Supreme Court Behavior and Civil Rights

• Author: S. Sidney Ulmer
• Published date: 01 June 1960
• Date: 01 June 1960
• DOI: http://doi.org/10.1177/106591296001300202
• Subject Matter: Articles

SUPREME COURT BEHAVIOR AND CIVIL RIGHTS
S. SIDNEY ULMER
Michigan State University
I
HE HIGHLIGHT of the 1956 term of the United States Supreme Court
was the expanded protection given civil liberties. Court holdings con-
siderably weakened the restrictive provisions of the Smith Act/ opened
FBI files to defendants in certain cases,2 and established safeguards around the
exercise of congressional investigatory powers.3
3
The term was also notable for
the fact that voting statistics identified the operation of a new libertarian4 bloc
of Douglas, Black, Warren, and Brennan. While the 1957 term continued the
same general patterns, analysis reveals several highly suggestive deviations. The
purpose of this paper is to explore the patterns of judicial behavior in civil
liberties cases decided by the Court in the 1957 term. A focus on this particular
area of decision-making is justified by the heavy emphasis in American Public
Law on civil liberties problems. Selection of such a focus is buttressed further
by the suspicion abroad that attitude on the part of the Court has had too much
and the law too little to do with deciding such cases in recent years. One should
recognize, of course, that diagnosis of the motives underlying positions taken by
Supreme Court justices is fraught with peril. But one cannot ignore phenomena
which appear from the record. Nor should one close one’s ears to confessions of
garrulous judges that it is now popular on the Court &dquo;to regard every so-called
civil liberties question as constitutionally self-answering.&dquo; 5
The identification of civil liberties cases presents some difficulty. But since
this discussion is not to explore semantical problems a simple definition is
adopted. In this paper a civil liberties case is one involving a claimed right of the
type covered by the Bill of Rights and Civil War Amendments to the Constitu-
tion. On this definition it makes no difference whether the claim calls for con-
stitutional or statutory interpretation as long as the right involved is primarily a
personal rather than a property right.
Within the framework of this definition the Supreme Court decided forty-
six civil liberties cases in the 1957 term.6 This is an increase of twelve over the
previous term. While 71 per cent of the 1956 cases involved claims against the
1
Yates v. U.S., 354 U.S. 298 (1956).
2

Jencks v. U.S., 353 U.S. 657 (1957).
3

Watkins v. U.S., 354 U.S. 178 (1957). On balance the 1956 civil liberties rulings of the Court
led to charges that the Court was once again asserting itself as a super-legislature and super-
executive. See in this regard Ralph F. Bischoff, "Constitutional Law and Civil Liberties,"
Annual Survey of American Law (1958), pp. 50-81, and the New York Times, June 25,
1957, p. 1; July 1, 1957, p. 1.
4
The terms "libertarian" and "bloc" are defined and discussed at a later point in this paper.
"Libertarian" as used here simply means those justices most favorable to civil liberty claims.
5
Felix Frankfurter, "Mr. Justice Roberts," 104 U. of Pa. L. Rev., 311 (1955).
6

Harmon v. Brucker, 355 U.S. 578 (1958); Kent v. Dulles, 357 U.S. 116 (1958); Dayton v. Dulles,
357 U.S. 144 (1958); Perez v. Brownell, 356 U.S. 44 (1958); Nishikawa v. Dulles, 356 U.S.
129 (1958); Trop v. Dulles, 356 U.S. 86 (1958); Lawn v. U.S., 355 U.S. 339 (1958); Eubanks
288

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289
federal government or its officers, only 43 per cent are so classified in the 1957
term. Claims against the state or its officers increased from 29 to 50 per cent. It
is unlikely that the number of claims against either state or federal government
varied significantly from one year to the next. The figures suggest, therefore, that
the Court was less disposed to hear claims against the federal government in the
latter term and more disposed to hear claims against the states. One reason for
this might be that the Court was less inclined to decide civil liberties claims
against the federal government in the 1957 term. On the same basis one should
suppose that the Court was more willing to decide against the state. These ex-
pectations flow from the fact that the Court has virtually complete control of its
docket. Access to this docket, for all practical purposes, is at the discretion of the
Court or of four of its justices where the case comes up on certiorari. The first
inference is supported by the evidence since only 65 per cent of the cases were
decided against the federal government in the 1957 term as against 75 per cent
in the preceding term. The inference respecting state cases, however, is not sup-
ported by the relevant data. The Court held against the state in 70 per cent of
the 1956 cases but in only 52 per cent of those decided in the following term.
This points to probable differentiation among blocs of justices on the question of
access to the Court. Investigation would likely reveal a higher compositional cor-
relation between blocs bringing up and deciding federal cases than between blocs
bringing up and deciding state cases. It is reasonable to surmise that the percent-
age of state cases gaining access to the Court through permission of minimal
four-justice blocs increased from 1956 to 1957. The justices are not likely to bring
up cases involving claims against a state for the purpose of affirming the denial
of the claim at a lower level. Thus it appears that in a number of instances the
four-justice blocs responsible for bringing up the state cases were not able to pick
up the fifth vote needed to hold for the claimant. The blocs responsible for bring-
ing up the federal cases do not seem to have had this particular difficulty. A
fail-
ure of the type indicated should, of course, be reflected in a less favorable dis-
position of the Court as a whole toward civil liberties claims. Analysis verifies
v. Louisiana, 356 U.S. 584 (1958); Benanti v. U.S., 355 U.S. 96 (1957); Eskridge v. Wash-
ington, 357 U.S. 214 (1958); Lambert v. California, 355 U.S. 225 (1957); Staub v. City of
Baxley, 355 U.S. 313 (1958); Ciucci v. Illinois, 356 U.S. 571 (1958); Hoag v. New Jersey,
356 U.S. 464 (1958); Thomas v. Arizona, 356 U.S. 390 (1958); Payne v. Arkansas, 356 U.S.
560 (1958); Alcorta v. Texas, 355 U.S. 28 (1957); Moore v. Michigan, 355 U.S. 155 (1957);
Yates v. U.S. (1), 355 U.S. 66 (1957); Yates v. U.S. (2), 356 U.S. 363 (1958); Brown v.
U.S., 356 U.S. 148 (1958); Green v. U.S. (1), 355 U.S. 184 (1957); Green v. U.S. (2), 356
U.S. 165 (1958); Rathbun v. U.S., 355 U.S. 107 (1957); Conley v. Gibson, 355 U.S. 41
(1957); Youngdahl v. Rainfair, 355 U.S. 131 (1957); Sacher v. U.S., 356 U.S. 576 (1958);
Ashdown v. Utah, 357 U.S. 426 (1958); Knapp v. Schweitzer, 357 U.S. 371 (1958);
N.A.A.C.P. v. Patterson, 357 U.S. 449 (1958); Lerner v. Casey, 357 U.S. 468 (1958); Beilan
v. Board of Education of the City of Philadelphia, 357 U.S. 399 (1958); Abramowitz v.
Brucker, 355 U.S. 578 (1958); Wilson v. Leow’s, 355 U.S. 597 (1958); First Unitarian
Church v. Los Angeles, 357 U.S. 545 (1958); Valley Unitarian Church v. Los Angeles, 357
U.S. 545 (1958); Speiser v. Randall, 357 U.S. 513 (1958); Prince v. San Francisco, 357 U.S.
513 (1958); Cicenia v. La Gay, 357 U.S. 504 (1958); Caritativo v. California, 357 U.S. 549
(1958); Rupp v. Dickson, 357 U.S. 549 (1958); Jones v. U.S., 357 U.S. 493 (1958); Miller
v. U.S., 357 U.S. 301 (1958); Gore v. U.S., 357 U.S. 386 (1958); Crooker v. California, 357
U.S. 433 (1958); Giordenello v. U.S., 357 U.S. 480 (1958).

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290
that over-all the Court was more sympathetic to such claims in the 1956 term
than in the term following. Thus while 26 per cent of the claims were denied in
the 1956 term, the following term featured denials in 41 per cent of the cases.
The foregoing data strongly suggests a greater differentiation in the attitudes of
Supreme Court justices toward claims against the state than toward claims
against the federal government. In short, the present balance of power on the
Court seems more permissive toward state activity than toward federal and, over-
all, more permissive toward governmental activity in general in the civil liberties
field.
II
TABLE I
CIVIL RIGHTS MOST FREQUENTLY IN CONTENTION IN THE 1957 TERM
* Yates v. U.S. (1), Eubanks v. Louisiana, Ciucci v. Illinois, Hoag v. New Jersey, Gore v. U.S., Green v. U.S. (1).
j’ Staub v. City of Baxley, Youngdahl v. Rainfair, First Unitarian Church v. Los Angeles, Valley Unitarian Church
v.Los Angeles, Prince v. San Francisco, Speiser v. Randall.
f Trop v. Dulles, Perez v. Broaunell, Nishikawa v. Dulles, Kent v. Dulles, Dayton v. Dulles.
z
§ Benanti v. U.S., Rathbun v. U.S., Jones v. U.S., Miller v. U.S., Giordenello v. U.S.
~ Includes two wiretap cases: Benanti v. U.S. 355 U.S. 107 (1957) and Rathbun v. U.S., 355 U.S. 96 (1957).’
*&dquo; Green v. U.S. (2), Eubanks v. Louisiana, Harmon v. Brucker, Abramowitz v. Brucker.
f
fi Ashdown v. Utah, Payne v. Arkansas, Thomas v. Arizona, Crooker v. California.
Crooker v. California, Cicenia v. La Gay, Moore v. Michigan.
The substantive rights most frequently in contention before the Court in the
1957 term were the traditional ones pertaining to speech, counsel, search and
seizure, etc. But not quite so traditional was the fact that five of the forty-six civil
liberties cases involved claimed rights of citizenship. Table I shows that only
cases concerning free speech and former jeopardy exceeded in number the citizen-
ship cases.
While constitutional and statutory requirements were certainly important
factors in civil...