The Supreme Court of the United States, 1971-1972

Date01 December 1972
Published date01 December 1972
Subject MatterArticles
University of Notre Dame
THE HISTORIANS of the future set a &dquo;watershed&dquo; point between the
&dquo;Warren Court&dquo; and the &dquo;Burger Court&dquo; the recent term of the Court un-
doubtedly will be a part of that dividing line. The close vote in a considerable
number of cases was one indication of a transitional stage. Too, in this term the
nature of a remarkable number of the cases supported the proposition that this is
a public law court.
Once again the Court operated without a full complement of justices for much
of its term. The death of Associate Justice Hugo L. Black before the opening of the
term and the retirement and later death of Associate Justice John M. Harlan left
only seven justices participating in proceedings until Lewis F. Powell and William
H. Rehnquist took the oath on January 7, 1972. Even then there was a period of
abstention by them from voting and decisions because they had not been present for
the oral arguments.
As to the statistical &dquo;box score&dquo; for the term, the Court disposed of a total of
3,645 cases, a new all-time record. In the 1970-71 term it was 3,322 (as corrected
in the publication of this year’s statistics) and in the 1969-70 term the total was
3,409. The number of cases remaining on the docket declined slightly from the
previous term’s 890 to 888. Cases argued went to 176 (including one of original
jurisdiction now pending) from the 151 and 144 respectively of the two previous
terms. A
rather dramatic increase came in the number of cases disposed of by signed
opinions, 143 by 129 signed opinions compared with 126 by 109 signed opinions in
the previous term. Per curiam opinions remained stable with 24 this term and 22
the previous term. Cases set for reargument this term were 5 compared with 3 in
the 1970-71 term.
As to the &dquo;case load&dquo; of the justices in the writing of opinions, Justices Brennan,
Stewart and White each wrote 18, Justice Marshall wrote 15, Justice Douglas did
13, Chief Justice Burger, and Justices Blackmun and Powell each wrote 12, and
Justice Rehnquist wrote 1 l. The number written by Justices Powell and Rehnquist
is surprising in light of the fact that they did not begin to serve until January 7,
1972, and thus missed the oral argument on a number of cases.
Dissenting opinions this term increased to 125 from the 91 of the 1970-71 term,
which may well be an all-time record, while Douglas may have become the all-time
champion dissenter with 46 dissenting opinions. In second place this term was
Marshall with 19 followed by Brennan (16), Burger and Blackmun (10 each),
Stewart (7), White and Rehnquist (6 each ) , and Powell (5).
This term of the Court also saw E. Robert Seaver resign as Clerk and the
NOTE: Similar reviews of the work of the Court have appeared in the March 1961 and 1962
and the subsequent December issues of the Yhestern Political Quarterly with one excep-
tion : the March 1970 issue contains the review instead of the December 1969 issue.

appointment of Michael Rodak, Jr., to succeed him, as well as the retirement of
T. Perry Lippitt as Marshall and the appointment of Frank M. Hepler to the post.
The Court adjourned on June 29, 1972, just one day short of last year’s date,
the latest date the Court has ever adjourned. Then the Court held a rare Special
Term on July 7, 1972, only the fifth special session held by the Court in this century.
This one was to deal with the problem of certification of delegates to the Demo-
cratic National Convention.
Due Process
Intermittently for eighteen years, during which time they had three children,
Joan Stanley lived with Peter Stanley. When Joan Stanley died, in accordance
with Illinois law governing the children of unwed fathers, Peter Stanley’s children
became wards of the state. Under this statute the state need not prove unfitness of
the unwed father in fact because it is presumed at law. Stanley appealed the deter-
mination claiming that he had never been shown to be an unfit parent and since
married fathers and unwed mothers could not be deprived of their children without
such showing he had been denied equal protection of the laws under the Fourteenth
Amendment. The Court, speaking through Justice White (vote: 5-2, Burger and
Blackmun dissenting, Powell and Rehnquist abstaining), agreed in Stanley v. State
of Illinois (405 U.S. 645; 92 S. Ct. 1208) . &dquo;The State’s interest in caring for Stan-
ley’s children is de minimis if Stanley is shown to be a fit father. It insists on pre-
suming rather than proving Stanley’s unfitness solely because it is more convenient
to presume than to prove. Under the Due Process Clause that advantage is insuffi-
cient to justify refusing a father a hearing when the issue at stake is the dismember-
ment of his family.&dquo; (Pp. 657-58) . The Court also noted that denying a hearing to
Stanley while granting it to other Illinois parents is inescapably contrary to the
Equal Protection Clause. Chief Justice Burger in his dissenting opinion noted
that &dquo;the only constitutional issue raised and decided in the courts of Illinois in this
case was whether the Illinois statute which omits unwed fathers from the definition
of ’parents’ violates the Equal Protection Clause.... No due process issue was raised
in the state courts; and no due process issue was decided by any state court.&dquo;
(P. 659.)
Under Kentucky law there is a two-tier system for adjudicating certain crimi-
nal cases whereby a person charged with a misdemeanor may be tried first in an
inferior court and, if dissatisfied with the outcome, may have a trial de novo in a
court of general criminal jurisdiction. However, he must run the risk, if convicted,
of receiving a greater punishment. Lewis Colten was arrested for disorderly conduct
for refusing orders of a state police officer to leave a congested roadside outside
Lexington. Colten was convicted and fined ten dollars. He exercised his right under
the Kentucky statute to take his case to a court of general jurisdiction. There he
was convicted and was fined fifty dollars. This procedure was challenged in Colten
v. Commonwealth of Kentucky (407 U.S. 104; 92 S. Ct. 1953) as being unconsti-
tutionally vague and violative of due process. An opinion by Justice White (vote:
7-2, Douglas and Marshall dissenting) upheld the state statutory arrangement. &dquo;We

are not persuaded, however, that the Kentucky arrangement for dealing with the
less serious offenses disadvantages defendants any more or any less than trials con-
ducted in a court of general jurisdiction in the first instance, as long as the latter are
always available.... In reality his choices are to accept the decision of the judge
and the sentence imposed in the inferior court or to reject what in effect is no more
than an offer in settlement of his case and seek the judgment of judge or jury in the
superior court, with sentence to be determined by the full record made in that
court.&dquo; (Pp. 118-19.) Justice Marshall disagreed, noting, &dquo;Certainly a defendant
has good reason to fear that his case will not be well received by a second court after
he rejects a disposition as favorable as the sentence originally imposed in this case.
This case involves a new trial without an
appellate reversal. The core problem
is the second trial.&dquo; (Pp. 126-27.)
The constitutionality of Florida and Pennsylvania statutes was before the Court
in two cases decided by one opinion by Justice Stewart (vote: ~---3, White, Burger,
and Blackmun dissenting, Powell and Rehnquist abstaining) in Fuentes v. Sherin
(407 U.S. 67; 92 S. Ct. 1983). Both statutes authorize the summary seizure of goods
or chattels in a person’s possession and neither statute provides for notice to be given
to the possessor of the property and neither statute gives the possessor an opportunity
to challenge the seizure at any kind of prior hearing. After the property has been
seized there is opportunity for a hearing in the court trial for repossession. The
Court held this not to be adequate noting that for more than a century procedural
due process has meant the right to be heard after notification. &dquo;If the right to notice
and a hearing is to serve its full purpose, then, it is clear that it must be granted at
a time when the deprivation can still be prevented.... But no later hearing and no
damage award can undo the fact that the arbitrary taking that was subject to the
right of procedural due process has already occurred.... This is no new principle of
constitutional law. The right to a prior hearing has long been recognized by this
Court under the Fourteenth and Fifth Amendments.&dquo; (Pp. 81-82.) Justice White’s
dissenting opinion claimed that &dquo;it is very doubtful in my mind that such a hearing
would in fact result in protections for the debtor substantially different from those
the present laws provide. On the contrary, the availability of credit may well be
diminished or, in any event, the expense of securing it increased.... I am content to
rest on the judgment of those who have wrestled with these problems so long and
often and upon the judgment of the legislatures that have considered and so recently
adopted provisions that contemplate precisely what has happened in these cases.&dquo;
(Pp. 102-3.)
From 1959 to 1969 Robert Sindermann was a teacher in the state college
system of Texas. Most recently he had been at Odessa Junior College...

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