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Published online by Cambridge University Press: 02 September 2013
During the 1943–44 term of the Supreme Court, public attention was attracted to that body on several occasions by verbal exchanges in decisions of the Court which seemed unusually sharp and personal. On January 3, 1944, Justices Black and Murphy admonished Justice Frankfurter that “for judges to rest their interpretation of statutes on nothing but their own conceptions of ‘morals’ and ‘ethics’ is, to say the least, dangerous business.” In another opinion on the same day, the same two judges referred to “what is patently a wholly gratuitous assertion as to constitutional law in the dissent of Mr. Justice Frankfurter.” In the Magnolia Petroleum Co. case, Justice Jackson observed that the minority judges were apparently willing to enforce the full faith and credit clause “only if the outcome pleases….” Justice Murphy told the Court on one occasion that it was “rewriting” a criminal statute, Justice Jackson called the decision bringing insurance under the Sherman Act a “reckless” one, and Justice Roberts several times waxed sarcastic about the disregarding or over-ruling of precedents. “This tendency,” he said, “indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors.” It is not surprising that the newspapers translated these disagreements into personal terms and began to write about the “feud that was smoldering behind the Grecian columns of the white marble court building.”
There are many reasons for not taking such accounts too seriously. Thomas Reed Powell has wisely warned “laymen … not to draw too broad conclusions from any reportorial propensity to play up judicial disagreements as contests like those in war or sports.” Disagreement is no new thing on the Court. The faultless phrasing of the Holmes dissents may have raised to a higher plane, but did not conceal, differences as sharp as any evident during the past term.
1 Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661 (1944).
2 Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944).
3 Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943).
4 United States v. Gaskin, 320 U.S. 527 (1944).
5 United States v. South-Eastern Underwriters Assn., 64 S.C. 1162 (1944).
6 Smith v. Allwright, 64 S.C. 757 (1944).
7 “Our High Court Analyzed,” New York Times Magazine, June 18, 1944, p. 17.
8 Throughout this article, the count of opinions includes all full opinions plus per curiam decisions reported in the same manner as full opinions. This practice follows that of the Department of Justice in its computations. See Annual Report of the Attorney-General, 1941, p. 53, note 13.
9 Table V excludes Justice Reed, who was a member of the Court during the 1937 term for only a short time. Justice Sutherland is included, though he did not serve out the full term.
10 Prince v. Massachusetts, 321 U.S. 158 (1944); Billings v. Truesdell, 321 U.S. 542 (1944); Follett v. Town of McCormick, 321 U.S. 573 (1944); Smith v. Allwright, supra, note 6; Pollock v. Williams, 64 S.C. 792 (1944); United States v. Ballard, 64 S.C. 882 (1944); and Hartzel v. United States, 64 S.C. 1233 (1944).
11 McCann v. Adams, 320 U.S. 220 (1943); Roberts v. United States, 320 U.S. 264 (1943); United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Gaskin, 320 U.S. 527 (1944); United States v. Hark, 320 U.S. 531 (1944); Falbo v. United States, 320 U.S. 549 (1944); Yakus v. United States, 321 U.S. 414 (1944); United States v. Mitchell, 64 S.C. 896 (1944); Ashcraft v. Tennessee, 64 S.C. 921 (1944); Mortensen v. United States, 64 S.C. 1037 (1944); Feldman v. United States, 64 S.C. 1082 (1944); United States v. Saylor, 64 S.C. 1101 (1944); Lyons v. Oklahoma, 64 S.C. 1208 (1944).
12 City of Yonkers v. United States, 320 U.S. 685 (1944); McLean Trucking Co. v. United States, 321 U.S. 67 (1944); Thomson v. United States, 321 U.S. 19 (1944); Eastern-Central Motor Carriers Assn. v. United States, 321 U.S. 194 (1944); Cornell Steamboat Co. v. United States, 321 U.S. 634 (1944); United States v. Marshall Transport Co., 64 S.C. 899 (1944); Interstate Commerce Commission v. Jersey City, 64 S.C. 1129 (1944).
13 S.E.C. v. Joiner Leasing Corp., 320 U.S. 344 (1943); Fed. Power Cmsn. v. Hope Natural Gas Co., 320 U.S. 591 (1944); J. I. Case Co. v. N.L.R.B., 321 U.S. 332 (1944); Medo Photo Supply Corp. v. N.L.R.B., 64 S.C. 830 (1944); N.L.R.B. v. Hearst Publications, 64 S.C. 851 (1944); Addison v. Holly Hill Fruit Products, 64 S.C. 1215 (1944).
14 Supra, note 5.
15 McLean Trucking Co. v. United States, supra, note 12; I.C.C. v. Jersey City, supra, note 12.
16 Bowles v. Willingham, 321 U.S. 503 (1944); Yakus v. United States, 321 U.S. 414 (1944); Steuart & Bro. v. Bowles, 64 S.C. 1097 (1944).
17 Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944); Vinson v. Washington Gas Light Co., 321 U.S. 489 (1944); I.C.C. v. Jersey City, supra, note 12. Hecht Co. v. Bowles, 321 U.S. 321 (1944), is excluded from consideration, since it presented no real price-control issue.
18 See his dissents in Bowles v. Willingham, supra, note 16, and Yakus v. United States, supra, note 16.
19 Magnolia Petroleum Co. v. Hunt, supra, note 3; Brady v. Southern Ry. Co., 320 U.S. 476 (1943); Tennant v. Peoria & P.U.Ry. Co., 321 U.S. 29 (1944); Mahnich v. Southern S.S.Co., 321 U.S. 96 (1944); Case Co. v. N.L.R.B., supra, note 13; Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342 (1944); Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944); Medo Photo Supply v. N.L.R.B., supra, note 13; N.L.R.B. v. Hearst Publications, supra, note 13. The N.L.R.B. cases were also included in the business-regulation category. Several decisions are excluded in which labor was on both sides of the case, or where the Court's decision was not a clear victory for either side (Addison v. Holly Hill Fruit Products, supra, note 13).
20 Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943); General Adjustment Committee v. Southern Pacific Co., 320 U.S. 338 (1943); General Adjustment Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. 323 (1943); Falbo v. United States, supra, note 11; Stark v. Wickard, 321 U.S. 288 (1944).
21 Meredith v. City of Winter Haven, 320 U.S. 228 (1943); Demorest v. City Bank Farmers Trust Co., 321 U.S. 36 (1944); Flournoy v. Wiener, 321 U.S. 253 (1944); Great Northern Life Ins. Co. v. Read, 64 S.C. 873 (1944).
22 California v. United States, 320 U.S. 577 (1944); Order of Railroad Telegraphers v. Railway Express Agency, supra, note 19; Johnson v. Yellow Cab Transit Co., 321 U.S. 383 (1944); Cornell Steamboat Co. v. United States, 321 U.S. 634 (1944); United States v. Allegheny County, 64 S.C. 908 (1944); Union Brokerage Co. v. Jensen, 64 S.C. 967 (1944); United States v. Saylor, supra, note 11; United States v. South-Eastern Underwriters Assn., supra, note 5.
23 Northwest Airlines v. Minnesota, 64 S.C. 950 (1944); International Harvester Co. v. Indiana, 64 S.C. 1019 (1944); McLeod v. Dilworth Co., 64 S.C. 1023 (1944); General Trading Co. v. Tax Commission of Iowa, 64 S.C. 1028 (1944); International Harvester Co. v. Wisconsin, 64 S.C. 1060 (1944).
24 For an analysis of the divisions on the Supreme Court during the 1931–40 terms, see Pritchett, C. Herman, “Ten Years of Supreme Court Voting,” Southwestern Social Science Quarterly, Vol. 14, pp. 12–22 (1943).Google Scholar
25 To use the happy figure of Justice Cardozo's dissenting opinion in Jones v. Securities and Exchange Commission, 298 U.S. 1 (1936).
26 Supra, note 7.
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