Decision by Silence

The Supreme Court, as FOWLER HARPER points out, has the right to decline to hear most of the cases it is asked to decide. But in times of tension it can he very troublesome, both to the litigant and to the people, when the Court refuses to review a critical case. Projessor of Law at Yale since 1947 and the author of many books on law, Mr. Harper was a reporter on the Restatement of Forts for the American Laic Institute, Solicitor of the Department of the Interior under Secretary Ickes, and Deputy Chairman of the War Manpower Commission in the early stages of World War II.


MOST thoughtful people would probably agree that the Supreme Court of the United States is an important policymaking organ. The old ideas that the courts merely “apply” law that the legislature “makes,”or that they “find” the law that God or Nature or Reason made, have pretty much given way to the more realistic views expressed by Chief Justice Hughes that the Constitution is what the Judges say it is and by Justice Holmes that law is a guess as to what a court will decide.

Actually, the Supreme Court of the United States is an important, and in some respects the most important, instrument of public policy in the nation. Its decisions on the constitutionality of a Social Security Act, a Securities Exchange Act, a Smith Act, a McCarran Act, are of comparable if not paramount importance to the action of the Congress in passing such legislation. Little if anything, however, is known by the general public as to the significance of the work which the Supreme Court does not do; that is, the cases which it could decide if it wanted to, but, for reasons known only to the Court, it elects not to handle.

This gets us to the point that a heavy preponderance of the Court’s cases are those which it has almost an arbitrary discretion to hear or not to hear. By an Act of Congress of 1925, the Court was granted discretionary powers in all but a very few classes of cases to review or let stand the decision below, whether of an inferior Federal court or of the highest court of one of the states. This is called certiorari jurisdiction, wherein the Court may issue an order to the lower court to certify the record for review on the merits, or deny the petition, leaving the decision below as the law of the case. The Court’s rules set forth a number of reasons for the granting of the writ. As a matter of Supreme Court practice, reasons are never given when the petition for certiorari is denied.

The Court has thus draped a purple curtain in front of much of its business. In spite of the theory that in a democracy the operations of all branches of the government are open and subject to public approval, we find 90 per cent of the decisions of the highest policy-forming agency of the government veiled in secrecy. We are told that it is unsafe to speculate on the reasons for the Court’s action in passing on petitions for certiorari. If the petition to review is denied, it may be for one or more of any number of unnamed reasons. Moreover, all nine of the Justices might be moved by different ones. We are told that it is impracticable that reasons should be given. It would take up too much time. The rule of practice which the Court has adopted is that if four Justices vote to grant the petition, it will issue the writ and the Court will review. Hence, the only thing that the bar and the public can safely conclude from a denial is that four Justices did not so vote.

We are especially and repeatedly warned not to make inferences that the Supreme Court approves the decision below which it declines to review. Actually, it is doubtful whether one person out of a hundred thousand knows this, and that goes for a lot of people who ought to know belter. As Justice Frankfurter has said, it is not only the laity who think that a denial of certiorari by the Supreme Court is tantamount to approval of the decision below. After the Court refused to review the Hiss case, Senator Nixon, himself a lawyer, wrote a letter to the New York Herald Tribune to remark that “now that the Supreme Court has finally written the decision in the case of Alger Hiss, I should like to take this opportunity to give due credit. . . .” The Supreme Court, of course, had decided nothing in the case of Alger Hiss except that it would not decide it.

In the same newspaper Nixon was again quoted by Bert Andrews as observing: “This decision by the highest court of the land should resolve any lingering doubt which may have existed as to the guilt of Alger Hiss.” But we are told over and over again by the Court that the only thing such a decision resolves is that, for some reason or another which will never be known, fewer than four of the Justices voted to review the case. On the merits of the Court’s refusal to review Hiss’s case, there can be no doubt. It presented little more than the mystery of a missing typewriter and one man’s word against another under circumstances which made it clear that one or both were lying. There is not much of an argument for the proposition that the highest court in the couniry ought to review a jury’s judgment on which side the preponderance of perjury lay.


ALL right then: we can make no inference as to what the Justices think. But when a decision of a state court or a Court of Appeals stands because the Supreme Court denies certiorari, national policy is made, whether or not we know why and whether or not it was done on purpose. In this way our government operates, our way of life is determined, and national policy decisions are made behind a veil which the Court insists must forever remain impenetruble.

There are ways of getting a glimmer of what goes on. But it is not easy. An examination of the Supreme Court’s work for a term will indicate the problem. During the last term of Court (1950-51) there were 1335 cases on the dockets. Of these, 114 cases were disposed of by formal written opinions after full hearing and argument; 81 others were disposed of, in one way or another, on the merits, making a total of 195. When we deduct certain others which were dismissed by stipulation, withdrawn, or carried over to the next term, we come out with 1002 cases which the Court disposed of but did not review on their merits. Percentagewise, the Court acted on the merits in 14.6 per cent of the total number of cases on the dockets for the term. But a further analysis indicates that the Courtactually heard argument on the merits of only 126 cases. If we take out the 119 cases carried over, the Court handled only 10.3 per cent of its total work load after argument on the substance of the controversy.

Notwithstanding the fact that the Justices give no reasons for denial of certiorari or for dissenting from such a denial, those familiar with some of the predilections of the members of the Court can sometimes make fairly safe guesses as to the reasons for their actions. For example, both Justices Black and Douglas are extremely sensitive to the prerogatives of jurors. They consistently resist efforts of some of the stronger lower Federal judges to invade the jury’s province. Each term finds several dissents by these Justices from denials in cases brought under the Federal Employers’ Liability Act where an employee has sued a railroad for accidental personal injuries. Often, the trial judge will have given judgment for the defendant on the ground that the evidence that the railroad had been negligent was so flimsy that, no reasonable jury could find it so. Black and Douglas take the position that what is negligence and what isn’t is a matter of judgment as to how people ought to act to avoid injury to others, and it is no secret that, they prefer to have the jury pass on such questions rather than the judge.

Another situation in point arose during the past term in which Justice Black dissented for reasons that can be readily guessed. One James Moffett had sued the Arabian-American Oil Company on a fantastic claim under an alleged contract whereby he was to induce the United States Government, as a condition fora loan to Great Britain, to request the British to “take care" of the budget requirements of the King of Saudi Arabia, who at the time was short of cash. The District Court set aside a verdict for Moffett on the grounds that (1) there was insufficient evidence of the agreement and, in any event, (2) such an agreement would be against public policy. It certainly would. Indeed, it would make the Five Percenters look like small fry. The Court of Appeals affirmed the trial court on the first ground and said that it therefore was unnecessary to pass on the second. The Supreme Court denied certiorari, with Justice Black registering his dissent to the denial.

Now it is hard to believe that Justice Black would for a minute entertain the idea of upholding and enforcing such a contract as the one involved in this case. On the other hand, it is easy to think that he disliked the idea of the trial judge reversing the jury, on its finding of fact. Thus, he would like to review the case, repudiate the reason given by the Court of Appeals, and affirm the second reason given by the trial judge, thus substituting what he would regard as a good precedent for a bad one.

Of the 1000-odd cases which the Court cavalierly declined to consider, most have no conceivable merits. Each year there are several hundred petitions in forma pauperis, many consisting of crude, longhand letters in which some prisoner asks the Court to review his conviction of one, two, or twenty years before. Of such record as there is, there will be one copy. If the case did not get into an appellate court, there may be no written opinion below. It is difficult and in many cases impossible to form much of an opinion as to the validity of the petitioner’s claims, but we may reasonably accept the assurance of the Chief Justice that there is no merit in most petitions in these cases.

On the other hand, 495 cases which were refused review during the past term were decided by official opinions of responsible appellate courts, Federal or state. Although the curious investigator cannot often find out just why the Court would not consider the merits of such eases, it is usually possible to discover the issues involved and form a judgment as to their importance to the national interest.

To be sure, where discretion is lodged, there it must be exercised. The Court exercised its discretion in denying review in a thousand cases last term. But although the Supreme Court is the highest official agency of the state, even it is subject to review — review by the people for whom il works and from whom its authority derives. The Court must run the gamut of public opinion and the critical judgment of those who take the trouble to look into its behavior. Therefore, the opinion is offered that of the 1002 cases which the Court summarily and without stated reasons refused to review, there were 31 cases which were of vital interest to the nation and thus merited the attention of its highest tribunal. Of course, 31 cases out of a thousand doesn’t sound like much, but if you put it in terms of 31 issues of national importance, it sounds different. For whatever significance it has — and it has great significance—17 of the 31 cases involved some aspect of civil rights.

The bar generally — and for that matter, many others who follow the work of the Court — realize that the deaths of Justices Rutledge and Murphy knocked a big hole in the liberal bloc on the bench. With Justices Black and Douglas, it needed but one additional vote to make a majority. Before Chief Justice Stone died, the fifth vote was often there. And even after Stone’s replacement by a conservative successor, occasionally the liberal wing would pick up Justice Jackson or Reed and once in a while Frankfurter. Close cases, particularly in the explosive field of civil rights, usually went 5 to 4, one way or the other, depending on which way the “swing men" swung.

But even without help, the four liberals could control the writ of certiorari in such cases. They could require full review and thus get the opportunity to persuade one or more of their brethren to go along with them on the final decision. As the Court now stands, with the new Justices, Minton and Clark, following the Chief Justice’s line, controversial eases actually decided more often than not find Black and Douglas dissenting, reminiscent of a generation ago when two other staunch liberals tried to hold out against the 1 ide ot judicial reaction —“Justices Holmes and Brandeis dissenting.”

Much the same story goes for the results of certiorari denial in the tough cases. During the past term. Black and Douglas were together in dissent in 24 cases decided on the merils and in 13 eases in which the Court refused review. Their opposition record was extended by 12 separate dissents each in decided cases; and 9 for Black, 8 lor Douglas, in certiorari denials. This can be compared with the dissenting records of the other Justices: Vinson 6 in decided cases, none in denials; Clark 9 and none; Reed 12 and 4; Burton 13 and 1; Jackson 18 and none; Frankfurter 22 and none.


TYPICAL examples are the two lead cases in the current Communist witch-hunt, the conviction under the Smith Act of the eleven party leaders and the conviction of their lawyers for contempt of Judge Medina. In the former case, the Court granted review and affirmed the conviction, Justices Black and Douglas dissenting. In the latter, the Court on the last day of last term denied certiorari, Justices Black and Douglas dissenting. Recently, in the present term, however, at least two of the Justices changed their minds and the contempt issue will get full review on the merits.

The importance of the decision in the Dennis case is recognized by everyone. Many thinking people no doubt believe the Smith Act a necessary and proper weapon for the government to use in its own defense. Even if they can’t swallow the notion that this miserable handful of fanatics with unmarketable political ideas constitutes a “clear and present danger" to the national security, they are satisfied that Communism is a menace which must be dug out by the roots and even extraconstitutional means may be justified in the process. To the few liberals who still believe that the Bill of Rights reflects the basic difference between our system of government and those which we fear and abhor, the decision is the worst blow to democracy since the Died Scott decision.

However, it is by no means clear that the significance of the contempt case is understood. Indeed, there is a good bit of evidence that it is not so recognized, even by the bar itself. The recent epidemic of disbarment proceedings, the loyalty oath proposals for lawyers in state legislatures and bar associations, and the blast by the in-American Activities Committee against the liberal National Lawyers Guild as “the legal bulwark of the Communist Party” all make a logical pattern which cannot fail to underscore the deterring ellect ol the Medina contempt decision on lawyers who represent unpopular political minorities. That there is such a deterring influence seems fairly clear from the difficulty which the “second string” Communists have had in obtaining satisfactory counsel. After a hundred and fifty failures, they were forced to appeal to the idealism of a law school professor, not engaged in active practice, to take on their case in addition to his heavy academic duties.

The Communists are the hated men of our times. If the conception of free thought and free speech is to be anything other than a political cliché, the hated men must have constitutional protection. But to have it against the popular tide, they must have courageous advocates. There are not many Wendell Willkies and Grenville Clarks, unafraid to represent an unpopular client. And when one does appear, he will not only bring calumny down on his own head but may also get his associates into trouble, as witness the McCarthy attack on Senator Hennings because Raeburn Green, a member of his St. Louis law firm, accepted a Communist client. What of a bar which fails to live up to its tradition that no man can be accused and tried for crime without counsel? Even the President of the United States has admonished the lawyers of the land on the point. But conviction by an exasperated judge, without notice or hearing, for alleged contempts against him, committed weeks and in some instances months before, does not encourage lawyers to defend Communists. Neither does the promotion of such a judge to a higher judicial post, by way of reward. When one remembers that the right of advocacy also means the right to get an advocate, the importance of this case becomes clearer.

There were several other cases either decided by the Court or denied review during the past term which have gone far toward making an open season on Communists. The Court upheld the Los Angeles municipal loyalty oath and denied certiorari in two convictions of contempt of the Un-American Activities Committee of the House of Representatives; and in another case, of contempt of the little Un-American Activities Committee set up by the Stale Legislature of Washington—all against the claim of violation of the First Amendment, an issue never yet met by the Court. The trouble, of course, with this encouragement to the McCarthys and the McCarrans is that a lot of people who are not Reds get caught up in the net.


OF the cases which it might be supposed that the Court would find of sufficient importance to review, a number of others are equally spectacular. Take the case of Glen Taylor, for example. When he was a vice-presidential candidate on the Progressive Party ticket, he was billed for a speech to the Negro Youth of Atlanta. The speech was to be made in a local church. Taylor tried to enter the building through the Negro entrance but was barred by the police. A scuffle followed. In thus repudiating the discriminatory idea of separate entrances for people of different color, he got himself arrested for a breach of the peace, resisting an officer who refused his entry, and a violation of a City ordinance. He was convicted and the conviction was affirmed in the highest court of Georgia. His petition for certiorari got to the Court at the last term and was denied, no reasons being given.

This is a sad case. Glen Taylor has stated and voted, over and over again, his conviction that discrimination against Negroes is wrong. By an ordinance of the City of Atlanta, the decision of the Georgia courts, and the silent acquiescence of the Supreme Court of the United States, this man must give up his right of peaceable assembly with the Negro young people of the South or repudiate the principle of racial equality for which he stands. Almost anybody would call such a dilemma an important matter which the Supreme Court should review. The Court didn’t.

Third degree methods have been, for many years, one of the curses of the government’s efforts to enforce law and order. The zeal of police officers who are certain that they have their man comes in violent conflict with the safeguard which the law provides for the protection of the innocent. The technical details become very complicated, although here, as elsewhere in the law, there is some supposedly sensible rationale behind evey rule. But lines must be drawn and the Supreme Court drew one of them four years ago. It held that a man who had been arrested in Pennsylvania on suspicion in a murder case, and held for five days without counsel while he was interrogated in relays by police officers who admitted that they had purposely delayed arraignment before a magistrate until they had obtained a confession, had been convicted in violation of the Fourteenth Amendment.

During the past term, the Court, in two words, refused to review another conviction in a Pennsylvania court of an accused whose case looked strikingly like the one which established the law of the land. Obviously, such problems involve a judgment as to how close the one case, on the facts, is to the other. At least one Justice thought they were sufficiently close to call for a full review. His was a lone dissenting voice.

For two straight terms, the Court has ducked the issue of movie censorship. Lost Boundaries, a picture of racial relationships, was banned in Atlanta on the ground that it would adversely affect “the peace, morals and good order” of the city. The censor’s decision was upheld by the state courts. The previous term, the Court had a similar case involving the movie Curley, and next term it will probably be Pinky, currently banned in Texas. The cases below turned on the issue of whether movies are entitled to the same freedom of speech and press protection as books and newspapers. The state courts followed a 37-years-old Supreme Court decision which characterized movies as “mere shadows on the wall.” They were “business pure and simple . . . , not to be regarded as part of the press of the country or as organs of public opinion.” If the Supreme Court still believes this, it is certain that the Un-Amcrican Activities Committee does not, and it is doubtful that anyone else does. Nevertheless, the denial of certiorari in these cases, in effect, gives silent approval to the 1915 reasoning and permits state courts to continue to follow it.

Cases other than those involving civil rights sometimes stick out like a sore thumb to anyone taking the trouble to investigate the denials of certiorari. One situation in which the Court, under its rules, is supposed to grant review occurs when a conflict of decision on an important question exists in two or more of the Federal Courts of Appeal. Within the past two terms such a conflict has arisen which the Supreme Court stubbornly refuses to clarify, to the point where it has become a major judicial scandal. In the 1949 term, the Court was asked to review a Court of Appeals decision in which a fugitive from a Georgia chain gang, apprehended in Pennsylvania, sought release in a Federal court on the ground that if he were extradited to Georgia he would again be subjected to cruel and inhuman punishment. His release was ordered. The Supreme Court, however, reversed this decision in a onesentence opinion in which it stated that the prisoner must iirst exhaust his remedies in the state courts. Unfortunately, the Court failed to make clear which stale, the asylum state or the demanding state. In this quandary, a Federal Court of Appeals in one circuit interpreted the Court’s laconic opinion one way, in another circuit otherwise. The Supreme Court refused to review either decision, with the result that today nobody knows the rights of fugitives under long prison or death sentences who escape from one state and seek sanctuary in a sister state.

Another instance of the far-reaching effect of the work which the Supreme Court does not do was its refusal to review the curb which a lower Federal court put on the eflorts oi the Federal Trade Commission to check misleading advertising. A patent medicine advertiser had represented its drug as a tonic, to be taken for that “run down feeling.” The Commission found that it did have beneficial effects when lassitude resulted from an iron deficiency, but it also found that lassitude resulted from other causes more frequently than it did from a deficiency of iron. It therefore ordered the advertiser to state as much. It felt that here was a situation where it was necessary for the advertiser to state what the drug would not do in order to make accurate the statement of what it would do. But the Court of Appeals held that the Commission could not require the advertiser to make a definite derogatory statement about his product.

About all one need do is to listen to the commercials over the radio for half an hour to realize the necessity for some restrictions on the extravagance of advertisers’ claims. To be sure, “puffing" is a time-honored practice and the principle of caveat emptor is pretty well understood by a public immunized to the superlatives of the market place. But after all, there should be some limits on representations as to what ten unidentified New York doctors have proved and what the medical profession prescribes most often. Sick people, their resistance lowered by suffering, are apt to be more vulnerable to such profuse claims than are buyers of cigarettes or soap flakes.

There is much tragedy concealed in the 1002 cases which the Court disposed of with two words, “certiorari denied.” Men have been executed, others have gone to prison for long terms or for life, still others have been banished. The Georgia convict has been held for eight years by the Pennsylvania authorities, and the Supreme Court still declines to clarify his rights. New York Jews can’t buy kosher meats on Sunday. The Federal Trade Commission is frustrated in its attempt to introduce a modicum of decency in advertising. State and municipal censors ban movies which advocate the traditional American principle of equality regardless of race, color, or creed. All such cases the Supreme Court, without saying why, declines to hear. At the same time it gives full review to a dispute over a patent on a pinball machine and an argument that a toy pig supposed to encourage Junior to eat his breakfast is an invention.

What is the significance of all this? Does it mean that the Justices are timid? Are they incompetent? Irresponsible? It doesn’t mean any of these things. On the other hand, it does mean that the people of a nation which thinks of itself as the most democratic in the world know very little of what goes on in its top policy-forming agency. It means far more than the fact that political candidates arc chosen and legislative policies formed in smokefilled rooms behind locked doors. The argument that the time-consuming job of giving reasons for refusal to review would be impractical sounds convincing if vou say it fast. But it one takes I he timeconsuming pains to look into the work which the Court declines to do, it is far from self-evident.

Here is an agency of government which passes final judgment on the acts of the Congress and the Executive; it determines what is permissible policy. Municipal ordinances, state laws, Acts of Congress stand or fall; men are deprived of their life, their liberty, their citizenship, their property, by decisions nine out of ten of which are made behind a curtain, which, while purple and fringed with ermine, is nonetheless opaque.