Disqualified

Decision-making is its job, but last week the Supreme Court could not make up its mind in two cases. On both, the justices deadlocked 4 to 4, which meant that the court affirmed the lower court without ruling on the merits.* Such ties do not happen often, but there have now been four this term. The reason is that the newest justice, Thurgood Marshall, has had to disqualify himself from almost every case decided so far.

Marshall came to the court after having been counsel for the N.A.A.C.P.'s legal-defense fund and then U.S. Solicitor General, the man responsible for all the Government's cases and amicus curiae briefs before the Supreme Court. Only one other justice in recent times has gone directly to the court from the Solicitor General's slot, and he had the same problem Marshall has had. "I disqualified myself in any case with which I had dealt as Solicitor General," says retired Justice Stanley Forman Reed, "and Justice Marshall's action is perfectly in keeping with practice." But because the case load is now larger than ever before, Marshall has most likely set a court record. His total so far is 40 disqualifications out of the 54 cases decided after argument.

The general practice of court members is to disqualify themselves from anything smacking of conflict, but each justice decides for himself. No reason is given, but it is often clear. William Douglas, who had been chairman of the Securities and Exchange Commission, would not hear any SEC-related case for five years after going on the court. Potter Stewart would not take part in appeals coming from the Ohio Supreme Court when his father was one of its judges, and Tom Clark retired because he expected that the disqualification problem would become great after his son Ramsey became U.S. Attorney General last year.

Marshall's problem should ease considerably from now on as the cases that began during his solicitor generalship are slowly taken care of. By next year, it is expected that he will stay out of only 10% of the cases. Despite the current abstentions, however, he does not lack for work. He has written two of the 14 decisions in which he has taken part. And he has been handling an extra number of the "petitions that ask the court to hear a case. So great is his work load, in fact, that he is in his office most Saturdays, and even some Sundays.

* The result in one case was that Brooks Lee Anderson, a Negro who was convicted of rape in Tennessee, will not get a new trial because he failed to prove that the continual absence of Negroes on local jury panels was the result of racial discrimination. In the other, five plaintiffs seeking damages for wrongful death and personal injuries in the crash of an Alitalia plane near Shannon Airport in 1960 will be allowed to sue for more than the $8,300 limit then in effect because the limitation was stated in such small print that it was too difficult to read.

This file is automatically generated by a robot program, so reader's discretion is required.