Copt_
Tf -100
1940] Appress or ArTHUR W., MacHEeNn
EVENING SESSION, June 27, 1940
Tue Preswwent: The meeting will come to order. Will some
gentleman be kind enough to distribute one of these Tables A
and B on each seat?
Tue Presr : Ladies and gentlemen and members of the
Maryland State Bar Association:
Some years ago I attended a meeting
review and one of the speakers—it was a banquet, I believe—one
of the speakers said the mistake that this particular journal had
made was in avoiding illustrations, He said that it would be so
very interesting, for instance, to have a Picture of a chose in
action. With that idea in mind, I have thought that while I could
not be provided with lantern slides might, at least, do the next
best thing, and distribute these tables among you, which will, I
hope, illustrate somewhat the remarks which I am about to make.
of the editors of a law
ADDRESS OF ARTHUR Ww. MACHEN
President of the Maryland State Bar Association
DISSENT AND STARE DECISIS IN THE
SUPREME COURT
If it be true that “the Proper study of mankind is man,”
equally true that the proper study of Ar
Supreme Court of the United States ;
all times to study the history and te:
Court, yet ought we “most chiefly so to do”
revolution like the present, when in that h
“Chaos umpire sits,
And by decision more embroils the fray
By which he reigns.”
The present discontents seem to_have had their origin in the
practice of dissent in the Supreme Court. Now, dissent, as such,
is not to be condemned, but rather applauded ; but reiterated dis-
sent_may tend to undermine the authority of the Court, and to
produce the present state of “confusion worse confounded.” At
any rate, I have thought that perhaps a study of dissent in the
Supreme Court from the beginning might be not uninteresting to
you, as leading up to the development of definite parties in the
Court, which were the precursors of the present troubles, and toa
consideration of the principle of stare decisis in the Supreme
Court.
se ewe
80 MaryLanp State Bar AssoctATION [1940
With this end in view, I prepared tables of each volume of the
reports of the Supreme Court, noting the total number of cases
reported and the dissents and special concurrences of each justice.
By “special concurrence,” I mean either the filing, or uniting in,
an opinion concurring in the judgment but differing from the
reasoning of the majority, or a simple notation that the justice or
justices in question “concur in the result.”
If such a ti has ever heretofore been undertaken on this
comprehensive plan, I am unaware of the fact; and while statistics
are proverbially dull, yet the resulting figures are, to me, at least,
interesting, and will, I hope, prove in some respects illuminating
to you.
The work was very tedious, involving the examination of 300
volumes of reports, almost page by page, and the tabulation of
many thousands of decisions. No claim is made for absolute
accuracy in the results. In the first place, errors in count have
doubtless occurred. In the second place, my arithmetic is far
from infallible, except when it could be checked by an adding
machine. But there are other serious possibilities of error.
Firstly, it is often a question whether to count two or more cases
involving the same point as one or several. In the main, I have
followed the reports; if reported separately, I have counted them
separately ; but if reported together, I have counted them as one.
To this rule, I have made some exceptions where it is obvious
at a glance that a case, though reported separately, involves
nothing but the same point decided in a companion case. Sec-
ondly, a more serious possibility of error exists where there is a
change in the personnel of the Court. It is often difficult, from
the manner in which the reports are prepared, to determine, with-
out nice labor, for which time was not available, in precisely
which cases an outgoing or incoming justice participated; and
therefore a certain approximation was necessary.
But, after all, these possibilities of error probably, at least to a
large extent, cancel themselves out; and the results of the tabula-
tion are sufficiently accurate for practical purposes, and justify
the inferences deduced from them.
Table A, herewith submitted, relates to the dissents or special
concurrences by Chief Justices. This shows that Marshall dis-
sented or concurred specially in only one in every 112 reported
cases in which he participated, while Chase, at the other end of
the scale, dissented or concurred specially in one out of every 25
cases in which he participated.
1940] Appress oF ArtHUR W. MACHEN 8t
This striking testimony to the dominant personality of Chief
Justice Marshall is diminished but not obliterated by other con-
derations.
I start the compilation with Ist. Cranch, where Marshall came
in, ignoring the embryonic condition of the Court in Dallas under
ay, Rutledge and Ellsworth. Few decisions of any moment are
reported in Dallas, where statistics would be worthless. But
when Marshall took charge, the Court became virtually a one-
man court. In Ist. Cranch every opinion of the Court was deliv-
ered by Marshall save one, in which Marshall had sat below and
graciously permitted Mr. Justice Paterson to affirm him. The
same thing was true in a somewhat lesser degree of the succeeding
early reports. Even in 7 Cranch, where the rudiments of the
present system of assigning different justices to write the opinion
of the Court are observable, Marshall delivered 38 opinions,
Washington and Story 8 each, Johnson 7, Livingston 6, Duvall 2,
and Todd 1, so that Marshall’s opinions (38) outnumbered those
of all the other justices combined (32). Moreover, many of
Marshall’s early “opinions” related to mere interlocutory matters
of practice. If allowance were made for these considerations,
doubtless Marshall’s percentage of dissent would be higher.
Marshall (with the qualifications above mentioned) dissented,
or concurred specially, in one out of each 112 reported decisions ;
Taney in one out of each 37; Chase in one out of each 25; Waite
in one out of each 57—a low ratio; Fuller in one out of each 32;
White (as Chief Justice) in one out of 44; Taft, kindly, good-
tempered, old gentleman, in only one out of 78—second only to
Marshall, but for very different reasons; and finally Hughes—
the present chief, in one out of 56.
Two associate justices have subsequently become chief justices
—White and Hughes; and it is an interesting study to compare
their record of dissents while associates with their record of dis
sents after being elevated to the chief-justiceship. The compari.
son may tend to indicate the effect of the prestige of the chief
upon h ociates. (See Table B. herewith submitted as to
“Dissents and Special Concurrences of Some Associate Justices
of the Supreme Court of the United States”.) White, as asso-
ciate justice, dissented or concurred specially in one out of every
i but as chief justice, he dissented or concurred specially
in only one out of every 57 cases. This is surely an amazing dis-
crepancy, and would tend to indicate that the prestige of the chief-
justiceship has tremendous influence. But a more detailed an-
alysis of the record throws some doubt on this conclusion. In the
82 MaryLanp Strate Bar AssocraTION [1940
first part of White's career as Associate, from 152 to 202 U. S.,
inclusive, he dissented or concurred specially in one out of every
13 cases participated in—a very high record of dissent. In the
latter part of his service as Associate, from 203 to 218 U. S., in-
clusive, he dissented or concurred specially in only one out of
every 31 cases participated in. This progression’ shows, even
prior to his promotion to the chief-justiceship, either (1) a grow-
ing disinclination on his part to voice a dissent, or (2) a force of
personality and reasoning which made his colleagues more and
more disinclined to disagree with him. Consequently, it seems
that White’s disinclination to dissent, or his influence over his
colleagues, was growing while he continued as associate, and that
the process merely continued upon his becoming chief justice.
Similarly, Hughes, as chief justice, from 281 to 308 U. S.,
dissented or concurred specially, in one out of every 56 cases,
whereas as associate he dissented, or concurred specially, in one
out of every 41 cases. This also is certainly not wholly due to
the prestige and influence of the position of chief; for without
imputing to the present Chief Justice the most glaring incon-
sistency, it is impossible to believe that he is more in mpathy
with the majority of the Court today than he was while Associate.
Indeed from 301 to 308 U. S., the present Chief Justice has
sat in 402 reported cases, and has dissented in only 4, and con-
curred specially in 3. In other words, he has dissented in less
than one case in a hundred. Yet it is in these eight volumes
that the wild decisions occur which have so shocked the pro-
fession—decisions overruling dozens, nay, hundreds, of cases,
in many of which the Chief Justice had concurred, and perhaps
some in which he had actually delivered the opinion of the Court.
The Chief Justice cannot possibly really and whole-heartedly
have concurred in these startling decisions; and yet he has noted
no dissent. A striking fact is that although he gives no indica-
tion of dissent, yet he never delivers the opinion in any of the
wild decisions. ‘The natural inference is that the Chief Justice,
while not sympathizing with the majority of his Court when they
demolish the structure which Marshall founded, and Taney, and
his successors down to Taft, continued, yet feels that the best
thing to do is to bow to the storm and—I change the metaphor—
not to fan the fire by opposition.
The supporting charts I have prepared strongly confirm, what
we all realize to have been the fortunate fact, that party politics
has never played an important part in the divisions of the Su-
preme Court, with the possible exception of a few cases leading
1940] Appress oF ArTHUR W. MACHEN 83
up to, during, and immediately following the Civil War. Even
then, the political division was in only a few of the cases in
which the Court was divided; in the great majority, the division
was entirely on non-political lines. Even today, the same thing
is true. The Court contains no more consistent follower of the
desires of the present so-called Democratic administration than
Mr, Justice Stone, who was appointed as a Republican by Pres
dent Coolidge in 1924. The Chief Justice, especially since 300
U. S., is almost a close second; and yet he actually resigned as
Associate Justice to become the Republican candidate for presi
dent. On the other hand, the only remaining outspoken op-
ponent of these views is a Democrat, a former Democratic Attor-
ney-General under President Wilson, the Grand Old Man whom
we all delight to honor, Mr. Justice McReynolds,—“among the
faithless, faithful only he” to the principles of the common law
and the doctrine of Stare decisis.
Not only is this true, but also, at least until the advent of Mr.
Justice Brandeis, there had never been any definite parties in the
Supreme Court, even on legal rather than political lines. Of
course, for a time Justice Miller led one group, and Justice Field
another who frequently differed from each other on certain lim-
ited classes of ca: The same thing has been true as to other
justices at other times as to other limited classes of cases. But
how far these conditions were from the partisan—legalistically
partisan—division of the Court since about 1924, a glance at my
supporting charts is sufficient to demonstrate.
For instance, although Miller and Field were the leaders of
opposing factions, during their period of joint service from ‘1
Wallace to 136 U. S.—the one a radical Republican, the other a
Democrat—yet of the 588 reported cases in which the Court was
divided and in which both participated, they were on the same
side in 348 cases, or 59%, and on differing sides in only 240
cases, or 41%.
This is very different from the rigid combination of Holmes,
Brandeis, and Stone, and the equally rigid combination of
Brandeis, Stone and Cardozo, with which we have been so fa-
miliar in recent years.
One reason, of course, is that in the days of Field and Miller,
the Supreme Court exercised a wide general jurisdiction over
matters of common law and general equity having no relation to
constitutional points as to which Field and Miller differed. On
the other hand, at the present time the jurisdiction of the Court
84 Maryann State Bar AssoctaTIoNn [1940 °
has been so circumscribed that these questions of general law
rarely come before it. As a matter of right, no litigant can bring
any such questions before the Court. In other words, the Su-
preme Court has become a specialized Court, with all the nar-
rowness which experience has proved is almost inseparable there-
from. This is not the fault of the Court, but of the law; al-
though perhaps no way could have been devised to relieve the
congestion of the Court’s docket without making it a specialized
court.
The origin of the present troubles is commonly attributed to
Mr. Justice Holmes, who is usually supposed to have been a
most prolific dissenter. But an examination of the record does
not bear this out. When Holmes was appointed by Roosevelt
the First in 1902, certainly no one thought of him as a radical, or
a dangerous revolutionist. Of pure Anglo-American stock, a
representative of all that was conservative in America, he came
to the Supreme Court with a record of devotion to the common
law, and to the principle of stare decisis on which the common
law is predicated. His book, “The Common Law”, teems with
references to the Year Books; and when I was a law student at
Harvard and he was a member of the Supreme Court of Massa-
chusetts, it was common gossip among the students that Boston
lawyers in order to propitiate him found it necessary to lard their
briefs with citations from the Year Books. Doubtless, this
gossip was entirely baseless; but the fact remains that he was
steeped in American tradition, and born and bred in the common
law of England, and in the doctrine of stare decisis, which is the
very heart, blood and bone of that law; and his record in the
Supreme Court does not belie his heritage.
Even throughout his career on the Supreme Court, he was not
a notable dissenter. This is made very clear by contrasting his
record with, for example, that of Mr. Justice Harlan. Holmes
dissented singly in only one out of every 477 cases, as against
Harlan’s one out of every 59; he dissented alone or in company
with others in one out of every 36, as against Harlan’s one out
of every 18, and either dissented or concurred specially in one out
of every 28 cases, as against Harlan’s one out of every 15.
Brewer dissented in one out of every 20 cases, and McKenna in
one out of 24.
But Holmes’ career cannot justly be appraised so generally.
From the time when he went on the bench in 187 U. S., until
the advent of Justice Brandeis in 242 U. S., Holmes dissented
in only 58 out of 3005 cases, and dissented or concurred specially
1940] 85
Appress oF ArtHur W. MacHEN
in only 76. In other words he dissented in one out of every 52
cases, and either dissented or concurred specially in one out of 40.
This was a rather low average of dissent.
When Brandeis came on, a very different tale began to unfold.
Holmes dissented once in every 28 cases, as against once in 52
hefore Brandeis, and dissented or concurred specially once in
every 21 cases, as against once in 40 before Brandeis.
Even this does not tell the whole story. Brandeis was a much
younger man than Holmes, and might even be reckoned as a
disciple. It would naturally be supposed that the younger would
at first attach himself to the elder, and that progressively dif-
ferences might possibly develop between them. But the statis-
tics prove that exactly the reverse was the case; for in the first
part of their joint service, Holmes and Brandeis differed from
each other much more than in the latter part. From 242 Ss
to 266 U. S., Holmes and Brandeis were on the same side in 230
out of 319 cases in which there was a division in the Court, and
on different sides in 89. In other words, Holmes and Brandeis
were on differing sides in 28 per cent. of the cases in which
there was a division in the Court. On the other hand, after Stone
came on in 272 U. S., Brandeis and Holmes differed from each
other in only 15 per cent. of the cases in which there was a divi-
sion in the Court
This demonstrates that so far from Brandeis following Holmes,
Holmes tended progressively to follow and defer to Brandeis.
Holmes, of course, was, as already stated, an American of
the Americans. yBut Brandeis, although a native horn American,
seems to me never to have thoroughly comprehended the Ameri-
can Federal form of constitutional government. It is all the more
a_tribute to the force of his intellect, and of his personality, that
he so strongly influenced, or, as some would say, perverted
\ Holmes, ”
But the influence of Brandeis over Holmes was greatly acceler-
ated by the appointment of Mr. Justice Stone by President
Coolidge in 1924. Of all men who have been responsible for the 9
destruction of the American system _of constitutional law, as
founded by Marshall and continued by Taney, Mr. Justice Stone
seems to me the least easy to explain. He had, indeed, been a law
school professor, and law school professors are perhaps the worst
possible material for judges; but he had also been a member of
a large law firm, though not, I imagine, engaged in trial practice,
which undoubtedly is the best training for judges. Even, how-
acme EB aeling
86 MaryLanp STATE Bar ASSOCIATION [1940
ever, when all allowances are made, it is impossi
understand his judicial career.
le for me to
After Stone came on, in 272 U. S., he with Holmes and
Brandeis united in opinion in 101 out of the 144 cases in which
down to 284 U. S., when Holmes resigned, the Court was divided.
Here at last we have a definite partisan division in the Court—
although fortunately not on strict political lines.
Notwithstanding thé growing influence of Brandeis over
Holmes, it may well be doubted whether Holmes, if he had lived
and, in the full possession of his great intellect, had remained _
on the bench, would have concurred in the crimes against juris-
prudence which, since his retirement and death, have been per-
petrated in his name. It is significant that in the next to thé
last volume of reports in which Holmes participated, a dec
is found in which he concurred on the authority of a previous
decision (from which he had dissented), while Brandeis and Stone
dissented in the Tater case, instead of acquiescing like Holmes in
the authority of the former decision (Indian Motorcycle Co, y
United States, 283 U. S. 570, 579).
When Holme: igned, he was succeeded by Cardozo, a most
unfortunate appointment by President Hoover. He aligned him-
self at once with Brandeis and Stone, and the partisan division
in the Court became more marked than ever. Cordozo partici-
pated with Brandeis and Stone in 189 cases reported from 285
U.S. to 302 U. S., in which there was a division in the Court.
Cardozo, Stone and Brandeis were on the same side in 130, or
69 per cent., and Cardozo and Stone (without Brandeis) in 29,
while Bri is and Cardozo (without Stone) were on the same
side in 17 cases in which the Court was divided, and Stone and
Cardozo (without Brandeis) in 13. Cardozo and Stone were on
the same side in 84 per cent. of the cases in which the Court was
divided. Partisanship in a court could scarcely rise higher
Contrast this record of. parties in the Supreme Court with the
record during the days of Miller and Field. Brandeis, Stone and
Cardozo were on the same side in 69 per cent. of the cases in
which there was a division in the Court. In the same cases,
Stone and Cardozo were on the same side in 84 per cent., whereas
Miller and Field, who are generally regarded as leaders of oppo-
site parties in their day, were on the same side in 59 per cent. of
the cases in which the Court was divided. What a contrast!
The question may be asked, however, whether the blame for
this partisan division in the Court does not rest equally upon the
87
Appress oF ArTHUR W. MAcHEN
1940]
Certainly, it must be conceded that the
blame does not rest exclusively upon the so-called liberals. The
conservatives in the days of their power sometimes showed a
disregard of precedent which resembles in kind (although vastly
less in degree) that displayed by the present majority.
so-called conservatives.
For example, I happened to be in the Supreme Court when
Justice McReynolds read the opinion of the Court in Farmers’
Loan & Trust Co. vs. Minnesota, 280 U. S. 204, overruling
Blackstone vs Miller, 188 U. S. 189, which had held that a State
may levy inheritance taxes, or the like, on debts owing by its
residents to non-residents, even though the State of the residence
of the owner may also levy similar taxes thereon. a lawyer,
I was shocked beyond measure by this violation of the rule of
stare decisis, even though as a citizen I was gratified by the result.
Consequently, I cannot criticize the New Court for reinstating
Blackstone vs. Miller. The conservatives were merely compelled
to take a dose of their own medicine
But the conservatives, while not free from fault, are surely
not equally blamable with the radicals for the partisan divi
the Cour
ion in
For instance, McReynolds and Butler were both
Yet during their joint service, they were on
different sides in 166 out of 545 cases in which a division in the
Court existed, or 22 per cent., whereas Stone and Cardozo during
their joint service were on differing sides in only 16 per cent. of
the cases in which the Court was divided. Down to the virtual
reorganization of the Court in 301 U. S., McReynolds and Butler
differed from one another in as much as 144 out of 411 cases in
which a division in the Court occurred—or in other words 35 per
cent. Of course, after war was declared by the majority against
the established system of Anglo-American law in 301 TS. there
was nothing for Justices McReynolds and Butler to do but close
e ranks, and join battle, so that the fairer me:
non-partisanship, as contrasted, for example. with Stone and
Cardozo, is to take the statistics prior to 301 U. S.
Now, let us pass to a brief consideration of stare decisis in the
Supreme Court, and the influence of dissent upon its impair-
ment, which has turned things topsy-turvy in recent years,
When the people of the United States ordained and established
the Constitution, and thereby provided for creation of a Supreme
Court and such inferior courts as Congress might erect, they
must have intended, imbued as they were with the principles of
the Common Law of England, that these courts should be gov-
ure of their
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88 Maryianp State Bar AssocraTIoN [-1940
erned by the fundamental rules governing courts in England,
chief among which was the doctrine of stare decisis. At that
time, the doctrine that the House of Lords has no power to over-
Tule its own decisions had not been established; but reverence
for precedent was firmly imbedded in English law, and was recog-
nized in all the Colonies.
Naturally and simply, without _any dissent_or criticism, the
Supreme Court, almost immediately, recognized the controlling
effect of even a single decision—at least in the absence of very
extraordinary circumstances.
" In Abercrombie vs. Depuis, 1 Cranch 343, the report states :
“The court said that the question had been decided
after full argument, in the case of Bingham vs. Cabot,
3 Dall. 383, and they did not think proper to overrule
that case.
“The Chief Justice said, he did not know how his
opinion might be if the question were a new one.”
In the next volume, the Supreme Court again unanimously
asserted the persuasive force of precedent in United States vs.
Schooner Sally, 2 Cranch 405:
“The error assigned was, that the cause was of com-
mon law, and not of admiralty and maritime jurisdiction.
“But the court, upon the authority of the case of the
United States vs. La Vengeance, 3 Dallas 297, without
argument, affirmed the decree.”
In the next volume, in Ex Parte Burford, 3 Cranch 448, 449,
Chief Justice Marshall, speaking for a unanimous Court, held a
former decision to be deci ying:
“There is some obscurity in the act of congress, and
some doubts were entertained by the court as to the con-
struction of the constitution. “The Court, however, in
favour of liberty, was willing to grant the habeas cor-
pus. But the case of The United States vs. Hamilton,
3 Dall, 17, is decisive. It was there determined that
this court could grant a habeas corpus; therefore, let the
writ issue, returnable immediately, together with a certi-
orari, as prayed.”
Chief Justice Marshall’s remarks in Hudson vs. Guestier, 6
Cranch 281, 285, might lead a casual reader to suppose that it
1940] ApprEss oF ArTHUR W. MACHEN 89
overruledyHimely vs. Rose, 5 Cranch 313, and was thus the first
case in which the Supreme Court overruled one of its prior de-
cisions. The Report states:
“Marshall, Ch. J., observed, that he had supposed that
the former opinion delivered in these cases upon this
point had been concurred in by four judges. But in this
he was mistaken.
“The opinion was concurred in by one judge.
“He was still of opinion that the construction then
given was correct * * *. However, the principle of
that case (Himely vs. Rose) is now overruled.’
Examination of Himely vs. Rose, 5 Cranch 313, shows that
Marshall’s opinion in that case was concurred in by only one
justice, Chase, that two dissented, and two concurred in the judg-
ment on a different ground from that set forth in the opinion of
the Chief Justice. When, therefore, Marshall said that “the prin-
ciple” of Himely vs. Rose is now overruled,” the fact was that the
Opinion of the Chief Justice, concurred in by Chase, was disre-
garded,
An interesting early discussion as to the effect of stare decisis
took place in United States vs. Cooledge, 1 Wheat. 415, 416.
There the Attorney-General declined to argue a certain question
on the ground that it had been decided by the Supreme Court
against the Government “whether with or without argument”.
Thereupon the following colloquy occurred :
“Story, J.: Ido not take the question to be settled by
that case.
Johnson, J.: I consider it to be settled by the
authority of that case.
Washington, J.: Whenever counsel can be found
ready to argue it, I shall devest myself of all prejudice
arising from that case.
Livingston, J.: I am disposed to hear an argument
on the point.”
In spite of this invitation, no counsel appeared to argue the
point on either side; and Mr. Justice Johnson, delivering the
opinion of the court, said that although the court was divided
in opinion, and prepared to hear argument, yet “Under these cir-
cumstances the Court would not choose to review their former
decision or draw it into doubt”.
oo
Brrr ne
90 MaryLanp State Bar Association £1940
The first case in which the Supreme Court can possibly be
said to have overruled a prior decision is Gordon vs. Ogden, 3
Pet. 33, decided in 1830; but although in Hilton vs Dickinson;
108 U. S. 165, 174, the Supreme Court said, “We understand
that Wilson vs. Daniel, 3 Dall. 401, is overruled by Gordon vs.
Ogden”, yet it may be doubted whether the earlier case was actu-
ally overruled. In Wilson vs. Daniel, the Plaintiff sued for the
penalty of a bond and recovered a judgment for a penalty in
excess of $2,000.00, to be released, however, upon payment of
$1,800.00, The defendant sued out a writ of error. The juris-
diction of the Supreme Court was then limited to cas involving
more than $2,000.00 Chief Justice Ellsworth was of opinion
that the question must be determined by the amount involved
in the suit at the outset, rather than by the amount of the judg-
ment, and therefore held that the Supreme Court had jurisdicti
Chase, Paterson and Cushing concurred in upholding the jurisdic-
tion of the Supreme Court, but on the ground that the amount
involved was the amount of the judgment, namely, the penalt:
rather than the amount of the damages, on payment of which the
judgment was to be released.
The later case of Gordon ys. Ogden, which is supposed to have
overruled Wilson vs. Daniel, was a suit for damages for infringe-
ment of a patent, and did not at all relate to a judgment for the
penalty of a bond to be released on the payment of a sum less
than $2,000.00. However, Chief Justice Marshall, in delivering
the opinion, recognized that Wilson vs. Daniel would be con.
trolling by way of stare decisis if a contrary practice had not
subsequently grown up. He said:
“The counsel for the plaintiff in error relies on the
case of Wilson vs. Daniel, 3 Dall. 401.- That case, it
is admitted, is in point. It turns on the principle that
the jurisdiction of this court depends on the sum which
was in dispute before the judgment was rendered in the
circut court. Although that c: was decided by a
divided court, and although we think, upon the true con-
struction of the twenty-second section of the judicial
» the jurisdiction of the court depends upon the sum
in dispute between the parties as the c: stands upon
the writ of error, we should be much inclined to adhere
to the decision in Wilson vs. Daniel, had not a contrary
practice since prevailed.”
The next case—really the first case—overruling a prior
cision is Louisville Railroad Co Letson, 2 How.
1940] Appress or ArtHuUR W. MACHEN 91
held that diversity of citizenship exists in a suit by a citizen of
one State against a corporation incorporated under the laws of
another State, even though some of the stockholders are citizens
of the same State as the Plaintiff. This decision, which was
More important, however, is the next case in which the Su-
preme Court overruled a prior decision—The Genesee Chief vs.
Fitzhugh, 12 How. 443. ‘There, the opinion being delivered by
Taney, the Court overruled The Thomas Jefferson, 10 Wheat.
424, in which the opinion of the Court had been delivered by
Story and concurred in by Marshall and the other justices.
Taney, overruling Marshall and Story, held that admiralty juris-
diction extends to the Great Lakes and navigable rivers of the
West, and is not confined to waters within the ebb and How 6:
the tide. Incidentally, this is the only instance in which Taney
overruled a decision of Marshall’s; and it is significant that in
doing so he extended, rather than restricted, Federal jurisdiction.
How scrupulously he regarded, great Iawyer that he was, the
doctrine of stare decisis, and how cautious and apologetic he was
in overruling a prior decision, appears from the following pas-
sage in his opinion:
“The case of the Thomas Jefferson did not decide any
question of property, or lay down any rule by which the
right of property should be determined. If it had, we
should have felt ourselves bound to follow it notwith-
standing the opinion we have expressed. For every one
would suppose that after the decision of this court, in
a matter of that kind, he might safely enter into con-
tracts, upon the faith that rights thus acquired would not
be disturbed. In such a case, stare decisis is the safe
and established rule of judicial policy, and should always
be adhered to. For if the law, as pronounced by the
court onght not to stand, it is in the power of the legis-
lature _to_amend it, without impairing rights acquired
under it.” (12 How. 458.) ig
Justice Daniel vigorously dissented from the extension of ad-
miralty jurisdiction, and thereafter seems to have persi
isted in
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Marytanp State Bar Association [1940
dissenting in any admiralty case relating to the Great Lakes or
to navigable rivers above the ebb and flow of the tide-—Sce Frets
vs. Bull, 12 How. 466; Propeller vs, Mollison, 17 How. 153, 156.
Other and greater judges did not follow this example, but after
j 2 Point had_once heen decided against their_apinion, concurred
u_all future decisions involving the same point. First National
) Bank vs. Converse, 200 U. S. 425, 440, and First National Bank
vs. Kennedy, 167 U. S. 362, 371 (Harlan); United States vs.
‘Clark, 200 U. S. 601, 609, and United States vs. Detroit Timber
& Lumber Co., 200 U. S. 321, 340 (McKenna) ; West Chicago
R. R. Co. vs. Chicago, 201 U. S. 506, 526, and Chicago B. & Q.
R. R. Co. vs, Drainage Commissioners, 200 U. S. 42, 49 (Mc-
Kenna and Hughes) ; Beidler vs, Tax Commission, 282 U. S.
1, 10 (Holmes and Brandeis),
Some of the justices have even carried this laudable practice
es_involving the same point were
so_far that when several
argued together or suc: vely, they have dissented in the first
isis in the subse-
case_but concurred on the ground of stare dec
vs. Chicago,
quent decisions. Interstate Commerce Commission
B. &Q.R. R. Co., 218 U. S. 113 (White, Holmes and Lurton) ;
Diamond vs. Shine, 199 U. S. 88 (White and McKenna).
In‘ one case White dissented because the majority refused to
follow a decision from which he himself had dissented and which
he, unlike the majority of the court, thought could not be dis-
tinguished. Jaquith vs. Alden, 199 U. S. 78, 83, and Pirie vs.
Chicago Title Co., 182 U. S. 438, 456 (White).
In this connection, I may mention that I heard the arguments
in Flint vs. Stone Tracy Co., 220 U. S. 107, involving the con-
stitutionality of the Corporation Tax Law of 1909. A learned
counsel, whose name I forget, arguing that the tax was invalid as
to income from State and municipal bonds, mentioned that in
Pollack vs. Farmers’ Loan & Trust Co., 158 U. S. 69, the Court
was unanimous in holding that the income tax of 1893 was in.
valid as to income from State and municipal secur:
White, who had been one of the four dissenting j
Pollack Case as to the constitutionality of the Act as to income
in general, turned to the learned barrister with that sharp, in-
cisive tone of his, saying, “Mr, So-and-so, it makes no difference
whether the Court was unanimous or not: the decision is equally
binding”.
There spoke a lawyer.
1940]
93
Appress oF ArTHUR W. MACHEN
Even Mr. Justice Stone recognized, as late as 1927, the binding _
effect of precedent in Bedford Co. vs. Stonecutters’ Association,
"274 U.S. 37, 55-6:
“As an original proposition, I should have doubted
whether the Sherman Act prohibited a labor union from
peaceably refusing to work upon material produced by
non-union labor or by a rival union, even though inter-
state commerce were affected * * * but in Duplex
Printing Co. vs. Deering, 254 U. S. 443, these views
were rejected by a majority of the court * * * for that
reason alone I concur with the majority.”
Holmes, in United States vs. Lehigh Valley R. R. Co., 254
U. S. 255, 271, was even more emphatic as to the “controlling
effect” of a previous decision. The report states:
“The Chief Justice and Mr. Justice Holmes, while
if they exercised an independent judgment would be for
affirmance, nevertheless concur_in the decision just an-
nounced by the court because they consider that they are
so_constrained to do in virtue of the controlling effect
of the previous decisions in the Lackawanna and Read-
ing Cases cited in the opinion of the court.”
Yet Holmes had dissented in the prior case.
When the modern evangelists of topsy-turveydom seek to jus-
tify their disregard of precedent, they always cite T'aney’s dic-
tum in a dissenting opinion in the Passenger Cases, 7 How. 470.
Taney thought that in the License Cases, 5 How. 504, he had
established the rule that the power of the States over interstate
commerce was absolute in_all cases, subject only to the over-
riding power of Congress, He was greatly chagrined when the
Court in the Passenger Cases refused to follow this rule to its
logical conclusion; and he uttered the following classical and
somewhat petulant remark :
“After such opinions, judicially delivered, I had sup-
posed that question to be settled, so far as any question
upon the construction of the Constitution ought to be
regarded as closed by the decision of this court. I do
not, however, object to the revision of it, and am quite
willing that it be regarded hereafter as the law of this
court, that its opinion upon the construction of the Con-
stitution is always open to discussion when it is supposed
to have been founded in error, and that its judicial
MaryLanp STATE Bar AssocIATION [1940
authority should hereafter depend altogether on the
force of the reasoning by which it is supported.” (7
How. 470.)
This irritable dictum surely should not be allowed to counter-
balance ‘Taney’s life-long devotion to the common law, and to
the doctrine of stare decisis which is its life-blood. No doubt,
he was no more in sympathy with Marshall’s Federalistic de-
cisions than the present majority are in sympathy with the thou-
sands of cases they have overruled. Yet, Taney, unlike some
of his successors, was first of all a lawyer and not a theorist, and
the only decision of Marshall’s which he overruled was, as alread
stated, a decision unduly limiting the scope of Federal admiralty
jurisdiction,
Of course, between 12 How. in 1852, when Genesee Chief vs
Fitzhugh, overruled The Thomas Jefferson, and 301 U. S., the
Supreme Court overruled a considerable number of cases, mostly
cases on constitutional law. Without accepting Taney’s incon-
siderate dictum above quoted, or the extreme views of the
majority of the present Court, it may be conceded that decisions
on constitutional questions may properly be reconsidered and over-
ruled somewhat more readily than decisions on statutory con-
struction, or on common law or general equi for the conse-
quences of error are more serious, and the process of correction
much more difficult. I have made no effort to count the cases
overruled between 12 How. in 1852 and 301 U. S. in 1937, but it
is obvious that they were an insignificant fraction of those over-
ruled in the few years since 300 U. S.
Most of the comparatively few cases overruled in the period
between 12 How. and 301 U. S. were border-line cases where the
court had see-sawed for years, or cases whose authority was chal-
lenged almost immediately, such as Hepburn vs. Griswold, 8 Wall.
603, decided in 1869, and overruled the next year by The Legal
Tender C 12 Wall. 457. This overruling decision was
sharply criticized both at the time and for many years afterwards,
not only for the manner in which the majority had been obtained,
but also for its disregard of the principle of stare decisis. See
for example Article by D. H. Chamberlain in 3 Harv. L. Rev. 125.
In my early legal youth, less than two years after leaving law
school, I myself wrote a law review article entitled “The Elasticity
of the Constitution” (14 Harv. L. Rev. 200)—an article which
would not be mentioned but for the fact that it has been cited
both by Justice Brandeis in a footnote to a dissenting opinion, and
95:
1940] Appress oF ArTHUR W. MACHEN
by Charles Warren in his “Supreme Court in U. S. History”, as
if it-supported the view that stare decisis is inapplicable to con-
stitutional questions. My fundamental thesis was, indeed, that
the intention of the framers of the Constitution must always con-
trol, in spite of changed conditions or altered meaning of words;
but, legal child that I was, the article at the outset laid down the
following qualification :
Of course, we should eliminate from the discussion
any departures from principle and from the intention of
the constitution-makers which have become established
by repeated decision. One of the chief characteristics
of the common law, in reference to which our organic
law was composed (Smith vs. Alabama, 124 U. S. 465,
478), is its respect for judicial precedent. Accordingly
any flagrant departure from the principle of stare decisis,
even in order to correct an error, would do greater vio-
lence to the intention of 1789 than the mistake it was de-
signed to remedy.” (14 Harv. L. Rev. 202.)
of Brandeis
Certainly this gave no countenance to the view
et al. as to the non-applicability of stare decisis to constitu-
tional cases; and after the lapse of 38 years, I am not only, like
Pendennis when he used to read his old essays, astounded at my
own erudition, but also tempted to ejaculate, “O Lord, out of the
mouths of babes and sucklings Thou hast perfected praise”.
What has happened to stare decisis since 300 U. S., you all
know; and at all events, to me_as an adherent of the Anglo-
Americap system of law where “justice slowly broadens down
from precedent to precedent”; and as an admirer of the great
system of constitutional law which had been built up slowly and
painfully on the foundations which Marshall laid, the decisions
since 300 U. S. are too distressing to recapitulate, even if recapitu-
lation were necessary in this audience. The great system of
American Constitutional law has been shattered, and our Anglo-
American heritage of ordered liberty, and of a government of law
and not of men, has been thrown into the junk-heap. To me, the
picture is too sad to paint.
The question remains as to the future. “Quo vadis?” is the
interrogatory we address to the Supreme Court, as now consti-
tuted. Surely some system of constitutional law must ultimately
be rebuilt. What shall it be? Time alone can tell.
In the first place, the New Court has renounced no power ever
erted by Marshall or his successors. To be sure, so far as I
96
Marytanp State Bar Assocration [1940
am aware, the New Court has never held an act of Congress un-
constitutional. But it has never renounced the power so to do.
On the other hand, in Tespect to State legislation, in spite of
the fact that so-called “liberals” had declaimed, and I think rightly
declaimed, against the unwarranted extension of the due process
clause so as to invalidate State legislation in support of their
social views, yet the present Court has extended the Fourteenth
Amendment beyond anything ever dreamed of before. For in-
stance, although the old court had held that the Fourteenth
Amendment did not preclude a State from denying freedom of
speech (Prudential Insurance Co. vs, Cheek, 259 U. S. 530), the
New Court has recently held that a state law prohibiting picketing
on the public streets, in front of an establishment where a strike
is on, is a denial of freedom of speech, and as such invalid under
the Fourteenth Amendment.
The authority, therefore, of the Supreme Court remains un-
diminished or even extended. The New Court has taken to itself
authority which the old court never presumed to assume.
But the question remains, “Quo vadis?”
Frankly, I do not know. Two or three well directed shells
may in as many minutes destroy a cathedral which centuries were
required to build. And the decisions since 300 U. S. have de-
stroyed the whole fabric of constitutional law which Marshall
founded and Taney, and his successors down to Taft, tended and
extended. If we are ever again to have a system of American
Constitutional Law, we must have a second, and an abler, Mar-
shall. It was comparatively easy to construct a system of consti-
tutional law out of nothing, as Marshall did. It will be infinitely
harder to reconstruct a system on the ruins of that founded by
Marshall and continued by Taney, and destroyed by the present
Court. A greater even than Marshall is needed,
The injustice of these recent overruling decisions can be illus-
trated by two examples. In the first place, suppose that a lawyer
has accepted appointment as a Federal judge after a nice calcula-
tion whether he can support his family and comply with other
obligations on the salary. Relying on Evans vs. Gore, 253 U. S.
245, and Miles vs. Graham, 268 U. S. 501, that his salary is ex-
empt from Federal income tax, and of course from State taxes,
he gives up ‘his practice and goes on the bench. Then the Su.
Preme Court overrules prior cases and holds
subject both to Federal and State income taxes.
is hard for me to conceive.
that his salary is
Greater injustice
1940] Avpress or ArtHuR W. MacHEN 97
The same thing would be true of another lawyer who has sur-
rendered his practice and accepted a State judgeship on the faith
that under Collector vs. Day, 11 Wall. 113, his salary is exempt
from Federal tax. But the present majority of the Supreme
Court overrules Collector vs. Day and subjects to Federal income
tax a perhaps scanty salary, barely sufficient to enable him to live.
I wonder whether the present majority of the Court would be
willing to consider the terrible damage they are doing to the
prestige and influence of the once great court of which they are
members.
For example, a group of leaders of the Bar on their way to the
recent on of the American Law Institute discoursed with
each other upon the difficulty now encountered in preparing an
argument for the Supreme Court, because of the inescapable feel-
ing that there is no settled rule from which to start. Another
lawyer, much younger, or at least with much less experience in
the Supreme Court, hearing but not participating in the conversa-
tion, suddenly interjected, “I infer that the Supreme Court now
works in a beautiful building without premises”
As said above, the power of the Court remains unimpaired.
The Court, therefore, will still be feared and flattered; but will
it retain, in the same measure as heretofore, the respect of the
bar? I doubt it. Lawyers will naturally want to gain their cases,
and some of them will feel that one way to accomplish that result
is to fawn upon the justices. But this is very different from the
sincere respect which the Court has heretofore commanded, even
from the lawyers who have thought some of its decisions erron-
eous.
But I for one do not believe that even the present majority of
the Supreme Court would be influenced in favor of a lawyer by
his flattery, or against him by his censure. For example, if I
should be privileged to appear before them next October, and
especially if, in order to decide for me, they could soak somebody,
and overrule some fifty previous cases, they would not, I am con-
vinced, be in the least deterred from doing so by anything I have
here said.
Finally, the Supreme Court of the United States is still our
Supreme Court, and the only hope of the jurisprudence of the
United States. Of course, it is not the only bulwark of liberty or
of the Constitution; on the contrary, Congress, and, above all, the
people, are the ultimate guardians of our liberties and of the Con-
98
Marytanp State Bar Assoctation [1940
stitution. The Supreme Court can hold acts of Congress which
violate the liberties of the people or infringe the rights of the
State to be constitutional or unconstitutional ; but it cannot compel
the passage, or prevent the repeal, of any laws.
But although the Supreme Court is not the ultimate guardian
of our liberties or of the Constitution, it is the ultimate guardian
of our Federal jurisprudence. Much’as we may venture to eriti
cize it, we must always respect its high authority, and venerate
its august position. We may regret the fact that, for the first
time in the history of that great Court, justices who have been
appointed by the Executive to carry out certain policies have con-
sistently done so. We may lament that unlike Story, who was
appointed as a Democratic-Republican to counter-balance the Fed.
eralist Marshall, the present majority have not disappointed their
appointer. We may lament the fact that unlike even Strong and
Bradley, who were appointed for the purpose of rendering a
particular decision, yet, after rendering that decision, became
thereafter as independent as woodsawyers, the present majority
have not as yet shown any signs of similar independence. But,
however much we may deplore the course of the present majority
of the Supreme Court, yet as lawyers we must try to respect
and uphold the Court. This does not mean that we must always
approve its latest decisions, even when in conflict with earlier
decisions. /We are not in the position of judges of lower courts
whose only duty is to follow the latest decision of the Supreme
Court, however contrary it may be to prior cases.y On the con-
trary, our duty of respect to the Supreme Court is due not less—
I should say, even more—to the Court of Marshall, Taney,
White, and Taft, than to the Court as reconstituted in 301 U. 8.
But much as we may be entitled to criticize the present Court
in comparison with its predecessors, we should never forget,
come what may, our allegiance to the Supreme Court as anim.
stitution, and should never give up our determination ta uphold
its authority and enhance, so far as its decisions permit, its pres-
tige and influence.
