JUDICIARY: The Dissenting Court

This week the nine justices of the Supreme Court donned their black silk robes and marched in through the crimson-draped entrances behind the mahogany bench. The Court’s 154th year began.

Chief Justice Harlan Fiske Stone, 71, had spent the summer in a shingle house in Bethel, Me. There he leafed through legal briefs, examined a stack of art books, but mainly just puttered. Justice Owen Roberts, 69, weeded and hoed on his 700-acre farm in Pennsylvania.

Some of the younger justices were more active. Hugo La Fayette Black, 58, met his sons (Lieut. Sterling and Corporal Hugo L. Jr.) at Miami Beach, sharpened up his tennis in matches with Donald Budge’s brother Lloyd. William Orville Douglas, 45, went, as usual, to his hideaway Lostine River ranch in northeast Washington, climbed mountains and hooked trout. Stanley Reed, 59, whacked repainted golf balls for exercise; Wiley Rutledge, 50, camped out in the White River country of western Colorado. Bob Jackson, 52, rode horseback at his McLean, Va. estate; Frank Murphy, 54, lolled on a Michigan beach; Felix Frankfurter, 61, visited in Connecticut.

Thus refreshed, the justices faced the biggest docket since 1941. There were 513 cases pending—322 ready for the conference room, where the justices argue and debate, agree and disagree, are finally assigned to grind out the decisions.

Area of Disagreement. Although eight justices owed their present position to one man,* it was the most divided Court in U.S. history—and for that reason, one with little prestige.

Totting up his annual score, University of Chicago’s Professor C. Herman Pritchett found that in the 1943-44 term at least one justice had dissented in 58% of the cases—a new record. (Previous high: 44% in 1942-43; in most of the Court’s history up to 1937 the dissents never averaged higher than 20%.)

The dissents worked out into a pattern. Justices Black and Douglas teamed up 15 times. They were joined often enough by Justices Murphy and Rutledge so that these four formed a bloc, usually ideologically to the left. The bloc on the right had Justices Roberts and Frankfurter as leaders, often joined by Chief Justice Stone and Reed. Justice Jackson was now the “swing man”—as Chief Justice Hughes used to be among the Nine Old Men—joining the right more often than the left.

But this cleavage was by no means absolute. The 1943-44 Court had agreed on most major matters: upholding the NLRB, picketing and price control; sustaining new and higher taxes, protecting civil liberties. The differences were over minor matters, often legalistic, and generally representing differences in legal approach. Broadly speaking, the Black school would usually uphold Congress, as representing the new will of the people; while the Frankfurter school would hold fast to previous law and hoary precedent. Not since May 1936 had the Supreme Court overturned a law of Congress.

The Court, if it had been packed, had not been well-packed. It was so divided that two of its members (Roberts and Frankfurter) had warned that, if its present tendencies continue, “the administration of justice will fall in disrepute.”

* Of 264 lower court federal justices, Franklin Roosevelt has appointed 162 (61%).