Justice in a Democracy

by MARK DEWOLFE HOWE

1

MR. DILLIARD, as he indicates, is not the only student of constitutional decisions to build a tower of criticism upon statistical foundations. Although I am tempted to comment upon the innocence of Mr. Dilliard’s faith in judgment by slot machine, I shall for the moment assume with him that a statistical method of appraising judicial opinions may have utility. My concern will be to show that his statistics, however much they may be centered upon an important issue, tell us little that is of decisive importance.

Mr. Dilliard would have us believe not only that his tables show a striking difference in the attitudes of the individual Justices towards civil rights, but that the security of these rights is entirely dependent upon the degree of personal devotion which ihe Justices have to liberty. He nowhere suggests that other conceptions and other standards than those of the appropriate scope of freedom have constitutional or even statistical relevance in cases concerned with civil liberties. He has prepared his tables and appraised their significance as if history had presented no problems of the role of the judiciary in a democracy, and as if the Supreme Court were not functioning in a federal society. In thus oversimplifying the issue, Mr. Dilliard is following in t the wake of other forgetful liberals who seem to have losl all recollection of a relatively recent past in which they protested that judicial predilections economic, political, and purely personal—were setting the limits to the constitutional powers of the nation and the states. In those forgotten days it was the first article of liberal faith that humility was an essential quality in the judicial temperament.

Mr. Dilliard now feels, however, that the Justice who does not drive the hook and ladder to every fire in which the feathers of liberty may be singed is restrained by a discreditable indifference to the fate of liberty rather than by a legitimate doubt whether his driver’s license qualifies him to make such exhilarating journeys. To say that the present problem is not comparable with that of an earlier day, and that humility, important then, is unimportant now, is simply to say thal we shall demand humility of those with whom we disagree and boldness of those with whom we sympathize. It is hard for me to believe that Mr. Dilliard would accept such a blunt formulation of his creed; yet I believe that its acceptance is implicit both in the questions which he asks and in the methods which he follows to find their answer.

My criticism of his method will perhaps be more comprehensible if I refer to specific decisions which are included in his statistical tables, but of which little that is telling can be said so long as their meaning is measured exclusively in terms of the personal devolion of individual Justices to the cause of civil liberty. Among the civil rights cases which were decided at the 1946 term was Adamson v. California. Mr. Justice Murphy concurred in a dissenting opinion in which it was maintained that the defendant had been unconstitutionally denied his civil rights. The Chief Justice concurred in the opinion of Mr. Justice Reed for the majority. Tabulating the individual “votes” on his scale of values, Mr. Dilliard gives Mr. Justice Murphy a score of “1” and the Chief Justice a score of “0.”

Let us, however, look at the issues before the Court in the Adamson case to see whether Mr. Dilliard’s alignment of the Justices adds appreciably to our understanding of their sympathy or indifference to civil liberties. In 1908 the Supreme Court determined that the due process clause of the Fourteenth Amendment does not compel a state to forbid comment on the failure of a criminal defendant to take the stand. Although the specific provision of the Fifth Amendment, applicable to criminal proceedings in Federal courts, had been interpreted to forbid such comment, the Court in 1908 had said that the states were free to follow a different rule. The defendant in the Adamson case endeavored to persuade the Court that it should overrule its earlier decision and invalidate a provision in the constitution of California adopted in 1934 by which the right to comment on the defendant’s silence was specifically granted to judges of the state.

The majority of the Supreme ourt of the Uniled States refused to overrule the earlier decision. They emphasized the fact that confidence in the effectiveness of juries may not unreasonably be carried farther than it had been in the past. They suggested that it is importtant that the Supreme Court of the Uniled States should not so apply procedural rules of the eighteenth and nineteenth centuries as to make them constitutional rules of the twentieth century. And they warned that to do so may “deprive the States of opportunity for reforms in legal process designed for extending the area of freedom.”

Unless one disregards entirely the stated ground of judicial opinions, it would seem to be a fantastic oversimplification of the Adamson case to treat it as if no other aspects of a judge’s constitutional philosophy than those which concern civil rights were tested in its difficulties. The reliance of the people of California on the earlier decision of the Supreme Court, the hope that experiments within the states may produce helpful answers to persistent problems of trial procedure, and the settled formula that Federal courts should exercise the greatest caution in invalidating state legislation were no less serious elements in the problem with which the Court was confronted than those concerning the defendant’s civil rights. The Justices who wore in the minority were persuaded that in the judicial balance the defendant’s interest in a particular rule of procedure outweighed the general interest in the fixity of precedent and traditional principles of federalism.

There clearly is ample room for disagreement as to the merits of the case; I submit, however, that agreement with Mr. Dilliard’s content ion that the opinions in the case can be taken as an index to the degree of individual devotion to liberty is impossible. He is proceeding, I believe, from the mistaken notion that the Supreme Court’s responsibility is that of making abstract pronouncements on questions of liberty. Me seems to overlook the critical fact that the Court functions as a judicial body in a federal democracy.

When Mr. Dilliard examines the judicial “box score” in the last term of the Supreme Court he gives great credit to those Justices who joined in the opinion reversing the conviction of Father Terminiello. Once more the slot-machine readily discounts the complications of the total problem and tags each Justice with the appropriate label. The five Justices who subscribed to the opinion that Terminiello’s conviction for breach of the peace was unconstitutional are awarded the accolade of champions; l hose who dissented and argued that the decisions of three courts of Illinois, through which the case had passed, should stand are classed as men with relatively small appreciation of the significance of freedom. The dramatic aspects of the case are sufficiently numerous to lead many casual readers of the newspapers to believe that the only issue before the Supreme Court was whether the fascism of Terminiello’s beliefs and the violence of his language deprived his speech of constitutional protection.

Mr. Dilliard’s reference to the opinions would suggest that his understanding of the case was no more discriminating than that of the man on the street. Surely he realizes that in fact the principal division in the Supreme Court concerned the appropriateness of basing reversal upon a ground which had not been raised in the courts of Illinois, had not been argued in the Supreme Court of the United States, and which, in the view of the Chief Justice, had been “ferreted out of a lengthy and somewhat confused record” by the independent energy of his associates. Mr. Justice Frankfurter stated that the reversal on a ground that was neither urged before the courts of Illinois nor presented to the Supreme Court was in violation of a rule settled by one hundred and thirty years of Supreme Court practice. Perhaps the rule is not justified and should now be overturned. It is scarcely accurate, however, to describe the Justices who believe that it should persist as less alert to the protection of civil rights thaan those who consider that the taking of exceptions and the argument of constitutional questions are formalities which may, without injury to the system of appellate review, be abandoned.

2

WERE I debating these questions face to face with Mr. Dilliard, I am quite sure that he would make at least three points in reply to my criticism. He would urge, in the first place, that I have violated a settled principle of statistics in seeking to rebut their showing of a general truth by rejecting selected examples. The point which I have tried to make clear, however, is that in every ease involving civil liberties which comes to the Supreme Court there are issues of Federal jurisdiction and of the relationship of the judicial power to the legislative and executive powers which are inescapable and which, in numerous instances, are of controlling importance. A statistical method which, in its eager search for labels, leaves those issues out of account is drastically inadequate.

In the second place, Mr. Dilliard might be expected to say that in my failure to deny the accuracy of his statement that Mr. Justice Murphy and Mr. Justice Rutledge more frequently than any of their associates sustained claims that civil rights had been invaded, I have admitted that their concern for liberty is more sensitive than that of their associates. Of course I deny the admission. Mr. Dilliard’s tables tell us nothing of the temper of an individual Justice’s devotion to civil liberty. They do not do so because the problems coming to the Court for resolution are not abstract issues of freedom. Each particular problem of liberty arises in a context which compels the Court to deal with other issues of policy—sometimes of federalism, always of the limits of judicial power in a democracy. If Mr. Dilliard, admitting this, would go on to argue that his tables at least show that his heroes gave to civil liberties, in relation to other interests with which the Supreme Court is necessarily concerned, a relatively high valuation I should agree with him. Relational statistics, however, have significance only when discriminating account is taken of all the values which are brought into relationship.

The third point which I believe that Mr. Dilliard would make in reply to my argument is that I am willing to let legal technicalities block the rushing waters of liberty. I suspect that Mr. Dilliard would consider that those aspects of the Adamson and Terminiello cases which I have emphasized are simply legalisms. If he should choose to use that label I should not object, for it seems to me quite clear that such legalism as that upon which I put my emphasis lies at the center of our traditions and gives them much of their strength. The majority of those civil rights to which Mr. Dilliard finds that Mr. Justice Murphy gave such fine devotion were, by any reasonable classification, rules of procedure of the most technical sort. On its face a rule of law which says that a jury may draw no inference of guilt from a defendant’s failure to testify is irrational, in that it seeks to prevent the jury from making an inference which the average man would surely make in the absence of the rule of law. If technicality is important in such matters, it seems to me evident that it may be equally important in other constitutional issues.

The exuberance of the Supreme Court’s majority in the 1920’s not only did much temporary harm in leading to the formulation of mistaken rules of constitutional law, but it did permanent damage in encouraging the popular belief that the Court is under an affirmative responsibility of spreading a soft blanket of enlightened liberty over the whole surface of our land. We are thus led to the easy assumption, which is central to Mr. Dilliard’s thesis, that any Justice who does not, each Monday morning of the term, tuck in the blanket’s edges and smooth its wrinkled surface in Illinois, New Jersey, California, and Alabama (ev en stretch its comforts to Germany and Japan) is unfriendly to the cause of liberty. Judicial reluctance to undertake such large responsibilities is naturally phrased by judges in terms that have a legalistic sound to the eager ears of libertarians. Issues are nonjusticiable, proper exceptions were omitted at the trial, the presumption of constitutionality must be given weight —decisions to let matters find their solution elsewhere than in the Supreme Court of the Uinted States are reached through such legalistic phrases as these. The wisdom of such decisions is the central constitutional issue of our time, not the issue whether Mr. Justice Murphy was more friendly to civil rights than is the Chief Justice.

I am not concerned with the merits of the prophecy which Mr. Dilliard has made concerning the probable position of Mr. Justice Clark in civil liberty cases. If what I have said is true, Mr. Dilliard has based his gloomy prediction on largely irrelevant facts. For it is less important to knowhow a Justice values civil rights than it is to know what he considers to be the limits of the responsibility of the Supreme Court. That that is so seems to me to be clearly shown by the position which Mr. Justice Frankfurter occupies on Mr. Dilliard’s statistical tables. Certainly it would be hard to show that the pre-judicial career of any Justice was marked by a greater devotion to civil liberty than that of Mr. Justice Frankfurter. Yet he appears in the ambiguous position not of Associate Justice but of “Swing” Justice on Mr. Dilliard’s tables. Perhaps Mr. Dilliard believes that the Justice has moved, if not swung, from left to right since his appointment to the bench. Conceivably that is so. If one is to credit the Justice with intellectual honesty, however, and take as seriously intended the stated grounds of his decision in cases which Mr. Dilliard scores to his disadvantage, it is entirely evident that when he has been reluctant to join the brethren whose robes are of armor it has almost invariably been because of his conviction that the arm of the judicial power, and more particularly of the Federal judicial power, was being stretched beyond its appropriate reach.

At the outset I expressed doubt whether the statistical analysis of Supreme Court opinions can, under any circumstances, he fruitful. That doubt is persistent. If it ever is dispelled it will only he by a showing, which has not yet been made, that “box scores” and tables, figures and computations, can record the impalpable factors in a process as subtle and complex as that of constitutional adjudicat ion. Until those who write of constitutional law postpone the affixing of handy labels to consideration of the problems of setting limits to judicial power, predictions of what will come in future terms of the Court are the idlest form of speculation. The quality of Murphy is surely strained if it is made the sole standard of constitutional criticism.