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The Rights of Majorities and of Minorities in the 1961 Term of the Supreme Court1
Published online by Cambridge University Press: 01 August 2014
Extract
But for two decisions, the 1961 term of the Supreme Court could have been characterized as one of the least interesting in recent years. Apart from Baker v. Carr and Engel v. Vitale no decision stands out as a major interpretation either of the Constitution or of national or state legislation. Not that there was any shortage of constitutional cases. In at least thirty such the Court gave decisions and written opinions. In a number of instances, some of which will be examined presently, acts of state legislation were held invalid. Some 63 cases involved the interpretation of acts of Congress; in none was a statute held unconstitutional. There was, in other words, a continuation of the point of view which the Court adopted in the spring of 1937, rather than a hostile disposition toward both state and national legislation dealing positively with the social and economic problems coming in the wake of that new (to the United States) combination of factors, the industrialization of much of the country and the acceptance of most assumptions of nineteenth century humanitarianism.
Last year Professor McCloskey, writing in this Review on the 1960 term, quite properly limited himself to the consideration of cases dealing with civil rights. Yet before Charles Evans Hughes became Chief Justice in 1930, so few such cases arose that no one would have devoted even a major portion of an annual survey to them. Indeed, before the Civil War there was only one obscure case in which an act of a territorial legislature was held void as contrary to the guarantees of civil rights in the Constitution, and none involving either Congressional or state legislation. A few emerged in the decade after that War, but it was only with such cases as Strormberg v. California, Near v. Minnesota, Powell v. Alabama, Grosjean v. American Press Co., and DeJonge v. Oregon that the Supreme Court actively began to be the guardian of civil liberties.
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- Copyright © American Political Science Association 1963
Footnotes
1
For a full review of the decisions of the Supreme Court in the 1961 term see “The Supreme Court: 1961 Term,” Harvard Law Review, Vol. 76 (Nov., 1962) pp. 54–222; and Philip B. Kurland, ed., 1962 The Supreme Court Review (Chicago, 1962).
Reviews of some books and lists of other books and articles dealing with the work of the Court and published during the past year will be found in this Review, Vol. 56, no. 1, pp. 172–174, 184–186 (March, 1962); no. 2, pp. 717–719, 734–735 (June, 1962); no. 3, pp. 427–428, 460–461, 473–474 (June, 1962); no. 4, p. 1010 (Dec, 1962).
References
2 369 U.S. 186 (1962).
3 370 U.S. 421 (1962).
4 This figure includes per curiam decisions, but does not include the far more numerous Memorandum Cases in which the Court is ordinarily passing upon petitions for writs of certiorari or, more rarely, habeas corpus, or dealing with motions for rehearing or for the dismissal of appeals from lower federal or state courts.
5 McCloskey, Robert G., “Deeds Without Doctrines: Civil Rights in the 1960 Term of the Supreme Court,” this Review, Vol. 56 (03, 1962), pp. 71–89 Google Scholar.
6 Webster v. Reid, 11 Howard 437 (1851).
7 283 U.S. 359 (1931).
8 283 U.S. 697 (1931).
9 287 U.S. 45 (1932).
10 297 U.S. 233 (1936).
11 299 U.S. 353 (1937).
12 Engel v. Vitale, above, note 3.
13 323 U.S. 214 (1944).
14 327 U.S. 1 (1946).
15 Baker v. Carr, above, note 2.
16 Brown Shoe Co. v. United States, 370 U.S. 294 (1962).
17 Cf., e.g., Lewis, Anthony, “The Supreme Court and its Critics,” Minnesota Law Review, Vol. 45, pp. 305–332 (01, 1961)Google Scholar. He contrasts the number and proportion of dissents in the 1959 and the 1931 terms. The figures for the 1961 term are much the same as those for 1959.
18 Unhappily, in two or three dissenting opinions the author descends to something describable as sophomoric sarcasm.
19 Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429, 158 U.S. 601 (1895).
20 198 U.S. 45 (1905).
21 Notably, United States v. Butler, 297 U.S. 1 (1936).
22 369 U.S. 186 (1962).
23 Brown v. Board of Education, 347 U.S. 483 (1954).
24 1 Cranch 137 (1803).
25 Dred Scott v. Sanford, 19 Howard 393 (1857).
26 10 Howard 821 (1850).
27 369 U.S. 186, 187–188 (1962).
28 Ibid. 188–189. Under the existing apportionment the largest district in the lower house had a population of 79,301, the smallest 3,454. See the National Municipal League figures given in its Compendium on Legislative Apportionment (2d ed. 1962)Google Scholar. It is indicated in footnote 4 that Tennessee had long ago given up counting qualified voters as the basis for distribution of legislative seats and had accepted instead the United States census—in other words, population—because the number of qualified voters had proved too difficult to ascertain with any degree of accuracy. This change from voters to persons does not appear to have been a contested issue in either state or federal courts.
29 369 U.S. 186, 188.
30 Footnote 15 makes clear the exclusive reliance upon the equal protection clause. Neither the due process clause nor the state constitutional requirement is the basis for decision.
31 7 Howard 1 (1849).
32 328 U.S. 549.
33 287 U.S. 1 (1932). This case, like Colegrove, and also like Carroll v. Baker, 285 U.S. 380 (1932), Koenig v. Flynn, 285 U.S. 375 (1932), and Smiley v. Holm, 285 U.S. 355 (1932), involved a Congressional statute establishing standards to be followed by state legislatures in the construction of Congressional districts. In Baker the issue is the relative population of districts for the election of members of the state legislature.
34 285 U.S. 355 (1932).
35 328 U.S. 549, 552, 554, 556.
36 Ibid., pp. 566–574.
37 Ibid., pp. 564–566.
38 The concurring opinion of Mr. Justice Stewart is an exception. It is brief.
39 369 U.S. 186, 206.
40 Article IV §4. Mr. Justice Brennan always refers to the “Guaranty Clause.” In Mr. Justice Frankfurter's dissent it is the “Guarantee Clause.”
41 369 U.S. 186, 210. See also the summation of this part of the opinion, ibid., p. 217.
42 Ibid., p. 226.
43 Ibid.
44 Ibid.
45 364 U.S. 339 (1960).
46 Ibid., p. 349. Mr. Justice Douglas, though not, somewhat surprisingly, Mr. Justice Black, concurs in an opinion of one sentence which expresses his adherence to the dissents in Colegrove v. Green, 328 U.S. 549 (1946) and South v. Peters, 339 U.S. 276 (1950). Ibid., p. 348.
47 369 U.S. 186, 250.
48 Ibid., note 5.
49 Ibid., pp. 251–255. His characterization of Mr. Justice Frankfurter's dissent begins with the tactful comment that it is “bursting with words that go through so much and conclude with so little.” Ibid., p. 251.
50 Ibid., p. 254.
51 Ibid., pp. 258–259.
52 Ibid., p. 262.
53 Ibid., p. 265; cf. ibid., p. 332.
54 It is his last signed opinion. He became ill shortly after Baker was announced and was unable to participate in subsequent cases of the term. His retirement was announced 08 29, 1962.
55 The second sentence of his opinion makes this very clear: “The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative regulation. …” Ibid., p. 267.
56 Ibid.
57 Ibid., p. 268.
58 Ibid., p. 270.
59 Ibid., pp. 277 ff.
60 Ibid., p. 285.
61 Ibid., p. 289.
62 Ibid., p. 321.
63 Ibid., p. 330.
64 Ibid., p. 332.
65 Ibid., pp. 334–338.
66 Ibid., p. 339.
67 Ibid., pp. 340–349.
68 Scholle v. Hare, 369 U.S. 429 (1962).
69 W.M.C.A. Inc. v. Simon, 370 U.S. 190 (1962). For material on the merits at an earlier stage of this litigation see Silva, Ruth C., “Reapportionment of the New York State Legislature,” this Review, Vol. 55 (12 1961), pp. 870–881 Google Scholar.
70 Mr. Justice Harlan dissented in both the New York and the Michigan cases.
71 David, Paul T. and Eisenberg, Ralph, State Legislative Redisricting (Public Administration Service, Chicago), p. 2 Google Scholar. This study is the most comprehensive I have seen. It is a sequel to the same authors' admirable Devaluation of the Urban and Suburban Vote, Vol. I (1961), Vol. II (1962)Google Scholar, published by the Bureau of Public Administration, the University of Virginia.
72 David, and Eisenberg, , State Legislative Re-districting, p. 2 Google Scholar.
73 Ibid., p. 11.
74 Ibid., p. 8.
75 Address quoted ibid., p. 11. See also Barrett, Charles A., “Reapportionment and the Courts,” State Government, Vol. 35, pp. 138–143 (Summer, 1962)Google Scholar. Mr. Barrett is the Assistant Attorney General of California. He argues that the guarantee of a “republican form of government” would seem “clearly to protect this aspect of traditional American government.” The California Senate bears no relation to population, to put it mildly. The notion that the guarantee of a “republican form of government” requires inequality of representation in the upper house of the state legislature is, of course, ridiculous. The guarantee clause was intended to protect against monarchy, hereditary rule, or a military coup d'état, not to underwrite existing ratios of representation in state legislatures—or existing restrictions on the suffrage. It is indeed a strange conception of a republican form that allows an obscure rural county one senator for a population of 14,294 and Los Angeles County one senator for over 6,000,000.
76 Friedelbaum, Stanley H., “Baker v. Carr: the New Doctrine of Judicial Intervention and its Implications for American Federalism,” Univ. of Chicago Law Review, Vol. 29 (Summer, 1962), pp. 673, 703 CrossRefGoogle Scholar. A variety of approaches to the issues involved is to be found in the excellent “Symposium on Baker v. Carr” in the Yale Law Journal for 11, 1962 (Vol. 72, pp. 7–106)Google Scholar. See also Dixon, Robert G. Jr., “Legislative Apportionment and the Federal Constitution,” Law and Contemporary Problems, Vol. 27 (Summer, 1962), pp. 329–407 CrossRefGoogle Scholar; McCloskey, Robert G., “Foreword: The Reapportionment Case,” Harvard Law Review, Vol. 76 (11, 1962), pp. 54–74 CrossRefGoogle Scholar; Silva, Ruth C., “Apportionment in New York,” and “Apportionment of the New York Assembly,” Fordham Law Review, Vols. 30, 31 (April, 10, 1962), pp. 581–650, 1–72Google Scholar, and the same author's “Legislative Apportionment and the Federal Constitution” in Law and Contemporary Problems, Vol. 27 (Summer, 1962), pp. 329–389 CrossRefGoogle Scholar.
77 Engel v. Vitale, 370 U.S. 421 (1962).
78 343 U.S. 306 (1952).
79 333 U.S. 203 (1948). Cf. Fordham Law Review, Vol. 30 (04, 1962), pp. 801, 803 Google Scholar.
80 370 U.S. 421, 422. The majority opinion and the concurring opinion of Mr. Justice Douglas differ on the role of the teacher. (For the latter see pages 108–109 below). The New York Court of Appeals did not rule on what was required of the teacher other than to say that the local school board “gave instructions to the teaching staff to adopt the practice in the district's schools.” 176 N.E. 2d 579, 580 (1961).
81 Ibid., p. 422.
82 See note 2 pp. 423–424. A brief amici curiae, urging affirmance of the New York decision, was filed by the attorneys general of Nevada and 22 other states.
83 370 U.S. 421, 425.
84 Ibid., pp. 430–431. Compare the dissenting opinion of Judge Dye in the New York Court of Appeals, 176 N.E. 2d 579, 586: “It is a form of State-sponsored religious education.”
85 Ibid., p. 434.
86 Ibid., p. 435.
87 Ibid., p. 436.
88 Ibid., pp. 437–444.
89 343 U.S. 306.
90 330 U.S. 1.
91 370 U.S. 421, 443.
92 Ibid., p. 441.
93 Ibid., p. 438.
94 Ibid., pp. 444–445.
95 Ibid., p. 445.
96 Ibid., pp. 446–449. Like Justice Black, Justice Stewart does not mention the two leading cases on the meaning of the establishment clause, Everson v. Bd. of Education, 330 U.S. 1 (1947) and McCollum v. Bd. of Education, 333 U.S. 203 (1948). He does quote from West Va. Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), which deals with the free exercise, not the establishment clause.
97 Mr. Justice Stewart quotes this clause from the opinion in Zorach v. Clauson, 343 U.S. 306, 313 on p. 450 of his dissenting opinion. It is also quoted by its author, Mr. Justice Douglas, on p. 442. It is regrettable that so many of those who are usually among the first to champion the rights of minorities seem oblivious of the rights of those minorities to whom a prayer to be recited by students each day in a public school is a violation of their feelings and beliefs. Even Reinhold Niebuhr urges that local communities be allowed to work out their own solutions to such differences, a position he would never support if the rights of racial minorities, or minority groups espousing heterodox economic or political ideas, were involved. Moreover, he advocates this latitude for school boards in the name of pluralism, as well as localism. He urges judicial self-restraint upon the Court, and deplores the extension of the 14th Amendment to “administrative procedure,” especially when the local regulation is not “clearly in violation of the Constitution.” Christianity and Crisis, Vol. 22 (07 23, 1962), pp. 125–126 Google Scholar. With this lack of sympathy for religious minorities (and imperfect acquaintance with the history of the 14th Amendment) contrast that of a leader of the Los Angeles bar, Ely, Walter, “The President's Page,” Los Angeles Bar Bulletin, Vol. 37 (09, 1962), pp. 375–377 Google Scholar.
98 370 U.S. 421, 434.
99 Note 21 on p. 435.
100 This phrase from a reply by Jefferson to an address to him by the Danbury Baptist Association was quoted by Chief Justice Waite in Reynolds v. U.S., 98 U.S. 145, 164 (1878), and again by Justice Black in Everson, 330 U.S. 1, 16.
101 The Court on October 8, 1962 took jurisdiction of cases from Pennsylvania and Maryland involving these state requirements.
102 Bailey v. Patterson, 369 U.S. 31 (1962).
103 Turner v. Memphis, 369 U.S. 350 (1962).
104 365 U.S. 715 (1961).
105 Garner v. Louisiana, 368 U.S. 157 (1961).
106 See also Taylor v. Louisiana, 370 U.S. 154 (1962).
107 Among the cases of the term dealing with one or another aspect of this issue and coming from state courts are Hamilton v. Alabama, 368 U.S. 52 (1961), Chewning v. Cunningham, 368 U.S. 443 (1962), and Carnley v. Cochran, 369 U.S. 506 (1962).
108 369 U.S. 438 (1962).
109 Ibid., p. 448.
110 368 U.S. 448 (1962).
111 370 U.S. 139 (1962).
112 367 U.S. 643 (1961).
113 370 U.S. 139, 143.
114 370 U.S. 660 (1962).
115 Ibid., p. 689.
116 370 U.S. 478 (1962).
117 18 U.S.C. §1461.
118 Roth v. U.S., 354 U.S. 476 (1957).
119 Quoted from Marcus v. Search Warrant of Property, 367 U.S. 717, 731 (1961).
120 368 U.S. 231 (1961).
121 339 U.S. 382 (1950).
122 Douglas, J., dissenting. 368 U.S. 231, 261–267.
123 Brennan, J., ibid., pp. 267–277.
124 Cramp v. Board of Public Instruction, 368 U.S. 278 (1961).
125 368 U.S. 436 (1962).
126 369 U.S. 749 (1962).
127 370 U.S. 717 (1962).
128 369 U.S. 84 (1962).
129 328 U.S. 256 (1946).
130 369 U.S. 111 (1962).
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