The Living Must Judge

The hands on the gilded clock stood precisely at noon when the court crier raised his sepulchral voice: "Oyez, oyez . . . draw near . . . God save the United States and this Honorable Court." Red curtains parted and into the hushed chamber walked the black-gowned justices of the Supreme Court of the U.S. Led by sad-faced Chief Justice Vinson, they took their high-backed seats, variously shaped and padded to fit their various curves.

Only William Orville Douglas, the justice with the cowlick and the friendly grin, was absent; he had flown off to the Middle East to climb a mountain and make a speech.

The others settled into familiar attitudes--little Justices Black and Frankfurter, alert and quick of eye, just able to peer over the back of the high mahogany bench; Murphy with a starched, far-off look; Jackson with his openwork, Dutch expression; Rutledge rocklike, Reed massive and heavy-jowled, Harold Burton with an air of avuncular interest. The court began to hand out what is promised by the marble figures on the wall: Divine Inspiration, Justice, Wisdom and Truth.

They were at the tag end of the term. Next week the court hopes to hang up its tailored black robes and go fishing, putter around its roses, and occasionally study legal papers. Behind them the Nine will leave some bewildered citizens, some disgruntled federal cops, a larger than usual number of baffled and unhappy lawyers, and one of the most adventurous records in the Supreme Court's long and loquacious history.

What Mark Twain Meant. Since 1937, the Nine had taken themselves pretty well out of the headlines, but they had made news nonetheless. Closer to the tradition of Holmes and Brandeis than to that of Hughes, they had plowed under old and respected landmarks; they had overturned, altogether, some 30 previous decisions of the Supreme Court; they had struck out boldly, sometimes brashly, into new grounds. Other courts had split more violently, but no court had quarreled so continuously and rambunctiously with itself, Whereas in the '20s and '30s the courts found themselves in solid agreement some 80% of the time, 70% of the time this term the court had found itself split.

The justices sometimes viewed the official opinions of their brethren on the court with the sharp, scornful rejoinders of political debaters: "Puts another weapon in the hands of the criminal world." "Converts the constitutional Bill of Rights into a suicide pact." "I give up--now I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.' " Some citizens who were personally affected by the justices' rulings couldn't help but agree with the justices' earthiest criticisms of themselves.

By its 6-3 ruling in a North Carolina divorce case (TIME, June 4, 1945), the court had left some 4,000,000 U.S. divorced persons facing--in the words of the dissenting Justice Black--possible "criminal prosecution and harassment." By the time the justices had threaded an uncertain way through the states' already mixed-up divorce laws there was, in the bitter words of one justice, "no longer any divorce law in the U.S." In one wage-hour ruling--that workers must be paid for time spent getting ready to work and walking through the plant to their jobs ("regardless of contrary custom or contract")--they had opened a trap door under thousands of business firms. Congress had to rush to the rescue with legislation.

Under the Robes. It was a court in shirtsleeves. There was nothing about it that was austere or remote. It was earnestly social-minded, close to workaday problems, generally measured its decision by the utilitarian yardstick of "the greatest good for the greatest number." The Nine were no respecters of economic and business traditions.

Its members were ex-lawyers and ex-law professors; only two of them (Vinson and Rutledge, who had served on the Court of Appeals) had had any previous experience on the bench. As Supreme Court justices they were young (average age, 59)-Seven of them, the largest number of appointees by one President since Washington, owed their jobs to Franklin Roosevelt. The Nine in the order of their appointments:

Hugo Black, appointed twelve years ago in the midst of outraged objections when Black, an ex-police judge, later a U.S. Senator, had to admit that once he had joined the Ku Klux Klan in Alabama; now rated as one of the best-read, hardest working, most learned justices on the court.

Stanley Reed, Kentucky-born, onetime Solicitor General, once a practical dirt fanner, writer of pedestrian opinions, rated as an able lawyer.

Felix Frankfurter, Vienna-born, oldest in years (66), who as a professor at the Harvard Law School in the '30s hatched out a brood of young New Deal pundits, and as a justice is a bouncing, argumentative, brilliant little man planted firmly on the roost of his vast knowledge of the law.

William Orville Douglas, the court's youngest (50), who swears inelegantly, chews gum, scratches matches on the seat of his pants, and is an assertive, restless, billy-be-damned man who has often been discussed as a presidential possibility--and still doesn't consider himself politically entombed, even in the marble temple on Capitol Hill.

Frank Murphy, ex-governor of Michigan, onetime Attorney General, the court's only Roman Catholic, a man of humanitarian impulses without the intellectual drive and capacity to make himself highly effective.

Robert Houghwout Jackson, onetime Attorney General, collector of McGuffey's Readers, ardent horseman, an eloquent, incisive writer who, when he dissents, dissents in vitriol; considered by corporation lawyers to be the most consistent of the justices.

Wiley Rutledge, Kentucky-born, son of a Baptist preacher, large, dignified and pedagogical, onetime dean of Washington University's and Iowa State University's law schools, a liberal in the tradition of the Midwest.

Harold Burton, ex-mayor of Cleveland, ex-Senator from Ohio, the lone Republican, a close friend of Harry Truman who appointed him. An amiable man, outpaced by his hard-running colleagues, generally regarded as the least effective justice on the court.

Fred Vinson, third of the Kentucky-born justices, an authority on taxes when he served in Congress, a troubleshooter for

Roosevelt during the troubled days of World War II, a formidable poker player, above all, a man of diplomacy who was appointed Chief Justice to squelch the old feud between Black and Jackson which exploded in public in 1946.

The Nibblers. Considering the record of dissents, it was curious that the justices had not been in the headlines oftener than they were. The answer was that their arguments were largely intramural; they had not got in spectacular knockdown fights with other branches of Government, as for example, had their predecessors, the Nine Old Men. That court, dominated by McReynolds, Van Devanter, Sutherland and Butler, defiantly stood against a social revolution. This court was part of the revolution.

They managed a judicial air. Despite management's worst fears, they had not gone overboard for the cause of labor. They had, for example, upheld the right of the separate states to pass laws against closed shops; they had sternly and righteously reminded John L. Lewis of the majesty of the law, upheld his conviction for contempt.

True, they fixed Big Business with a cold and fishy stare. Some patent lawyers were inclined to believe that a patent-holder's case was as good as lost if it ever reached the Supreme Court. The court cracked down on anything that looked like collusive price-fixing. Tax lawyers were chiefly concerned with keeping their cases out of the highest court's hands.

The court had not rushed in to grapple with any great constitutional problems. One of the justices called its course a policy of "self-denial." In the twelve years, only two congressional measures--neither of them major--had been declared unconstitutional. The court merely nibbled around the edges of the big, still unresolved questions, leaving it to time and changing customs to determine the ultimate shape of things. The nibbling was deliberate, and not the result of timidity. Rebuking by implication their immediate predecessors, the present justices insisted that it was Congress' job to legislate, not the court's.

Toward the Welfare State. On the pediment of the east face of the Supreme Court Building are some marble figures illustrating the fable of the hare and the tortoise, the moral of which was "Slow & steady wins the race." The inference is that the court's function is to plod along at a slow, safe pace, with proper judicial warnings to a sometimes harebrained, galloping Senate & House. At this moment in history, however, it was the conservative Senate & House who were plodding along, passing no broad social legislation.

The juridical tortoise sometimes tried to prod the hare awake. It hinted that Congress might liberalize some of its laws. It would not stand in the way of legislation leading toward the welfare state. To the

C.I.O. convention last year Justice Douglas confided: "The human welfare state is the great political invention of the 20th Century." And labor, he added warmly, has been its prime promoter. If some of his colleagues thought his speech a little less than judicial none of them said so in public.

Schism in the Court. The general flow of the court's majority opinions was along two main courses. One course was toward increasing tolerance of Government's spreading authority: the Supreme Court was for Big Government.

The other course was an increasing intolerance of any infringement on civil rights. In recent years, some 30% of the court's cases (and the court may choose the cases which it will consider) had to do with the rights of citizens in a democracy. The court upheld, though tentatively, the right of a Negro to live where he liked. It upheld his right to equal schooling, and to the vote--leaving the details to Southern legislatures. After first backing & filling on questions involving Jehovah's Witnesses, the court finally upheld the right of that sect to propagandize religious bigotry even on a man's front stoop; on a technicality of the law, a majority upheld the right of rabble-rousing Father Arthur Terminiello to incite a Chicago mob.

In fact, by its zeal in guarding civil rights the court has provoked some sardonic comments in the Department of Justice. Since 1947, the Department of Justice has not won a single search-and-seizure case; in reversing the Government, the court has opened jail doors wide to let known felons out. In the Trupiano case, G-men pinched a gang of bootleggers whom they had watched manufacturing alcohol for months. The court would not admit the alcohol as evidence because the G-men had no search warrant when they seized it. That much zeal for civil rights, Government agents felt, transcended common sense. The majority of the court, however, maintained that their opinion did make sound constitutional sense.

History to Make. There was general agreement that this court was above average. What this really meant was that there were above average justices on it. The absence of a strong disciplinarian like the late Chief Justice Hughes contributed to the haggling among the justices; so did the ever-growing complexity of the problems which they were called upon to solve.

In some respects, the justices were nine broiling brook's in search of a new main stream. Running down one side of the hill were Frankfurter, Jackson, Burton and Vinson. Running down the other side, a more precipitous slope, were Black, Douglas, Murphy and Rutledge. Reed ran back & forth.

The Frankfurter group thought the court should stay in the well-defined grooves left by precedent. Only then, they believed, would the people have any idea of what to expect from justice, what the rules were by which they built and traded, married and divorced, lived, paid taxes, and died.

Dissenting in the Terminiello case. Frankfurter sarcastically chided the majority: "This is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency."

The Black group cared less for precedent, more for a flexible legal logic in a world in a state of flux. Justice Douglas put their case most eloquently in a speech two months ago before the Association of the Bar of the City of New York. It did a lot to explain some of the attitude of the court and the shifting ground from which it often rules He said he required nothing more from decisions of the past than "a sense of continuity ... a feel for the durability of a doctrine . . . Even for the experts, law is only a prediction of what judges will do under a given set of facts ... A judge . . . remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it."

With his bright and belligerent eyes on the horizon, Justice Douglas said: "We have experience that they [preceding courts] never knew. Our vision may be shorter or longer. But it is ours. It is better that we make our own history than be governed by the dead. We too must be dynamic components of history . . ."

Such a doctrine made for exciting legal history. It also made for some difficulty in knowing what the bright young court would do next.

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