least Plessy had been law at the time the bus dispute had begun. 1 Race Rel. L. Rep. 679 (1956). This, too, was reversed, 239 F. 2d 277 (1956). See also Timmerman's bitter statements dissenting in Bryan v. Austin, 148 F. Supp. 563 (1957).

Not to be outdone by Timmerman's bon mot about buses and personality, Judge Walter Hoffman of the U. S. District Court for Eastern Virginia, in throwing out a suit against segregated rest rooms in a state courthouse, remarked: “The underlying reasons for the rejection of the ‘separate but equal’ doctrine would not appear to be applicable to toilet facilities ….” Dawley v. Norfolk, 159 F. Supp. 642, 648 (1958). In spite of this sardonic piece of humor, Hoffman has rigidly followed the letter and spirit of Brown v. Board.

^54a See especially Frank, Jerome, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1950)Google Scholar. The Supreme Court, however, has not always felt itself bound by lower court findings of fact. The older cases on this point are collected in Annotations at 49 L. ed. 546 and 58 L. ed. 1245. Among the more recent decisions asserting the right of the Court to review and reevaluate facts as well as law are: Truax v. Corrigan, 257 U. S. 312 (1921); Norris v. Alabama, 294 U. S. 587 (1934); United States v. Appalachian Power Co., 311 U. S. 377 (1940); Smith v. Allwright, 321 U. S. 649 (1944); Craig v. Harney, 331 U. S. 367 (1947); Niemotko v. Maryland, 340 U. S. 268 (1951); Feiner v. New York, 340 U. S. 315 (1951); Kern-Limerick v. Scurlock, 347 U. S. 110 (1954); Michel v. Louisiana, 350 U. S. 91 (1955); Konigsberg v. State Bar, 353 U. S. 252 (1957).

⁵⁵ Cooper v. Aaron, 3 L. ed. 2d 5 (1958).

⁵⁶ Bell v. Rippy, 146 F. Supp. 485, 486 (1956). The earlier decision is reported at 133 F. Supp. 811 (1955), and the reversal, sub nom. Brown v. Rippy, at 233 F. 2d 796 (1956). This second decision, of course, was also reversed, sub nom. Borders v. Rippy, 247 F. 2d 268 (1957), but this did not end the matter. Atwell immediately went to the opposite extreme and ordered Dallas schools integrated in the middle of the academic year. 2 Race Rel. L. Rep. 985 (1957). This decision was also reversed by the Court of Appeals, 250 F. 2d 690 (1957).

⁵⁷ In the case which originated in Prince Edward County, Virginia, the district judge in 1958 set 1965 as the date for compliance, 164 F. Supp. 786 (1958). The Court of Appeals reversed, and ordered admission of qualified Negro students to hitherto white schools in September 1959, 266 F. 2d 507 (1959). The county replied in June, 1959 by refusing to appropriate money for continued operation of public schools. For a discussion of various private school plans, consult Murphy, Walter F., “Private Schools with Public Funds?”, Journal of Politics, Vol. 20 (1958), p. 635CrossRefGoogle Scholar; for current developments see the Southern School News (Nashville, Tenn., monthly).

⁵⁸ Cooper v. Aaron, 257 F. 2d 33 (1958).

⁵⁹ Cooper v. Aaron, supra note 55.

⁶⁰ Supra note 22. Compare the similar conciliatory efforts in Deen v. Hickman, 3 L. ed. 2d 28 (1958).

⁶¹ Florida ex rel Hawkins v. Board, 355 U. S. 839 (1957).

⁶² Even this victory is significant for the thesis of this article. The federal district court first refused to allow Hawkins to introduce any evidence. The Court of Appeals reversed, Hawkins v. Board, 253 F. 2d 752 (1958). The final result of nine years of litigation was an injunction forbidding the University to deny entrance to its graduate schools because of race. The district court, however, refused to order Hawkins's admission, 162 F. Supp. 851 (1958).

⁶³ Cooper v. Aaron, supra note 55, at 16. (Citations omitted.)

⁶⁴ Derrington v. Plummer, 240 F. 2d 922 (1956); Department of Conservation v. Tate, 231 F. 2d 615 (1956).

⁶⁵ Barrows v. Jackson, 346 U. S. 249 (1953).

⁶⁶ Yates v. United States, 356 U. S. 363 (1958).