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Constitutional Law in 1953–1954
Published online by Cambridge University Press: 02 September 2013
Extract
The membership of the Supreme Court remained unchanged during the 1953 Term. Chief Justice Vinson died on September 8, shortly before the opening of the Term. Governor Earl Warren of California was given a recess appointment by President Eisenhower on October 2, and was sworn in as the fourteenth Chief Justice on October 5. The Senate Judiciary Committee moved slowly, however, and the appointment did not reach the Senate until March 1, 1954, when it was confirmed by a voice vote without opposition.
A week after the 1954 Term got under way Justice Robert H Jackson died, of a heart attack, on October 9, 1954, at the age of 62. For a man who had no law degree, Justice Jackson had done very well in the law. After a brilliant career as a lawyer in Jamestown, New York, he entered the government service in 1934 as General Counsel to the Bureau of Internal Revenue. He was appointed Solicitor-General in 1938, Attorney-General in 1940, and was elevated to the Supreme Court by President Roosevelt in June, 1941. He served as chief American prosecutor at the Nürnberg trial of top Nazi war criminals. Though appointed with the reputation of being a liberal New Dealer, Justice Jackson was actually close to the very center of the Court in many cases where the Justices were sharply divided. He was one of the most gifted opinion-writers on the Court, with a flair for felicitous phrasing and well-turned epigrams. To take the place of Justice Jackson, President Eisenhower nominated, on November 8, 1954, Judge John Marshall Harlan, whom he had appointed the previous March to the Court of Appeals for the Second Circuit. Judge Harlan, once a successful New York lawyer, is the grandson of the Justice Harlan who served with such distinction from 1877 to 1911.
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References
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19 See, for example: Florida ex rel. Hawkins v. Board of Control, 347 U.S. 971 (1954), on school segregation; Superior Films, Inc. v. Department of Education, 346 U.S. 587 (1954), on censorship of motion pictures; White v. Howard, 347 U.S. 910 (1954), on registration of names of political parties; Brownell v. Singer, 347 U.S. 403 (1954), on liquidation of assets of enemy alien property; United Shoe Machinery Corp. v. United States, 347 U.S. 521 (1954), involving an unusually important anti-trust action; and County Board v. State Milk Commission, 346 U.S. 932 (1954), on standing to sue.
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21 347 U.S. 439 (1954).
22 116 P. Supp. 683 (S.D. New York, 1953).
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24 347 U.S. 612 (1954).
25 United States v. Rumely, 345 U.S. 41 (1953).
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27 347 U.S. 522 (1954). This case came up by way of habeas corpus, as usual. The Solicitor General has recently recommended, as a substitute for habeas corpus, which is available only after the alien has been taken into custody for deportation, judicial review of a final order of deportation by petition on the part of an alien who is not in custody. A proposed bill which would authorize this procedure was approved by the Judicial Conference of the United States at a session held on April 15 and 16, 1954. See Report, House Doc. 475, 83d Cong., 2d sess., p. 15.
28 Harisiades v. Shaughnessy, 342 U.S. 580 (1952).
29 347 U.S. 637 (1954).
30 347 U.S. 260 (1954).
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40 346 U.S. 356 (1953).
41 Federal Baseball Club v. National League, 259 U.S. 200 (1922).
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43 United States v. Employing Plasterers Assoc., 347 U.S. 186 (1954).
44 United States v. Employing Lathers Assoc., 347 U.S. 198 (1954).
45 347 U.S. 514 (1954).
46 346 U.S. 482 (1953). See Cox, Archibald, “Federalism in the Law of Labor Relations,” Harvard Law Review, Vol. 67, pp. 1297–1348 (June, 1954)CrossRefGoogle Scholar; Hays, Paul R., “Federalism and Labor Relations in the United States,” University of Pennsylvania Law Review, Vol. 102, pp. 959–79 (June, 1954)CrossRefGoogle Scholar.
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50 Alabama v. Texas, 347 U.S. 272 (1954). See the note on this case in University of Pennsylvania Law Review, Vol. 102, pp. 804–8 (April, 1954)Google Scholar.
51 United States v. California, 332 U.S. 19 (1947); United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950).
52 International Longshoremen's and Warehousemen's Union v. Boyd, 347 U.S. 222 (1954).
53 Public Utilities Commission of California v. United Air Lines, 346 U.S. 402 (1953).
54 Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237 (1952).
55 United States v. Gilman, 347 U.S. 507 (1954).
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57 Dickinson v. United States, 346 U.S. 389 (1953).
58 Estep v. United States, 327 U.S. 114 (1946).
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61 Arkansas v. Texas. 346 U.S. 368 (1953). See the Annotation in 98 L. Ed. 85.
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65 The Court of Appeals of the District affirmed, and the Supreme Court denied certiorari, 334 U.S. 843 (1948).
66 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951).
67 Burstyn v. Wilson, 343 U.S. 495 (1952).
68 Superior Films, Inc. v. Department of Education of Ohio, 346 U.S. 587 (1954). The problems presented by this case were widely commented on: Lasker, Edward, “Censorship of Motion Pictures Pursuant to Recent Supreme Court Decisions,” U.C.L.A. Law Review, Vol. 1, pp. 582–92 (June, 1954)Google Scholar; Desmond, Charles E., “Censoring the Movies,” Notre Dame Lawyer, Vol. 29, pp. 27–36 (Fall, 1953)Google Scholar; Harris, Albert W. Jr., “Movie Censorship and the Supreme Court: What Next?” California Law Review, Vol. 42, pp. 122–38 (Spring, 1954)CrossRefGoogle Scholar; Note, University of Pennsylvania Law Review, Vol. 102, pp. 671–74 (March 1954)Google Scholar; Note, “Motion Picture Censorship: The Aftermath of Burstyn v. Wilson,” North-western University Law Review, Vol. 49, pp. 390–99 (July-Aug., 1954)Google Scholar. For other free speech problems see First Conference on Intellectual Freedom, Freedom of Communication (New York, 1954)Google Scholar; Black, Charles L. Jr., “He Cannot Choose but Hear: the Plight of the Captive Auditor,” Columbia Law Review, Vol. 53, pp. 960–72 (Nov., 1953)CrossRefGoogle Scholar; Lockhart, William B. and McClure, Robert C., “Literature, the Law of Obscenity, and the Constitution,” Minnesota Law Review, Vol. 38, pp. 295–395 (March, 1954)Google Scholar.
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72 United States v. Kahriger, 345 U.S. 22 (1953).
73 338 U.S. 25 (1949).
74 Weeks v. United States, 232 U.S. 383 (1914).
75 347 U.S. 340 (1954).
76 McLeod v. Dilworth Co., 322 U.S. 327 (1944). Here the Court held that a state could not tax the sales of an out-of-state vendor where title passed before delivery to the carrier in the state of origin, and no collections were made in the taxing state.
77 General Trading Co. v. State Tax Commission, 322 U.S. (1944). Here the Court ruled that an out-of-state vendor who used travelling salesmen to solicit orders locally could be required to collect use taxes. It is interesting to note that the two precedents upon which the majority and minority relied in the instant case had been decided on the same day.
78 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Board of Regents, 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). The vote in the Missouri case was 7–2; the Court was unanimous in the others.
79 163 U.S. 537.
80 The state cases are grouped as Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). The District of Columbia case is Bolling v. Sharpe, 347 U.S. 497 (1954). The writings on the subject of these cases during the period under review were understandably voluminous. See Ashmore, Harry S., The Negro and the Schools (Chapel Hill, N.C., 1954)Google Scholar; Kauper, Paul G., “Segregation in Public Education: The Decline of Plessy v. Ferguson,” Michigan Law Review, Vol. 52, pp. 1137–58 (June, 1954)CrossRefGoogle Scholar; Graham, H. J., “Fourteenth Amendment and School Segregation,” Buffalo Law Review, Vol. 3, pp. 1–24 (Winter, 1953)Google Scholar; Waite, Edward F., “Race Segregation in the Public Schools: Jim Crow at the Judgment Seat,” Minnesota Law Review, Vol. 38, pp. 612–21 (May, 1954)Google Scholar; Symposium on “Segregation in the Public Schools,” Journal of Public Law, Vol. 3, pp. 5–170 (Spring, 1954)Google Scholar; Note, “Potentialities of Equal Protection as an Implement of Judicial Review,” Indiana Law Journal, Vol. 29, pp. 189–206 (Winter, 1954)Google Scholar; Public Affairs Pamphlet No. 209, Segregation and the Schools (June, 1954); Rice, Pamela, “A Legislative Attack on Educational Discrimination,” Journal of Negro Education, Vol. 23, pp. 99–106 (Winter, 1954)CrossRefGoogle Scholar. See also McKay, Robert B., “Segregation and Public Recreation,” Virginia Law Review, Vol. 40, pp. 697–731 (Oct., 1954)CrossRefGoogle Scholar; Nichols, Lee, Breakthrough on the Color Front (New York, 1954)Google Scholar; Logan, Rayford W., The Negro in American Life and Thought (New York, 1954)Google Scholar.
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82 Soon after the disposition of the Segregation Cases, the Court remanded, with per curiam opinions, three cases for further consideration in the light of its new position: Muir v. Louisville Park Theatrical Association, 347 U.S. 971 (1954) [Sixth Circuit Court of Appeals decision upholding racial segregation in the theatre of a public park]; Florida ex rel. Hawkins v. Board of Control of Florida, 347 U.S. 971 (1954) [Florida Supreme Court decision sustaining segregation at the University of Florida]; and Tureaud v. Board of Supervisors of Louisiana State University, 347 U.S. 971 (1954) [fifth Circuit Court of Appeals decision refusing to enjoin segregation at Louisiana State University]. In addition, the Court declined to review two decisions against segregation: Holcombe v. Beal, 347 U.S. 974 (1954) [Court of Appeals of the Fifth Circuit ruling against exclusion of Negroes from a municipal golf course]; and Housing Authority of San Francisco v. Banks, 347 U.S. 974 (1954) [state court decision against segregation in a local public housing project].
83 347 U.S. 475 (1954).
84 Salsburg v. Maryland, 346 U.S. 545 (1954).
85 The Court leaned heavily on Missouri v. Lewis, 101 U.S. 22 (1879), which upheld a statute classifying the City of St. Louis and four counties specially for purposes of judicial appeals.
86 Walters v. St. Louis, 347 U.S. 231 (1954).
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89 Atchison, Topeka & Santa Fe R. Co. v. Public Utilities Commission of California, 346 U.S. 346 (1953).
90 See Hartman, P. J., “State Taxation of Interstate Commerce: An Appraisal and Suggested Approach,” Washington University Law Quarterly, Vol. 1953, pp. 233–69 (June, 1953)Google Scholar; Note, “State Taxation and Interstate Commerce,” Columbia Law Review, Vol. 54, pp. 261–77 (Feb., 1954)CrossRefGoogle Scholar.
91 347 U.S. 590 (1954).
92 347 U.S. 157 (1954).
93 The lower court relied mainly upon the well-known case of Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932), which sustained a state tax levied upon the production of electricity thereafter sold in interstate commerce. The instant case was distinguished on the ground that the Texas tax was not levied on production, but rather on the taking into interstate commerce after production, gathering, and processing.
94 347 U.S. 359 (1954).
95 The constitutional authority of Virginia to do this was sustained in Railway Express Agency v. Virginia, 282 U.S. 440 (1931).
96 Kern-Limerick, Inc. v. Scurloch, 347 U.S. 110 (1954).
97 314 U.S. 1 (1941).
98 Franklin National Bank v. New York, 347 U.S. 373 (1954).
99 Brownell v. Singer, 347 U.S. 403 (1954).
100 Zittman v. McGrath, 341 U.S. 471 (1951).