The Supreme Court of the United States, 1969-1970

AuthorPaul C. Bartholomew
Date01 December 1970
Published date01 December 1970
Subject MatterArticles
University of Notre Dame
N AT LEAST one way the recent term of the Supreme Court was different
if not remarkable. For almost the entire term the Court operated effectively
with eight members. Not until the closing weeks, and then too late for him
to take any real part in the hearing and decision of cases, did the Senate confirm
an appointee to fill the vacancy caused by the resignation of Associate Justice Abe

Fortas on May 14, 1969, during the previous term. Only six times before has a
Court seat remained vacant for a year or more, most recently in 1862. After the
Senate refused to confirm two men named by President Nixon, Clement F. Hayns-
worth of Virginia, Chief Judge of the Court of Appeals, Fourth Circuit, and
George Harrold Carswell of Florida of the Court of Appeals, Fifth Circuit, the
Senate confirmed Harry A. Blackmun of Minnesota, a member of the Court of
Appeals, Eighth Circuit, on May 12, 1970, by a vote of 94-0. He took the oath
on June 9. The entire episode marked the first time in forty years -
since Presi-
dent Hoover in 1930 named another Court of Appeals judge, John J. Parker of the
Fourth Circuit -
that the Senate has directly refused to confirm an appointee to
the Court.
Mr. Justice Blackmun’s participation this term was limited to some rela-
tively minor activity, the most noteworthy of which was a dissent with the
Chief Justice and Justice Harlan in Hoyt v. Nebraska (397 U.S. 524; 90 S. Ct.
2241, 1970), a case on obscenity. The dissenters stated that they would have
upheld the state court’s determination that the materials were obscene. What
this declaration portends for future cases of this sort remains to be seen.
In spite of being &dquo;short-handed&dquo; the Court during the recent term disposed
of a total of 3,409 cases, up from the 2,973 and 3,151 totals of the 1967 and 1968
terms respectively for another all-time record. Cases remaining on the docket also
reached another apparently all-time high with 793 as against 613 and 767 in the
previous two terms. Cases argued were up slightly to 144 from the 140 of the
previous term but far short of the record-setting 180 of the 1967 term. Of the
cases argued during the recent term, 105 were disposed of by 88 written opinions
and 21 by per curiam opinions. Eighteen cases were set for reargument, the largest
number in recent years, only the 16 of the 1961 term being close to that number.
The matter of division of labor in the writing of opinions was complicated
by the fact that the Court sat with only eight justices. Justice Douglas and Justice
White each wrote thirteen opinions, Justice Stewart wrote twelve, Chief Justice
Burger wrote eleven, Justices Black, Brennan, and Marshall each wrote ten, and
Justice Harlan wrote nine.
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 with one excep-
tion : the March 1970 issue contains the review instead of the December 1969 issue.

Dissenting opinions totaled 73, down from 77 in the 1968 term and 79 in the
1967 term. Justice Douglas regained the &dquo;championship&dquo; he had held for so long
and then lost in the 1961 term. This time he had twenty-three dissenting opinions
followed by Justice Black with seventeen. The other justices trailed, Burger (nine),
Brennan and Stewart (six each), White (five), Marshall (four), and Harlan
(three) following in that order.
It is pertinent at this point to offer a quotation from the Court’s statement of
statistics at the close of this term. &dquo;Like most statistics, those of the Court must be
read with care because the length and complexity of opinions vary a great deal.
Opinions and cases are not fungible commodities. Moreover, the figures reflect only
a portion of the work product of the Justices. Summer and winter they are pre-
sented a steady flow of ‘one-Justice’ petitions and applications that require prompt
action. These are in addition to the petitions seeking review of lower court deci- ’
sions, and appeals, addressed to the whole Court. A continuous flow of the latter
matters are filed at a rate exceeding 70 per week, on the average, the year around,
and sent to the Justices regularly when they are out of the city.&dquo;
This term also marked the retirement of John F. Davis as Clerk of the Court.
He had served since 1961. In his place E. Robert Seaver was named.
The Court adjourned on June 29, 1970, the latest date since 1958.
Due Process
This term the Court again had before it a case involving the termination of
public assistance payments to a particular recipient, in this case without affording
him the opportunity for an evidentiary hearing prior to termination. The question
for the Court was whether this denies the recipient procedural due process in viola-
tion of the Due Process Clause of the Fourteenth Amendment. In an opinion by
Justice Brennan (vote: 5-3, Burger, Black, and Stewart dissenting) in Goldberg
v. Kelly (397 U.S. 254; 90 S. Ct. 1011) the Court held that &dquo;when welfare is dis-
continued, only a pre-termination evidentiary hearing provides the recipient with
procedural due process.&dquo; (P. 264.) The Court noted further that &dquo;The city’s pro-
cedures presently do not permit recipients to appear personally with or without
counsel before the official who finally determines continued eligibility. Thus a
recipient is not permitted to present evidence to that official orally, or to confront
or cross-examine adverse witnesses. These omissions are fatal to the constitutional
adequacy of the procedures.&dquo; (P. 268.)
In his dissenting opinion Justice Black accused the majority justices of wander-
ing &dquo;out of their field of vested powers&dquo; and transgressing in &dquo;the area constitution-
ally assigned to the Congress and the people.&dquo; (P. 274.) He went on to note that
&dquo;it is obvious that today’s result depends neither on the language of the Constitu-
tion itself or the principles of other decisions, but solely on the collective judgment
of the majority as to what would be a fair and humane procedure in this case.&dquo;
(P. 276.)
In a companion case, Wheeler v. Montgomery (397 U.S. 280; 90 S. Ct. 1026),
the Court applied the same rule to California’s welfare termination provisions.

Juvenile due process has been a concern of the Court in recent terms and in
another case of this sort the Court had before it the question of whether proof
beyond a reasonable doubt is among the essentials of due process and fair treat-
ment required when a juvenile is charged with an act which would constitute a
crime if committed by an adult. In the case of In re Winship (397 U.S. 358; 90
S. Ct. 1068) a twelve-year-old boy had been found guilty of the theft of $112
from a woman’s pocketbook in a locker. Under New York law guilt can be estab-
lished by a preponderance of the evidence and the trial judge ruled on this basis.
An opinion by Justice Brennan (vote: 5-3, Burger, Stewart, and Black dissenting)
reversed the conviction. Citing a considerable listing of cases, the Court noted that
&dquo;it has long been assumed that proof of a criminal charge beyond a reasonable
doubt is constitutionally required.&dquo; (P. 362.) The Due Process Clause was expli-
citly held to require such proof. &dquo;The same considerations that demand extreme
caution in factfinding to protect the innocent adult apply as well to the innocent
child.&dquo; (P. 365.)
None of the dissenting justices could find anything in the Constitution to
require a setting aside of the legislative judgment of the states in this matter. Jus-
tice Black noted that &dquo;The Court has never clearly held ... that proof beyond a
reasonable doubt is either expressly or impliedly commanded by any provision of
the Constitution&dquo; and &dquo;nowhere in that document is there any statement that
conviction of crime requires proof of guilt beyond a reasonable doubt.... I believe
the Court has no power to add to or subtract from the procedures set forth by the
Founders.&dquo; (P. 377.)
Frederick Walz, a New York lawyer and a landowner, brought suit to prevent
the New York City Tax Commission from granting churches exemption from
property taxes. He contended that the exemption forced him to pay higher prop-
erty taxes and was in violation of the provision of the First Amendment prohibiting
the establishment of religion. In an opinion by Chief Justice Burger (vote: 7-1,
Dbuglas dissenting), the Court in Walz v. Tax Commission of the City of New
York (39# U.S. 664; 90 S. Ct. 1409) upheld the church property tax exemption.
The opinion noted that the exemption actually set up a situation of &dquo;neutrality&dquo;
rather than of involvement in &dquo;establishment.&dquo; &dquo;The legislative purpose of the
property tax exemption is neither the advancement nor the inhibition of religion;
it is neither sponsorship nor hostility.... The State has an affirmative policy that
considers these groups as beneficial and stabilizing inffuences in community life
and finds this classification useful, desirable, and in the public interest.&dquo; ( Pp.
In his dissenting opinion Justice Douglas maintained that the &dquo;financial
support rendered here is to the church, the place of worship. A tax exemption
is a sudsidy.&dquo; (P. 704.) He concluded by holding: &dquo;If believers are entitled to
public financial support, so...

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