The Supreme Court of the United States, 1968-1969

AuthorPaul C. Bartholomew
Published date01 March 1970
Date01 March 1970
Subject MatterArticles
University of Notre Dame
of the Supreme Court seems to have something to distinguish
N-~ it from those that have preceded it. With the resignation of Chief Justice
Earl Warren effective at the close of the 1968-69 term, this term will remain
forever as a milestone for it marked the close of the &dquo;Warren era&dquo; as this period
has come to be known. Regardless of how the Court moves ideologically in the
years to come, it will no longer be the &dquo;Warren Court.&dquo; President Nixon named
Minnesota-born and educated Warren Earl Burger of the United States Court of
Appeals of the District of Columbia to fill the vacancy in the office of Chief Justice.
The resignation of Associate Justice Abe Fortas in May gave the newly inaugurated
President another vacancy to fill. Clement Furman Haynsworth, Jr., of Virginia,
Chief Judge of the Fourth Circuit Court of Appeals was named but the Senate
refused confirmation on November 21, 1969. President Nixon then named George
Harrold Carswell, a member of the Fifth Circuit Court of Appeals. Chief Justice
Burger is from Virginia and Justice Carswell is from Florida.
In its work this term the Court again set a new all-time record in cases dis-
posed of with a total of 3,151. In the 1966 and 1967 terms the totals were 2,903
and 2,973, respectively. In each term since that of 1953 the Court has set a new
record of cases disposed of except in the 1958 and 1964 terms. The cases remaining
on the docket increased to another apparently all-time high of 767 compared with
453 and 613 in the previous two terms respectively. Cases argued were down to
140 as against 180 in the 1967 term and 150 in the 1966 term. Of the cases argued,
116 were disposed of by 99 written opinions and 14 by per curiam opinions. Ten
cases were set for reargument.
Again the division of labor in the writing of opinions was well-nigh even
among the justices. Justice Marshall wrote thirteen opinions. Chief Justice War-
ren, Justice Douglas, and Justice Brennan each wrote twelve, and they were fol-
lowed by Justice Black and Justice Stewart with eleven each, and Justice Harlan
and Justice White with ten each. Justice Fortas wrote eight.
Dissenting opinions totaled 77 by comparison with 79 in the 1967 term and
74 in the term before that. Justice Black with eighteen dissenting opinions dis-
placed Justice Harlan with sixteen as the &dquo;champion dissenter.&dquo; They were fol-
lowed by Justices Stewart (thirteen), Douglas (nine), White (eight)~ Fortas (six),
Warren (four), Marshall (two), and Brennan (one).
The Court adjourned on June 23, 1969, the latest date since the June 25
adjournment in 1962.
NOTE: Similar reviews of the work of the Court have appeared in the March 1961 and 1962
and the subsequent December issues of the Western Political Quarterly.

Due Process
The first due process case decided in this term did not give the Court much
trouble. In Gregory v. Chicago (394 U.S. 111; 89 S. Ct. 946) there was involved
the matter of a peaceful march from Chicago City Hall to the Mayor’s residence
to press the claims of the marchers for desegregation of the public schools. The
Chicago police, in order to prevent what they regarded as impending civil disorder,
demanded that the demonstrators, under pain of arrest, disperse and when this
demand was not obeyed the marchers were arrested for disorderly conduct. An
opinion by Chief Justice Warren (vote: 9-0) held that there had been a denial of
due process because of the lack of evidence to support the charge that there was
disorderly conduct. The opinion held that the trial judge’s charge permitted the
jury to convict the accused for acts that were clearly entitled to First Amendment
In Foster v. California (394 U.S. 440; 89 S. Ct. 1127) there had been a con-
viction of robbery of a Western Union office. Following this the office manager
viewed a police station line-up of three men in which two were much shorter than
the accused. The manager, who was not able to identify Foster as the robber, was
permitted to speak with Foster and later, the manager still being uncertain, in
another line-up of Foster and four different men the manager identified him as
the robber. In an opinion by Justice Fortas (vote: 5-4) the Court held that the
&dquo;suggestive elements in this identification procedure made it all but inevitable that&dquo;
the office manager would identify Foster as the robber. The Court noted this pro-
cedure &dquo;so undermined the reliability of the eye witness identification as to violate
due process.&dquo; (P. 443.) In his dissenting opinion Justice Black held that issues
such as the one involved in this case &dquo;can usually be tried more efficiently, and just
as fairly, by the local court that tried the case or by the local appellate court that
heard the first appeal. This Court was not established to try such minor issues of
fact for the first time.&dquo; (P. 452.)
question that came out of the Panama Canal Zone during the January 1964
riots was before the Court in National Board of Young Men’s Christian Association
v. United States (395 U.S. 85; 89 S. Ct. 1511). The YMCA
Building and Masonic
Temple are situated next to each other on the Atlantic side of the Canal Zone at
its boundary with the Republic of Panama. After rioting began many members
of the mob proceeded to these buildings, entered them and began looting and
wrecking the interiors and started a fire in the YMCA
Building. United States Army
troops then entered the buildings, ejected the rioters, and were then deployed out-
side the buildings. The mob began to assault the soldiers with rocks, bricks, plate
glass, Molotov cocktails, and intermittent sniper fire. The troops then moved inside
the buildings so that the men might be better protected from the sniper fire. The
petitioners sought compensation for the damage done to their buildings by the
rioters after the troops had entered the buildings. An opinion by Justice Brennan
(vote: 7-2, Black and Douglas dissenting) held that the Fifth Amendment does not
require that persons be compensated for damages under the circumstances of this
case. &dquo;It is clear that the mission of the troops forced inside the buildings con-

tinued to be the protection of those buildings ... where, as here, the private party
is the particular intended beneficiary of the governmental activity, ’fairness and
justice’ do not require that losses which may result from that activity ’be borne by
the public as a whole,’ even though the activity may also be intended incidentally
to benefit the public.... Were it otherwise, governmental bodies would be liable
under the Just Compensation Clause to property owners every time policemen
break down the doors of buildings to foil burglars thought to be inside.... Ordi-
narily, of course, governmental occupation of private property deprives the private
owner of his use of the property, and it is this deprivation for which the Constitu-
tion requires compensation.... There are, however, unusual circumstances in which
governmental occupation does not deprive the private owner of any use of his
property. For example, the entry by firemen upon burning premises cannot be
said to deprive the private owners of any use of the premises.... We conclude that
the temporary, unplanned occupation of petitioners’ buildings in the course of
battle does not constitute direct and substantial enough government involvement
to warrant compensation under the Fifth Amendment.&dquo; (Pp. 91-93.) Justice
Black, in his dissenting opinion, in which he was joined by Justice Douglas, noted
that &dquo;the Army made the two buildings the particular targets of the rioters and the
buildings suffered heavy damage. The Army’s action was taken not to save the
buildings but to use them as a shelter and fortress from which, as the Court of
Claims found, ’to seal off the border from further incursions by the rioters into the
Atlantic portion of the Canal Zone.’... the taking by the Army was for the benefit
of the public generally.... ’Whenever the Government determines that one per-
son’s property -
whatever it may be -
is essential to the war effort and appro-
priates it for the common good, the public purse, rather than the individual, should
bear the loss.’ &dquo; (P. 99.)
A church property dispute arose when two local churches withdrew from a
hierarchical general church organization. Under Georgia law the right to the
property previously used by the local churches was made to turn on a civil court jury
decision as to whether the general church abandoned or departed from the tenets
of faith and practices held at the time the local churches affiliated with it. In Pres-
byterian Church in the United States v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church (393 U.S. 440; 89 S. Ct. 601) the Court speaking through
Justice Brennan (vote: 9-0) held that &dquo;the First Amendment severely circum-
scribes the role that civil courts may play in resolving church property disputes.
the Amendment therefore commands civil courts to decide church
disputes without resolving underlying controversies over religious doctrine.... The
First Amendment prohibits a state from employing religious organizations as an
arm of the civil judiciary to perform the function of interpreting and applying state
standards.... Thus, a civil court may no more review a church decision applying a

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