The Supreme Court of the United States, 1970-1971

• Published date: 01 December 1971
• Date: 01 December 1971
• DOI: http://doi.org/10.1177/106591297102400405
• Subject Matter: Articles

THE SUPREME COURT OF THE UNITED STATES,
1970-1971
PAUL C. BARTHOLOMEW
University of Notre Dame
HILE
the Supreme Court this past term did not reach the heights of the
spectacular of other terms it had its moments. True, one of its most
publicized opinions, the 18-year-old voting case, was quickly thereafter
rendered a virtual nullity by the ratification of the Twenty-sixth Amendment to the
Constitution; and another of its &dquo;spectaculars&dquo; was a &dquo;quickie&dquo; decision in the
&dquo;Pentagon Papers&dquo; case that was hardly judicially satisfying. Nevertheless there
were important decisions with a mixture of liberal and conservative ideology but
with the trend perceptively toward the conservative point of view.
During this term the Court disposed of a total of 3,422 cases, thus again
setting an all-time record. In the two previous terms the number was 3,409 (1969-
70) and 3,151 (1968-69). The number of cases remaining on the docket declined
slightly to 790 from the previous term’s 793 but still was greater than the 767 of
the 1968 term. Cases argued increased slightly to 151 from the 144 of the 1969
term and the 140 of the 1968 term. More cases were disposed of this term by
signed opinions than in either of the two previous terms, 126 by 109 signed opinions
and 22 by per curiam opinions. Cases set for reargument were down sharply this
term, from 18 in the previous term to 3 this time.
In the always interesting matter of the division of labor among the justices in
the writing of opinions, Justice Stewart led all of the other members of the Court
with 16 opinions. He was followed by Justices Black and Douglas with 14 each,
Chief Justice Burger and Justice White with 13 each, Justice Brennan with 11
1
Justice Harlan with 10, and Justices Marshall and Blackmun with 9 each.
Dissenting opinions this term totaled 91, the highest number in a decade. Doug-
las continued as the champion dissenter with 28 dissenting opinions. Far behind
was Brennan with 13 followed by Black (10), Harlan and Marshall (8 each),
Stewart, White, and Blackmun (7 each), and Chief Justice Burger (3).
The Court adjourned on June 30, 1971, equalling the late adjournment date
of 1958. Normally the Court would have completed its work on June 28 but
extended its term in order to handle the New York Times and Washington Post
cases on the &dquo;Pentagon Papers.&dquo; This same extension of term was indulged in by
the Court in 1957 to decide the case of Wilson v. Girard (354 U.S. 524) which
dealt with the trial of an American soldier by Japanese authorities.
CIVIL LIBERTIES
Due Process
The question of the imposition of the death penalty came before the Court
in another form this term. Actually two cases were decided by one opinion in
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
exception: the March 1970 issue contains the review instead of the December 1969 issue.
687

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688
McGautha v. California (402 U.S. 183; 91 S. Ct. 1445) . One defendant had been
convicted of first degree murder in California and the other in Ohio, and both
were sentenced to death. In both instances the decision as to the penalty to be
imposed was left to the absolute discretion of the jury, this to be decided in Cali-
fornia in a separate proceeding but in Ohio in a single trial and a single verdict.
The questions before the Court were as to the validity of permitting a jury such
discretion and as to determining guilt and punishment in the same proceeding.
In an opinion by Justice Harlan (vote: 6-3, Douglas, Brennan, and Marshall
dissenting) the Court upheld the state action in both instances.
The opinion noted that to attempt to set up governing standards for a jury
would, because of the infinite variety of cases, be either meaningless or a needless
statement of the obvious. In the light of history, experience, and the present limita-
tions of human knowledge the Court could find nothing in the Constitution that
would prevent giving such discretion to a jury. On the second question of whether
the single-verdict procedure unlawfully compels a defendant to become a witness
against himself if he wishes to present evidence on the sole issue of punishment, the
Court held that the state was not required &dquo;to provide an opportunity for peti-
tioner to speak to the jury free from any adverse consequences on the issue of guilt.&dquo;
( P. 220. ) In his dissenting opinion Justice Brennan maintained that the procedures
adopted by both states &dquo;are inconsistent with the most basic and fundamental prin-
ciples of due process.&dquo; (P. 309.) He then added, &dquo;I cannot help concluding that
the Court’s opinion, at its core, rests upon nothing more solid than its inability to
imagine any regime of capital sentencing other than that which presently exists.&dquo;
( Pp. 311-12.)
Paul Bell is a clergyman who uses his car to cover three rural Georgia com-
munities. A five-year-old girl rode her car into the side of his automobile and her
parents claimed damages. Bell was not insured at the time and under Georgia law
the motor vehicle registration and the driver’s license of an uninsured motorist
involved in an accident are to be suspended unless he posts security to cover the
amount of damages claimed by the aggrieved parties in reports of the accident.
In Bell v. Burson (402 U.S. 535; 91 S. Ct. 1586) the Court, speaking through
Justice Brennan (vote: 9-0), held that the statute as drawn was not a valid exer-
cise of state power. The opinion noted that once a license is issued its continued
possession may become essential in the pursuit of a livelihood. Then such a license
cannot be taken away without following procedural due process. This requires
that the state &dquo;must provide a forum for the determination of the question whether
there is a reasonable possibility of a judgment being rendered against him as a
result of the accident.&dquo; (P. 542.)
Related cases decided this term. In answer to the recurring question of the
conduct of defendants during trial the Court, in Mayberry v. Pennsylvania (400
U.S. 455; 91 S. Ct. 499) with an opinion by Justice Douglas (vote: 9-0), held
that where the trial judge does not act the instant the contempt is committed he
should ask a fellow judge to rule on the contempt citation as a requirement of due
process.

---

689
A Wisconsin statute providing for the posting in all retail liquor outlets a
notice of persons who have engaged in &dquo;excessive drinking&dquo; and forbidding sales
or gifts of liquor to these persons was held void in Wisconsin v. Constantineau (400
U.S. 433; 91 St. Ct. 507). An opinion by Justice Douglas (vote: 6-3, Burger,
Black, and Blackmun dissenting) declared that without notice and an opportunity
to be heard there was a violation of due process. The dissenters thought the matter
should have been brought in the state courts first.
Welfare recipients must be allowed access without payment of fees and costs
in actions for divorce under a ruling by the Court in Boddie v. Connecticut (401
U.S. 371; 91 S. Ct. 780). The opinion by Justice Harlan (vote 8-1, Black dissent-
ing) concluded that the state &dquo;owes to each individual that process which, in light
of the values of a free society, can be characterized as due.&dquo; (P. 380.)
Under the principle that no man can be held criminally responsible for con-
duct which he could not reasonably understand to be proscribed, the Court in
a per curiam decision (Palmer v. City of Euclid, Ohio, 402 U.S. 544; 91 S. Ct.
1563) held void Euclid’s &dquo;suspicious person ordinance.&dquo; This provided that any
person found on the street at late or unusual hours at night without any visible or
lawful business and who does not give a satisfactory account for himself may be
fined or imprisoned. This the Court held to be vague and lacking in standards of
guilt.
Religion
Probably the No. 1 question in the field of church-state relations at this point
in time is the matter of state or federal financial support to church-related educa-
tional institutions. In Lemon v. Kurtzman decided with Earley v. DiCenso (403
U.S. 602; 91 S. Ct. 2105), the question of the validity of statutes of Pennsylvania
and Rhode Island was before the Court. Pennsylvania’s plan reimbursed nonpublic
elementary and secondary schools for the cost of teachers’ salaries, textbooks, and
instructional materials, all in specified secular subjects. The arrangement in Rhode
Island was to pay a salary supplement directly to teachers in nonpublic elementary
schools. In an opinion by Chief Justice Burger (vote: 8-0 in Lemon, Marshall
abstaining, and 8-1 in Earley, White dissenting) the Court held both plans void
as contrary to the separation of church and state mandated by the First Amend-
ment. Since parochial schools involve substantial religious activity and purpose, the
surveillance needed to insure that teachers would remain religiously neutral would
give rise to entanglements between church and state. Too, in the area of practical
politics people would find their votes aligned with their religion. While some
involvement of church and state is inevitable, &dquo;the cumulative impact of the entire
relationship arising under the statutes in each State involved excessive entangle-
ment between government and religion.&dquo; (P. 614.)
Another case in the same area was Tilton v. Richardson (403 U.S. 672; 91
S. Ct. 2091). This involved the validity of the federal Higher...