Fragmented Bench

The Executive Branch of the U.S. Government, capped by the power and glamour of the presidency, makes news week after week. So does the Legislative Branch, whether it is going along with the President or opposing him. Last week was one of those relatively rare times when the third branch of the Government, the Judiciary, dominated the news. Within a span of a few days, 1) the Supreme Court handed down a precedent-breaking decision that might have as many repercussions as its 1954 school desegregation ruling. 2) an Eisenhower-appointed Justice retired, and 3 ) President Kennedy nominated his first Associate Justice of the Supreme Court.

Messy Decision. What the Supreme Court did in its decision was to bring the apportionment of seats in state legislatures under the review of federal courts, thereby entangling the Federal Government in a thorny thicket that earlier Supreme Court decisions had deliberately tried to avoid (see following story). The court's performance was typical of its performances in important constitutional cases in recent years--a cloudy decision, a fragmented bench. Justice William J.

Brennan's majority opinion is so vague in its implications that lawyers are not sure what it means, or even how important it is. Justices William O. Douglas.

Tom Clark and Potter Stewart all wrote separate concurring opinions to try to clarify what Brennan said. Justices Felix Frankfurter and John Marshall Harlan put forth separate dissents.

The Supreme Court has been badly split in recent years between a "liberal" bloc (Chief Justice Earl Warren. Hugo Black. Douglas and Brennan) and a "conservative" bloc (Frankfurter. Clark.

Harlan and Charles Evans Whittaker).

with Potter Stewart belonging to neither group but tending to go along with the conservatives. Often in controversial cases, the side that Stewart decided for became the majority. "As Stewart goes." Washington lawyers have said, only half-jokingly. "so goes the court." Lawyer's Lawyer. The court's divisions involve some paradoxes. The judicial "liberals" take what is, in traditional political terms, a conservative stand for the rights-and-liberties provisions of the Constitution, as opposed to its clauses granting great powers to the Federal Government.

The court "conservatives" unite around the doctrine of "judicial restraint"--for which the most eloquent spokesman is Felix Frankfurter, an old New Dealer appointed by Franklin Roosevelt. In brief, the doctrine holds that courts should refrain from 1) opposing the will of the people, as expressed in enactments of Congress, except where conflict with the Constitution is unmistakably clear, or 2) usurping the functions of Congress by handing down novel constitutional interpretations that in effect amount to new legislation.

During the 1930s. judicial restraint was a liberal doctrine, favoring F.D.R.'s innovations as enacted by Congress, and opposing the "Nine Old Men" who blocked New Deal legislation on grounds of unconstitutionality. On the Supreme Court in recent years, the terms liberal and conservative generally represent points of polarization. There have been ebbs and tides between the two blocs, with the result that lower-court judges and practicing lawyers can never really tell whether the Supreme Court is heading thisaway or thataway. Thus the law of the land has often seemed to be dictated more by the whim of the moment than by consistent principle.

Last week's reapportionment decision gave Frankfurter another opportunity to speak up for judicial restraint. In a memorable dissent, he called the majority decision "a massive repudiation of our whole past in asserting destructively novel judicial power."

Three days later. Frankfurter lost a reliable ally in his battle for judicial restraint: Justice Whittaker (who took no part in the apportionment decision) announced his retirement. A Kansas City Republican appointed in 1957. Whittaker was perhaps the most consistent conservative on the court. He was a painstaking "lawyer's lawyer." who never dazzled the court with bold thrusts or verbal fireworks, but did contribute sorely needed efforts to clarify issues and points of law. As his reason for retiring. Whittaker cited "physical exhaustion from the great volume and continuous stresses of the court's work." Friends reported that Whittaker, at 61 the third youngest member of the court, had broken down from the strain of conscientiousness. "He brooded and tormented himself over decisions." said one federal official.

Pragmatic Approach. Whittaker's resignation brought on a temporary spate of guesses about his successor. Every conceivable possibility, and even some impossibilities such as Tennessee's Senator Estes Kefauver, got mentioned in one list or another. Many guessers supposed that Kennedy would succumb to political temptation and appoint a Negro--among those mentioned were Third Circuit Court of Appeals Judge William Hastie, Housing Administrator Robert Weaver, and Second Circuit Court of Appeals Judge Thurgood Marshall.

Kennedy ended the suspense by naming Deputy Attorney General Byron R.

White, 44, sometime football hero and Rhodes scholar (see box). To help make up for his lack of judicial experience. White will bring to the court a high and well-honed intelligence. With a New Frontier Democrat replacing a conservative Republican, it was widely felt that the uneasy balance in the court would tilt decisively toward the liberal bloc--but that was an overly simple interpretation. White is a New Frontier pragmatist. As a former Deputy Attorney General, he will probably tend to side with the Frankfurter bloc in internal security cases, just as Whittaker did. And where White does join with the liberal bloc, he can be expected to contribute to it a cool, analytical, pragmatic approach.

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