The Supreme Court of the United States, 1965-1966

Published date01 December 1966
Date01 December 1966
Subject MatterArticles
University of Notre Dame
IS frequently difficult, even impossible, to pinpoint historical lines of demar-
~ cation. Nevertheless it was about 1940 when the Supreme Court of the United
States became &dquo;activist&dquo; in the area of civil liberties and began to place
primary emphasis on these matters rather than on substantive governmental power
questions. Therefore the term of the Court here under consideration marks just
about the quarter-century anniversary of this departure by the Court, a &dquo;depar-
ture,&dquo; incidentally, that is still very much in progress.
The Court set an all-time record of cases disposed of during the 1965 Term.
Records of this sort have been a habit with the Court for the past dozen years
except for the 1958 and 1964 Terms. In the latter Term 2,180 cases were disposed
of as against 2,412 cases in the 1963 Term. In the record-setting 1965 Term, 2,693
cases were cared for by the Court. At the same time a record for the number of
cases remaining on the docket appears to have been set with 591 still awaiting
action as compared with 482 in the 1964 Term and the 1963 Term’s 367. As to the
number of cases argued, there were 131 during the recent Term as against 122 in
the previous one. Of the 131, the Court disposed of 12’2 by 97 written opinions
and 8 by per curiam opinions while one was restored for reargument.
For the most part there was a very even distribution of the work of writing
opinions during this term. Justice Brennan was first with thirteen; Justices Douglas
and Stewart each wrote twelve; Justices Black, Clark, and White each wrote
eleven; Justice Fortas, the Court’s &dquo;freshman,&dquo; wrote ten; Chief Justice Warren
wrote nine and Justice Harlan, eight. Justice Harlan, with fifteen dissenting opin-
ions, regained his dissenting opinion &dquo;championship,&dquo; which he had held since the
1961 Term except for the 1964 Term when he was tied with Justice Black (twelve
each). The other justices ranged in order as follows: Douglas, ten; Black, nine;
Stewart, seven; White and Fortas, six each; Clark, three; and Warren, one.
Brennan wrote no dissenting opinions either in this or the previous term. There
were 57 dissenting opinions this term as compared with 58 in the previous term.
The Court adjourned on June 20, 1966.
Due Process
Cases in this category this past term were chiefly in the area of technical deter-
minations. In State of Georgia v. Rachel (384 U.S. 780; 86 S.Ct. 1’783) the Court
had before it the question of the eligibility of a case for transfer or removal from a
state to a federal trial court. Charges of criminal trespass had been filed against
the defendants after they had refused to leave a privately owned restaurant where
they had sought to obtain service. It was maintained that the request that they
NOTE : Similar reviews of the work of the Court appeared in the March 1961, and 1962, and
the December 1962, 1963, 1964, and 1965 issues of the Western Political Quarterly.

leave the restaurant premises was because they were Negroes. In an opinion by
Justice Stewart (vote: 9-0) the Court noted that the Civil Rights Act of 1964 had
provided for the removal of certain civil actions or criminal prosecutions under
given conditions. The opinion concluded that &dquo;if as alleged in the present removal
petition, the defendants were asked to leave solely for racial reasons, then the mere
pendancy of the prosecutions enables the federal court to make the clear prediction
that the defendants will be ’denied or cannot enforce’ &dquo; in the courts of the state
the right to be free of any attempt to punishment for protected activity. &dquo;It is no
answer in these circumstances that the defendants might eventually prevail in the
state court. The burden of having to defend the prosecutions is itself the denial of
a right explicitly conferred by the Civil Rights Act of 1964....&dquo; (P. 805.)
In a sequel case criminal charges had been brought against twenty-nine people
who were allegedly engaged in civil rights activity in Leflore County, Mississippi,
and the defendants attempted to have the cases removed to a federal trial court.
In City of Greenwood, Mississippi v. Peacock (384 U.S. 808; 86 S.Ct. 1800) an
opinion by Justice Stewart (vote: 5-4, Douglas, Warren, Brennan, and Fortas dis-
senting) held that the circumstances of the case did not qualify the case for removal
under any federal law as interpreted by prior decisions of the Court. Justice Doug-
las in dissent held that the Court was giving &dquo;a narrow, cramped meaning&dquo; to the
removal provisions of the Civil Rights Act of 1964.
matter that has been in and out of the judicial limelight was once more in
it this term, in Sheppard v. Maxwell (384 U.S. 333; 86 S.Ct. 1507 . In a sensa-
tionally publicized case, Dr. Samuel H. Sheppard had been convicted of the mur-
der of his wife in 1954 in Cuyahoga County, Ohio. Here in an application for
habeas corpus the question was whether Sheppard had been deprived of a fair trial
in his state conviction because of the trial judge’s failure to protect the defendant
from &dquo;the massive, pervasive and prejudicial publicity that attended his prosecu-
tion.&dquo; The Court speaking through Justice Clark (vote: 8-1, Black dissenting) held
that Sheppard &dquo;did not receive a fair trial consistent with the Due Process Clause of
the Fourteenth Amendment.&dquo; (P. 335.) The opinion examined in some detail the
conduct of the trial which involved almost unbelievable laxity on the part of the
trial court. Clark noted that &dquo;the totality of circumstances in this case&dquo; raised the
probability of prejudice. &dquo;The case is remanded to the District Court with instruc-
tions to issue the writ and order that Sheppard be released from custody unless the
State puts him to its charges again within a reasonable time.&dquo; (Pp. 352, 363.)
Justice Black dissented without opinion.
Free Speech and Press
A controversial matter, that of pornography and obscenity, that the Court
seems unable to solve even to its own satisfaction was aired in several outstanding
cases this term. One of these was A Book Named
&dquo;John Cleland’s Memoirs of A
Woman of Pleasure&dquo; v. Attorney General of Massachusetts (383 U.S. 413; 86 S.Ct.
975). In this case a book commonly known as Fanny Hill had been adjudged
obscene in a proceeding that put on trial the book itself and not its publisher or
distributor. An opinion by Justice Brennan (vote: 6-3, Clark, Harlan, and White
dissenting) reversed the lower court’s obscenity holding. The &dquo;Roth test&dquo; previously

set forth by the Court in Rothv. United States (354 U.S. 476, 1957) was reiterated.
&dquo;Under this definition, as elaborated in subsequent cases, three elements must
coalesce: it must be established that (a) the dominant theme of the material taken
as a whole appeals to a prurient interest in sex; (b) the material is patently offen-
sive because it affronts contemporary community standards relating to the descrip-
tion or representation of sexual matters; and (c) the material is utterly without
redeeming social value.&dquo; (P. 418.) The Court noted that &dquo;a book cannot be pro-
scribed unless it is found to be utterly without redeeming social value. This is so
even though the book is found to possess the requisite prurient appeal and to be
patently offensive. Each of the three federal constitutional criteria is to be applied
independently; the social value of the book can neither be weighed against nor
canceled by its prurient appeal or patent offensiveness.&dquo; (P. 419.) Justice Clark
in his dissenting opinion held the book to be &dquo;utterly without redeeming social
importance.&dquo; (P. 450.) Justice Harlan made the point that &dquo;no stable approach
to the obscenity problem has yet been devised by this Court&dquo; and then went on to
note that while &dquo;the book has been shown to have some quantum of social value,
that it may at the same time be deemed offensive and salacious, and that the State’s
decision to weigh these elements and to ban this particular work does not exceed
constitutional limits.&dquo; (Pp. 455, 459.)
A different aspect of this problem was studied in Ginzburg v. United States
(383 U.S. 463; 86 S.Ct. 942). Here a federal court had convicted Ralph Ginzburg
of violating the federal obscenity statute. Involved was the question of whether the
&dquo;Roth test&dquo; had been correctly applied. The Court speaking through Justice
Brennan (vote: 5-4, Douglas, Black, Harlan, and Stewart dissenting) upheld the
conviction. The opinion noted that there was abundant evidence that pandering
the business of purveying textual or graphic matter openly advertised to appeal
to the erotic interests of persons -
was involved. The
Court saw no threat to First
Amendment guarantees in its holding but rather felt &dquo;the fact that each of these
publications was created or exploited entirely on the basis of its appeal to prurient
interests strengthens the conclusion that the transactions here were sales of illicit
merchandise, not sales of constitutionally protected matter.&dquo; (Pp. 474, 475.) In
their dissenting opinions Black, Harlan, and Stewart all emphasized the lack of
definiteness in the approach used by the majority. Stewart was particularly indig-
nant at the &dquo;free wheeling&dquo; attitude of the Court. &dquo;Today the Court assumes the
power to...

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