The Supreme Court of the United States, 1963-1964

• Author: Paul C. Bartholomew
• Published date: 01 December 1964
• Date: 01 December 1964
• DOI: 10.1177/106591296401700401
• Subject Matter: Articles

THE SUPREME COURT OF THE UNITED STATES,
1963-1964
PAUL C. BARTHOLOMEW
University of Notre Dame
A CONSISTENCY that seems to know no
ITH
bounds, the Supreme
Court during the recent term continued the history-making course it has
V
been following for some time. Seldom has the Court caused as much con-
troversy as in recent years, and perhaps never have the matters in controversy cov-
ered such a broad field of legal issues.
Each term of late the Court has been setting new records in cases disposed of,
and this term was no exception with a total of 2,412. In the two previous terms the
figures were 2,157 (1961) and 2,350 (1962). Fewer cases (367) were left on the
docket this time after a number of successive years in which the Court had left a
record number (1961 Term, 428; 1962 Term, 474). During the recent term 144 cases
were argued (7 fewer than in the previous term) , of which 123 were decided by
signed opinions, 20 by per curiam opinions, and one case was ordered reargued, this
last a new low for recent terms.
As has been true for a number of years, the division of the labor of writing
opinions was remarkably even among the members of the Court. Justices Brennan,
Stewart, and Goldberg each wrote fourteen, Justice Clark wrote thirteen, Justices
Black and Douglas wrote twelve each, Chief Justice Warren and Justice White wrote
eleven each, and Justice Harlan wrote ten opinions.
Justice Harlan retained his dissenting opinion &dquo;championship&dquo; which he won
in the 1961 Term. He wrote twenty dissenting opinions, down from his previous
figure of twenty-two. Far down in second place was Black with ten followed by
Clark, White, and Goldberg with eight each, Douglas with six, Stewart with five,
Brennan with two, and then Chief Justice Warren with one. In this connection, two
points can be noted. One is that on a single decision day during this term the Court
reversed five prior decisions, which may well be a record. The other is that Justice
Black has now lived to see more of his dissenting opinions become ruling case law
than has any other justice in history. These two points seem to emphasize the trend
and temper of the Court and its decisions. The Court adjourned on June 22, 1964.
CIVIL LIBERTIES
Due Process
Angelika Schneider, a German national by birth, acquired derivative American
citizenship at the age of sixteen through her mother. She went abroad after gradua-
tion from college, married a German national, and, except for two visits to the
United States, has lived in Germany for eight years. The State Department denied
her a passport holding that she had lost her citizenship by continuous residence for
three years in the country of her origin in accordance with federal statutory provi-
NOTE : Similar reviews of the work of the Court appeared in the March 1961, March 1962,
December 1962, and December 1963 issues of the Western Political Quarterly.
595

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596
sions. The matter was before the Court in Schneider v. Rusk (377 U.S. 163; 84 S.Ct.
1187) and the opinion by Justice Douglas (vote: 5-3, Clark, Harlan, and White dis-
senting) held the statute void. &dquo;This statute proceeds on the impermissible assump-
tion that naturalized citizens as a class are less reliable and bear less allegiance to this
country than do the native born. This is an assumption that is impossible for us to
make. Moreover, while the Fifth Amendment contains no equal protection clause,
it does forbid discrimination that is ’so unjustifiable as to be violative of due proc-
ess.’ &dquo; Justice Clark in his dissent noted that the renunciation of citizenship had been
entirely voluntary and after adequate warning. &dquo;She wishes to retain her citizenship
on a standby basis for her own benefit in the event of trouble. There is no constitu-
tional necessity for Congress to accede to her wish.&dquo;
In another passport case (Aptheker v. Secretary of State, 378 U.S. 500; 84 S.Ct.
1659) the Court declared another section of an act of Congress void. Here the Sub-
versive Activities Control Act of 1950 had outlawed passports for members of Com-
munist organizations. An opinion by Justice Goldberg (vote: 6-3, Clark, Harlan,
and White dissenting) held that the right to travel abroad is a part of a citizen’s
&dquo;liberty&dquo; guaranteed in the Due Process Clause of the Fifth Amendment. The Court
also noted the broad character of the statute, and emphasized that &dquo;precision must
be the touchstone of legislation so affecting basic freedoms.&dquo; Justice Clark in his
dissent called attention to the fact that due process does not prohibit reasonable regu-
lation of life, liberty, or property. &dquo;The right to travel is not absolute. Congress had
ample evidence that use of passports by Americans belonging to the world Commu-
nist movement is a threat to our national security.&dquo;
One of the &dquo;sit-in&dquo; cases this past term was Bouie v. City of Columbia (378 U.S.
347; 84 S.Ct. 1697). Here two Negroes had entered a restaurant and had taken
seats there. Then an employee of the store put up a chain with a &dquo;no trespassing&dquo;
sign attached but the Negroes remained seated. Subsequently they were convicted of
criminal trespass. An opinion by Justice Brennan (vote: 6-3, Black, Harlan, and
White dissenting) held that the accused did not have fair warning that their conduct
was rendered criminal by a South Carolina statute which prohibition of &dquo;entry after
notice&dquo; had been interpreted by the state courts to include remaining on the premises
after notice to leave. &dquo;The crime for which these petitioners stand convicted was not
enumerated in the statute at the time of their conduct. It follows that they have been
deprived of liberty and property without due process of law in contravention of the
Fourteenth Amendment.&dquo; Justice Black in his dissent noted that &dquo;the South Caro-
lina courts relied in part on the fact that it has long been accepted as the common law
of that state that a person who enters upon the property of another by invitation
becomes a trespasser if he refuses to leave when asked to do so.&dquo;
The frequently recurring question of loyalty oaths was before the Court again
this term in Baggett v. Bullitt (377 U.S. 360; 84 S.Ct. 1316). This was an action
brought by certain members of the faculty, staff, and student body of the University
of Washington to enjoin enforcement of a Washington state statute requiring an
oath by teachers and state employees generally regarding their attitudes toward
federal and state constitutions and laws, and their activities and membership in sub-
versive organizations. An opinion by Justice White (vote: 7-2, Clark and Harlan

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597
dissenting) held the statute void primarily because of vagueness. &dquo;Here the uncer-
tain issue of state law does not turn upon a choice between one or several alternative
meanings of a state statute. The challenged oath is not open to one or a few interpre-
tations, but to an indefinite number.&dquo; Justice Clark in his dissent was very critical
of the Court’s action. &dquo;It is strange that the Court should find the language of this
statute so profoundly vague when in 1951 it had no such trouble with the identical
language presented by another oath in Gerende v. Board of Supervisors of Elections,
341 U.S. 56.... It is unfortunate that Gerende is overruled so quickly.... Such
action cannot command the dignity and respect due to the judicial process.... To
so interpret the language of the Act is to extract more sunbeams from cucumbers
than did Gulliver’s mad scientist. And to conjure up such ridiculous questions, the
answers to which we all know or should know are in the negative, is to build up a
whimsical and farcical straw man which is not only grim but Grimm.&dquo;
Free Speech and Press
In a &dquo;first time&dquo; case the Court was asked in New York Times Company v.
Sullivan (376 U.S. 254; 84 S.Ct. 710) to determine the extent to which constitu-
tional safeguards of speech and press restrict libel action brought by a public official
against critics of his official conduct. Here Sullivan, a Commissioner of the city of
Montgomery, Alabama, had brought suit in an Alabama court against the New York
Times alleging that he had been libeled by a full-page advertisement which included
some false statements. An
opinion by Justice Brennan (vote: 9-0) held that a state
cannot, under the First and Fourteenth Amendments, award damages to a public
official for defamatory falsehood regarding his official conduct unless the officer can
prove &dquo;actual malice.&dquo; Since the evidence of such malice was here &dquo;constitutionally
insufficient,&dquo; the Court held that the suit could not be maintained.
The frequently recurring matter of movie censorship was again before the Court
in Jacobellis v. State of Ohio (3’78 U.S. 184; 84 S.Ct. 1676). Here state courts had
declared a film obscene. The Court, speaking through Justice Brennan (vote: 6-3,
Warren, Harlan, and Clark dissenting) reiterated that obscenity is not subject to con-
stitutional protection and that the Court must in such cases make &dquo;an independent
constitutional judgment on the facts of the case as to whether the material involved
is constitutionally protected.&dquo; The state determination was reversed. The dissenting
justices thought that the lower federal and state courts should be allowed wide lati-
tude in such cases guided by the rule of the Roth case that something is obscene if
&dquo;to the average person, applying...