The Warren Court - After Three Terms

Published date01 December 1956
AuthorClyde E. Jacobs
Date01 December 1956
Subject MatterArticles
University of California, Davis
ITS 1955 term ended in June, 1956, the Supreme Court of
the United States was once again a center of interest, both as an
object of severe criticism and as a subject of widespread speculation.
In general, the interest in the Court derived from its decisions in cases
involving important issues of individual liberties, national security, and
states’ rights. The criticism, somewhat less vehement than that begun in
1953 as a result of the decisions in the public school segregation cases,’
was at the same time less sectional. In Congress certain Northern Republi-
cans joined already embittered Southern Democrats in denouncing the
Court and in attacking those decisions which reflected a libertarian view-
point. Legislative proposals to curb the Court, to prescribe judicial ex-
perience as a qualification for appointment, and to reverse certain con-
troversial decisions, multiplied.2
Speculation and comment occurring in
newspapers and popular magazines centered around the voting behavior of
Chief Justice Warren, who had identified himself closely with the old
liberal bloc made up of Justices Black and Douglas.
In October, 1953, when Earl Warren was sworn as Chief Justice of the
United States, the Court was sharply divided into two unbalanced blocs.
On the one hand, the remaining Truman appointees - Justices Burton,
Clark, and Minton - along with Justice Reed, a Roosevelt appointee, con-
stituted the conservative wing.3 During the four previous terms of the
Court, 1949-52, this group, led or supported by Chief Justice Vinson, had
dominated as a stable majority in disposing of cases involving issues of civil
liberties versus governmental authority.4 On the other hand, the liberal
bloc, long powerful before the deaths of Justices Murphy and Rutledge in
1949, had dwindled to only two members, Justices Black and Douglas. The
Brown v. Board of Education, 347 U.S. 483 (1954), and Bolling v. Sharpe, 347 U.S. 497
Typical of the seventy-odd measures introduced in the Eighty-Fourth Congress were: H.R.
3 (by Rep. Howard Smith, Va.), to prevent the Court from interpreting federal laws
as superseding state legislation, unless Congress so provided; H.R. 11600 (by Rep.
George Huddleston, Ala.), to limit the Court’s appellate jurisdiction; H.R. 11960 (by
Rep. Frank Smith, Miss.), to prescribe qualifications for appointment to the Supreme
Court and the Courts of Appeals; and S. 3995 (by Sen. Karl Mundt, S.D.), to reverse
the Court’s interpretation of requirements for denaturalization proceedings.
The word "conservative," as used in this article, applies to those justices who support a
relatively restrictive interpretation of civil liberties — both constitutional and statutory.
"Liberal" is used interchangeably with "libertarian." Whether or not the reader agrees
with these definitions will depend upon many factors, not the least of which is his own
attitude toward the role of the judiciary in a democratic society.
C. Herman Pritchett, Civil Liberties and the Vinson Court (Chicago: University of
Chicago Press, 1954), pp. 227-28.

remaining members of the Court over which Warren was to preside were
Justices Frankfurter and Jackson. These latter had, during previous terms,
displayed pronounced affinity in voting behavior, but neither could be
clearly identified with either the liberal or the conservative wing.5 The
Warren appointment was, in every sense, a critical one. If he identified
himself with the conservative four as his predecessor had done, a conserva-
tive majority would emerge. But should his judicial philosophy align him
with the two liberals, the conservative bloc, although maintaining a distinct
numerical advantage, would have to rely upon either Jackson or Frankfurter
for support.
The most notable development in the voting behavior of the Court
during Warren’s first term was the decline in the number of dissenting
votes -
this marking a sharp reversal of a four-year trend toward ever
greater disagreement. Moreover, the percentage of unanimous decisions,
although still small, rose moderately.6 As figures in the table reveal, the
total number of dissenting votes declined from 228 in 1952-53 to 154 in
1953-54. The decrease, in part, may be explained by the increasing com-
patibility of Justices Black, Douglas, and Frankfurter with the Court
majority in cases resulting in final disposition. It should be noted that only
the justices of the liberal bloc, and the justice most closely associated with
them in the previous three or four terms, registered major decreases in

pp. 183-85.
The per cent of dispositions with full opinion which were unanimous rose from 22 in
1952-53 to 28 in 1953-54.
Figures include dissenting votes in cases decided with opinion and by memorandum
order. Dissents noted by various justices in orders denying certiorari and other miscel-
laneous applications are not included.

numbers of dissenting votes. Jackson, whose voting behavior had placed
him between Frankfurter and the conservatives, also recorded fewer dis-
agreements, but here the decline was less marked. On the other hand, the
number of dissenting votes cast by each justice of the conservative wing
either remained the same or increased slightly. Warren dissented fewer
times than his predecessor had done during the previous year. Although
Black and Douglas continued in their familiar roles as the Court’s principal
dissenters, the decline in the number of their dissenting votes and the
slight increase in the number of dissents cast by the conservatives suggests
that the liberal position had gained strength and that conservative influence
was receding slightly.
Reference to majority opinions, concurrences, and dissents in major
cases and to some of the voting relationships among the justices in such
cases indicates, however, that liberal gains were minimal during the first
term of the Warren Court. The major reason for the decline in the number
of dissenting votes may rather have been the Court’s refusal to hear and
decide, through exercise of its discretionary power to deny certiorari, cases
involving the very issues concerning which division was most probable.
The Court granted 13 per cent of the total number of petitions for certiorari
on the appellate docket and less than 2 per cent of those on the miscel-
laneous docket - each figure representing a decrease from the previous
As a result, the total number of judgments fell sharply, and the
number of cases decided with full opinion dropped from 110 in 1952 to
only 78 in the following term. Accompanying these decreases was a sig-
nificant increase in the number of Black-Douglas notations expressing dis-
agreement with Court orders denying certiorari.9 This suggests strongly
that the two liberals had not obtained, during Warren’s first year as Chief
Justice, the support of the additional two justices which was required under
Court rules to grant the writ and order argument. Whether or not the
Chief Justice had supported them is a matter of conjecture. In none of the
orders denying certiorari did he indicate disagreement, but he may have
been pursuing the practice, frequently advocated and consistently followed
by Justice Frankfurter, of not recording disagreement in denial orders of
this kind
In 1952-53 slightly more than 16 per cent of petitions for certiorari on the appellate docket
and 2.5 per cent of those on the miscellaneous docket were granted.
During the 1952 term Justices Black and Douglas each cast 21 dissenting votes in orders
denying certiorari. In 14 of these orders they were together in dissent and in two others
they were joined by Justice Reed. Douglas dissented in 26 orders denying the writ and
Black in 25 such orders during the 1953 term. They dissented together in 21 of these.
See the memorandum of Justice Frankfurter in Chemical Bank
Trust Co. v. Group
of Institutional Investors, 343 U.S. 982 (1952). It is probable that the Chief Justice
has followed the Frankfurter practice, for he has not indicated dissent in any order
denying the writ during his three years on the bench.

Analysis of decisions and opinions in cases involving federal and state
criminal matters, the status of non-citizens, and loyalty-security issues,
underscores the continued minority role of Justices Black and Douglas dur-
ing the 1953 term. Neither Chief Justice Warren nor any of his colleagues
revealed any pronounced tendency to associate with the liberal bloc in cases
raising such issues. The decisions of the Court in theses cases were largely
overshadowed by the opinions in Brown v. Board of Educdtion and Bolling
v. Sharpell -
opinions which stirred more professional and public interest
than perhaps any others in the last fifty years or more. But these opinions,
in which the Court announced the principle that public school segregation
on the basis of race violates the Fourteenth and Fifth Amendments, were
unanimous; and they merely brought to a climax a trend already begun
during Vinson’s Chief Justiceship or even earlier. 1-2 It is extremely doubtful,
despite partisan claims to the contrary, that the Warren appointment
affected the outcome in any very important respect, although it was the
Chief Justice who spoke for the Court in both cases.
Ten cases involving questions of federal criminal law and...

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