Murphy, Frank (1890–1949)

• Author: Eugene Gressman
• Pages: 1768-1769

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President FRANKLIN D. ROOSEVELT appointed Frank Murphy to the Supreme Court in 1940. Murphy, who had been mayor of Detroit and governor of Michigan, was ATTORNEY GENERAL at the time of his appointment as a Justice. As attorney general he created the Civil Rights Section (now division) of the Department of Justice and supported a vigorous antitrust program. As spokesman for the Supreme Court in constitutional matters, Murphy made modest but significant contributions. But as author of CONCURRING and DISSENTING OPINIONS in constitutional areas of individual freedom, Murphy voiced some of the more eloquent and impassioned defenses of human liberty in the Court's history.

Murphy's tenure on the Court spanned the decade of the 1940s. That period witnessed the consolidation of the federal and state power to deal with pressing economic and social problems. Murphy eagerly joined in this judicial retreat from the philosophy of LOCHNER V. NEW YORK (1905). Murphy's contribution to the de-Lochnerization of constitutional law was highlighted by his opinions for the Court in North American Co. v. Securities & Exchange Commission (1946) and American Power & Light Co. v. Securities & Exchange Commission (1946). Those decisions validated the "death sentence" clauses of the PUBLIC UTILITY HOLDING COMPANY ACT of 1935, the last major piece of NEW DEAL legislation to be challenged. In language reminiscent of JOHN MARSHALL'S language in GIBBONS V. OGDEN (1824), Murphy declared that the COMMERCE CLAUSE

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is "an affirmative power commensurate with the national needs." It gives Congress authority "to undertake to solve national problems directly and realistically, giving due recognition to the scope of state power," as well as to other constitutional provisions.

His first assignment to write a Court opinion produced a historic chapter in the development of FREEDOM OF SPEECH. In THORNHILL V. ALABAMA (1940) the Court held an Alabama antipicketing statute unconstitutional on its face. Murphy wrote that information concerning labor disputes is "within the area of free discussion ? guaranteed by the Constitution." Such speech can be abridged only if there is a CLEAR AND PRESENT DANGER that substantive evils may arise before the merits of the discussion can be tested in the market of public opinion. The Court, though later permitting certain "time, place, and manner" restrictions on picketing, has never repudiated the Thornhill doct...