Truman Reshapes the Supreme Court

by IRVING DILLIARD

1

TOM CLARK’S elevation from Attorney General to the Supreme Court seat of the late Justice Frank Murphy promises to have more effect on the most vital work of our highest tribunal — the disposition of Bill of Rights cases — than any other replacement in a long time. This prospect of notable change is not lessened by the more recent death of Justice Wiley B. Rutledge and the subsequent promotion of Judge Sherman Minton from the Federal Court of Appeals at Chicago. On the contrary, the succession of the former Senator from Indiana to the Rutledge place on the bench only emphasizes the basic shift that may well come as a result of Clark’s accession to the seat of Murphy.

Every year American citizens carry up through the hierarchy of courts their claims that the government— Federal, state, or municipal — has violated their constitutional rights. Every year the Supreme Court justices split wide apart in deciding some of the most important of these civil liberties cases. Not infrequently these decisions are by the hairline margin of 5 to 4. This means that a citizen’s right to speak freely or to worship in his own way or to enjoy the protection of a fair trial turns on the interpretation of a single member of the Supreme Court in a surprisingly large number of cases.

As I see it, there is not the slightest doubt that, in this new term, cases of this sort cases that make the United States of America a free nation will be decided one way and not the other simply because of the accident of Frank Murphy’s death and the appointment and confirmation of Tom Clark as his successor. The Fourth Amendment’s constitutional guarantee against “unreasonable searches and seizures,” for example, will mean much or little depending on whether Justice Clark lines up with President Truman’s first two appointces, Justice Harold H. Burton of Ohio and Chief Justice Fred M. Vinson of Kentucky.

For nearly a decade Frank Murphy was the most devoted defender of human rights on the supreme bench. As Attorney General and as Justice, he burned with zeal for the liberty of the citizen, however humble that citizen’s station in life.

These are not surmises. They are facts which are readily documented. Writing in the Cornell Law Quarterly three years ago, Vincent M. Barnett, Jr., pointed out that in “some 77 cases involving alleged violations of civil liberties from the time he came to the bench in February 1940, through the spring of 1946.”Justice Murphy “cast his vote 61 limes in behalf of the right alleged to have been infringed.”

Tom Clark’s record on human liberties comes mighty close to being the direct opposite. Before he became Attorney General, he was lent to the Department of Justice to assist in the removal of persons of Japanese extraction from the Pacific coast to inland internment camps. He takes pride in that use ol force to displace thousands of residents of the Failed States. Not so President Truman’s own Committee on Civil Bights. In its historic report of 1947, this group of distinguished Americans described the removal of these citizens from their homes as the most striking interference since slavery with the right to physical freedom.

Under Tom Clark the Department of Justice filed many suits which gave rise to civil rights issues. A lot of these eases went on to the Supreme Court for final determination. Presumably Tom Ulark saw no violation of civil rights in these suits or he would not have filed them. He also allowed the Department’s civil rights section to lapse into relative inactivity. This section, which, was organized by Frank Murphy in his short tenure as Attorney General, was intended to be a vigilant, vigorous instrument for the protection of the rights of citizens. In Tom Clark’s four years it won just one important civil rights case — that against the enforceability of racial restrictions on real estate.

The only way to appreciate what a key place Justice Clark occupies is to see his seat not only in terms of the record of his predecessor, but also in the light of the performance of the first and second Truman appointees. Justice Burton, a colleague of Truman on the Senate War Investigating Committee, was appointed in 1945 upon the resignation of Owen J. Roberts. Chief Justice Vinson, a close friend of Truman, was chosen in 1946 to succeed Harlan F. Stone.

Thus, the 1946-1947 term was the first in which the first and second Truman appointees served together. It was a term with outstanding civil rights decisions on which the Justices divided. These included the newspaper contempt-of-court case from Corpus Christi, Texas, the New Jersey school bus case, and the Harris search case from Oklahoma. They also included the Carter, Payne, and Foster right-to-counsel cases from Illinois and the Adamson case, which upheld a California prosecuting attorney in his comment to a jury that a defendant had not taken the witness stand to testify in his own defense. In Federal courts no such comment is permitted since the Fifth Amendment protects a defendant against the compulsion of testimony against himself in criminal cases.

It is illuminating to see how the nine Justices divided in ihese split civil rights cases. Lest someone object that a mere layman is bound to lose himself in this technical legal field, let me say that I have checked my study of such cases with John P. Frank, who has just gone to the Yale Law School from Indiana University, where he began a series of annual reviews of the grist of the Supreme Court for the University of Chicago Law Review. After coming into agreement with Professor Frank, I have arranged this record, term after term, into box scores. My box scores list the Justices in the order in which they supported civil rights claims.

Here is the lineup for the first Vinson-Burton term (1946-1947) in split civil rights cases: —

The extreme divergence in this table is amazing. In almost every instance Justices Rutledge and Murphy sustain the view of the protesting citizen that his right was trampled by some unit of government. Not once does Chief Justice Vinson lake that view; not once does Harlan Stone’s successor vote for the invoked civil right as Harlan Stone so often did.

This does not mean, of course, that the Justices who voted in support of the claimed right in nonunanimous decisions always were fair and just in doing so. Neither does it mean that those who voted against the right invoked always were wrong. It does, however, suggest a difference in attitudes — a striking difference in what seems right to the Supreme Court judges.

Let us turn to the second Vinson-Burton term. We find these attitudes, for the most part, confirmed, though there is one notable instance of modification. This time there are more than double the number of split civil rights cases in the previous term. The 27 such cases include the celebrated separation of Church and State case which Mrs. Vashti McCollum, a freethinker, appealed from Champaign, Illinois, where “released time” sectarian instruction was maintained in the public schools. They include also free speech, racial discrimination, right to counsel, and still other search and seizure cases. Here is how the Justices stood in the 1947-1948 term: —

In this second Vinson-Burton term we find that Chief Justice Vinson and Justice Stanley Reed are again in eighth and ninth places. The only difference is that the order is reversed. Justices Rutledge, Murphy, Douglas, and Black are again first, second, third, and fourth. Justice Burton drops from fifth to seventh, thus changing places with Justice Frankfurter.

This fact about Justice Frankfurter is particularly interesting. For while these cases clearly looked much like those in the previous term to Justices at the top of the box score and also to the Justices at the bottom, they apparently looked very different to the former Harvard Law professor. Justice Frankfurter’s record of 2 to 10 becomes in 19471948 a record of 12 to 15. It is the difference between 1 to 5 and 4 to 5. And that is a big difference.

Now let us look at the standings for 1948-1949, the term which ended last June. The non-unanimous civil rights decisions number 18. Among others there is the widely noted Terminiello case, in which a nolable free speech victory was won by the narrow margin of 5 to 4. The box score for ihe last term is as follows: —

President Truman’s first appointee, Justice Burton, has now dropped to the bottom of the list, with Chief Justice Vinson next to the bottom. The top four are again the top four though the order is shaken up a bit. Most interesting of all perhaps is the record of Justice Frankfurter. He is not only established as the middle man, but this time has a record of upholding the invoked right just as many times as he denied it. With a 9 to 9, he is now a long way from his 2 to 10 record of two terms earlier.

When we merge the compilations for the three terms, as follows: —

we really see what Justice Murphy meant to the protection of civil rights. In a total of 57 split decisions in Bill of Rights cases, he votes to uphold the claimed right 53 times. Only Justice Rutledge runs him close. These two, with Justices Douglas and Black, make up the four who supported the claimed right more times than not.

But the weight is against them. Though Justice Frankfurter’s three-term average is much more favorable to individual freedom than in the first and second Vinson-Burton terms, he sides against the claimed right more often than he supports it. Even so, he actually is the “swing" Justice. It is below him where the citizen really loses out — with Justices Jackson, Burton, Reed, and Vinson.

Certainly 57 cases, over a period of three years, are ample to show how such issues shape up in a Justice’s mind and heart.

As I wrote at the outset, the replacement of Rutledge with Minion only underlines all this. The box scores show Rutledge to be almost as steady as Murphy in supporting the civil rights claimed by the citizens, and from the standpoint of Bill of Rights issues the loss of Rutledge is hardly less than the loss of Murphy.

Minton was on the appellate bench lor eight years, but in that time be wrote no important civil liberty opinion such as Rutledge did while on the similar Federal court for the District of Columbia. Outwardly, at least, Minton’s chief qualification was this substantial tenure on the bench ranking one level below the Supreme Court. His appointment was a promotion from the lower courts, and that was something for which many critics of the Roosevelt and Truman appointments had been calling for a decade. There were of course other considerations. One of these certainly was the fact that Harry Truman and “Shay” Minton were freshmen Senators together back in 1935.

Minton probably feels closer to Black than to any other Justice. Black was in the Senate when Minton arrived there. They served in the Roosevelt ranks until Black was appointed to the supreme bench in 1937. The prospect is that the newest Justice will be looking to the senior member for at least some measure of guidance in his first term. Beyond that it would be foolish to forecast. But even if Minton should agree with Black in every split civil rights case, still the Rutledge replacement would not equal the Rutledge impact in these cases in the past. Our composite box score shows Black voting to uphold the claimed right 39 times to Rutledge’s 52. We can say with positiveness that the death of Rulledge so soon after the death of Murphy just doubles the loss to citizens who invoke the guaranties of the Bill of Rights.

2

THE use of numbers has limitations, as the most devoted statistician must in the end agree. Cases are not exact equals in importance. When the facts are different the issues may vary also. Some judges are less constant in their views than are certain of their colleagues on the bench. Still other changing factors may enter in. But let us not wave these tables aside as unimportant.

The very fad that a case has been carried upward through the court system to our judicial apex is in itself some measure of the case’s importance — at least to the pressers of the suit. Unquestionably this is true in civil liberties eases, and it is on split-decision civil rights cases that we are centering our attention. The decision in many of these cases determines whether a man will go to prison. It decides whether he will continue to be a convict behind bars which may have confined him unjustly through his adult life. It rules whether he is to have another trial or perhaps go free —or whether he L to die in ihe electric chair or mount the gallows stair to the hangman’s noose. It speaks the final order in issues of free speech and religion and assembly, and in the security of the citizen in his own home against trespass by unbridled authority. To some men and women these rights are more precious than life itself.

Now and then a civil liberties case involves someone whose name is well known. For the most part such cases arise around people whose names are unknown at the beginning of their litigation. They often concern persons of little financial means.

How then do these unknown, oftentimes indigent petitioners make their way over the uneasy road to the Supreme Court? They make it because they have a case or strongly think they have a case and others join them in their conviction. Here one lawyer and there another who believes intensely in his own responsibility in his profession will take up issues of human rights. Such a lawyer will devote himself, perhaps entirely without financial compensation, to seeing the case through to a decision at the highest judicial level. Sometimes a newspaper will take the lead in calling attention to a grievous flouting of the Bill of Rights. Sometimes it is a layman or an organization of laymen. In any event, the cases are not handled in any automatic way, as much of the legal work of large corporations is handled. These Bill of Rights cases represent belief, deep feeling, apprehension, or despair about basic things. These cases need not be precisely equal to be worth an inventory.

Someone may point out that Chief Justice Vinson and Justice Black were agreed in the school bus case in favor of allowing state payments to the parents of parochial school children, that they were together in opposition to released-time sectarian classes in public schools, and that they parted company in the free speech case of Father Terminiello. Does this not make it plain, some member of the bar may ask, that nothing of value is to be concluded from grouping cases and aligning Justices for statistical review?

The question should answer itself. Obviously not much is to be told by only three cases. But a great deal may be learned from a study of twenty times three. Who would say that since three roll calls give little insight into the voting attitudes of a member of Congress, sixty roll calls would be no more informative?

Judges generally do not like to be put in tables. They may prefer to think that the work they do cannot be counted up in columns of figures. No impertinence is intended in the suggestion that they had better begin to get used to some numerical analysis. Legal scholars are using it and doubtless they are going to use it more and more.

In the main I agree with the Justices who are zealous in the protection of the rights of the citizen. I credit the Justices at the bottom of the box score with being for something, too — orderly government, perhaps. But we make our choices, and I choose to be with those who put the rights of the individual first. In short, I think that if an error is to be made, we should be sure that we make it on the side of the preservation and application of t he Bill of Rights.

There is in all this situation of course a very large inconsistency. President Truman is on record as the bravest supporter of civil rights this country has had in the Presidency since Lincoln freed the slaves. In 1947 he released at the White House the report of the President’s Committee on Civil Rights. This report and the stand the Democratic, national convention took in its behalf in the platform on which Harry Truman was nominated at Philadelphia in 1948 amount to one of the greatest risks in American political history. It was certain to have angry repercussions in the traditional Democratic stronghold — the South. These repercussions were so great that they produced the Dixiecrat rebellion which cost the President the electoral votes of Alabama, Louisiana, Mississippi, and South Carolina. This stand was reiterated in the new Democratic Congress notwithstanding the threat of filibuster — a threat fulfilled with unhappy consequences to the Fair Deal legislative program.

These are the proclaimed civil rights principles of the Truman administration. How are they to be reconciled with the astonishing civil rights box scores of Chief Justice Vinson and Justice Burton? How do they harmonize with the elevation of Tom Clark, under whom the so-called loyalty program has harassed many citizens and organizations against whom no charges have been brought?

It may be that the President does not realize that the conflict exists. This may be just one more instance of the disconnected, if generally well-intentioned, kind of government the Truman administration provides. But whatever the explanation, this particular inconsistency is a dangerous one. Not to know about it is to invite it to run on and on until it does perhaps irreparable harm to the most cherished of American institutions — the Bill of Rights.

In such a situation there shines a ray of hope. This is that Justices Frankfurter, Jackson, and Reed will begin to side with the citizen oftener than they have in the last three terms.

What if the bottom four Justices stay put and Tom Clark joins them? Let that come about and the Supreme Court after twelve years of Roosevelt and four of Truman —after sixteen years of combined New Deal and Fair Deal — will be less concerned about the rights of individual citizens than it was when an economic conservative like Republican Justice George Sutherland wrote Bill of Rights decisions in the Scottsboro Fair trial and the Huey Long press gag cases.

What a bitter irony that will be.