# Ferguson v. Lines/Concurrence Burton

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Burton Harlan
* Dissenting Opinion Frankfurter
United States Supreme Court
352 U.S. 521
Ferguson v. Lines
Argued: Dec. 10, 1956. --- Decided: Feb 25, 1957
Mr. Justice BURTON concurs in the result.
Mr. Justice REED would affirm the judgment of the Court of Appeals.
Mr. Justice BLACK took no part in the consideration or decision of this case.
For dissenting opinions of Mr. Justice FRANKFURTER and Mr. Justice HARLAN, see 352 U.S. 518, 77 S.Ct. 459.
Mr. Justice FRANKFURTER, dissenting.
Mr. Justice HARLAN, concurring in No. 46 and dissenting in Nos. 28, 42 and 59.
I am in full agreement with what my Brother FRANKFURTER has written in criticism of the Court's recurring willingness to grant certiorari in casses of this type. For the reasons he has given, I think the Court should not have heard any of these four cases. Nevertheless, the cases having been taken, I have conceived it to be my duty to consider them on their merits, because I cannot reconcile voting to dismiss the writs as 'improvidently granted' with the Court's 'rule of four.' In my opinion due adherence to that rule requires that once certiorari has been granted a case should be disposed of on the premise that it is properly here, in the absence of considerations appearing which were not manifest or fully apprehended at the time certiorari was granted. In these instances I am unable to say that such considerations exist, even though I do think that the arguments on the merits underscored the views of those of us who originally felt that the cases should not be taken because they involved only issues of fact, and presented nothing of sufficient general importance to warrant this substantial expenditure of the Court's time.
I do not think that, in the absence of the considerations mentioned, voting to dismiss a writ after it has been granted can be justified on the basis of an inherent right of dissent. In the case of a petition for certiorari that right, it seems to me-again without the presence of intervening factors-is exhausted once the petition has been granted and the cause set for argument. Otherwise the 'rule of four' surely becomes a meaningless thing in more than one respect. First, notwithstanding the 'rule of four,' five objecting Justices could undo the grant by voting, after the case has been heard, to dismiss the writ as improvidently granted-a course which would hardly be fair to litigants who have expended time, effort, and money on the assumption that their cases would be heard and decided on the merits. While in the nature of things litigants must assume the risk of 'improvidently granted' dismissals because of factors not fully apprehended when the petition for certiorari was under consideration, short of that it seems to me that the Court would stultify its own rule if it were permissible for a writ of certiorari to be annulled by the later vote of five objecting Justices. Indeed, if that were proper, it would be preferable to have the vote of annulment come into play the moment after the petition for certiorari has been granted, since then at least the litigants would be spared useless effort in briefing and preparing for the argument of their cases. Second, permitting the grant of a writ to be thus undone would undermine the whole philosophy of the 'rule of four,' which is that any case warranting consideration in the opinion of such a substantial minority of the Court will be taken and disposed of. It appears to me that such a practive would accomplish just the contrary of what representatives of this Court stated to Congress as to the 'rule of four' at the time the Court's certiorari jurisdiction was enlarged by the Judiciary Act of 1925. In effect the 'rule of four' would, by indirection, become a 'rule of five.' Third, such a practice would, in my opinion, be inconsistent with the long-standing and desirable custom of not announcing the Conference vote on petitions for certiorari. For in the absence of the intervening circumstances which may cause a Justice to vote to dismiss a writ as improvidently granted, such a disposition of the case on his part is almost bound to be taken as reflecting his original Conference vote on the petition. And if such a practice is permissible, then by the same token I do not see how those who voted in favor of the petition can reasonably be expected to refrain from announcing their Conference votes at the time the petition is acted on.
My Brother FRANKFURTER states that the course he advocates will not result in making of the 'rule of four' an empty thing, suggesting that in individual cases 'a doubting Justice' will normally respect 'the judgment of his brethren that the case does concern issues important enough for the Court's consideration and adjudication,' and that it is only 'when a class of cases is systematically taken for review' that such a Justice 'cannot forego his duty to voice his dissent to the Court's action.' However, it seems to me that it is precisely in that type of situation where the exercise of the right of dissent may well result in nullification of the 'rule of four' by the action of five Justices. For differences of view as to the desirability of the Court's taking particular 'classes' of cases-the situation we have here-are prone to lead to more or less definite lines of cleavage among the Justices, which past experience has shown may well involve an alignment of four Justices who favor granting certiorari in such cases and five who do not. If in such situations it becomes the duty of one Justice among the disagreeing five not to 'forego' his right to dissent, then I do not see why it is not equally the duty of the remaining four, resulting in the 'rule of four' being set at naught. I thus see no basis in the circumstance that a case is an 'individual' one rather than one of a 'class' for distinctions in what may be done by an individual Justice who disapproves of the Court's action in granting certiorari.
Although I feel strongly that cases of this kind do not belong in this Court, I can see no other course, consistent with the 'rule of four,' but to continue our Conference debates, with the hope that persuasion or the mounting calendars of the Court will eventually bring our differing brethren to another point of view.
Since I can find no intervening circumstances which would justify my voting now to dismiss the writs in these cases as improvidently granted, I turn to the merits of the four cases before us. I agree with, and join in, the Court's opinion in No. 46. I dissent in Nos. 28, 42 and 59. No doubt the evidence in the latter three cases can be viewed both as the three courts below did and as this Court does. So far as I can see all this Court has done is to substitute its views on the evidence for those of the Missouri Supreme Court and the two Courts of Appeals, and that is my first reason for dissenting. In my view we should not interfere with the decisions of these three courts in the absence of clear legal error, or some capricious or unreasonable action on their part. Nothing of that kind has been shown here. I would apply to cases of this type the reasoning of the Court in National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 502-503, 71 S.Ct. 453, 456, 95 L.Ed. 479, dealing with review of decisions of the National Labor Relations Board by the Courts of Appeals, 6 Cir., 180 F.2d 731:
'Were we called upon to pass on the Board's conclusions in the first instance or to make an independent review of the review by the Court of Appeals, we might well support the Board's conclusion and reject that of the court below. But Congress has charged the Courts of Appeals and not this Court with (that) normal and primary responsibility * * *. The same considerations that should lead us to leave undisturbed, by denying certiorari, decisions of Courts of Appeals involving solely a fair assessment of a record on the issue of unsubstantiality, ought to lead us to do no more than decide that there was such a fair assessment when the case is here * * *.
'This is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way.'
For my part, to overturn the judgments below simply involves second-guessing the Missouri Supreme Court, the Court of Appeals for the Seventh Circuit, and the Court of Appeals for the Second Circuit, on questions of fact on which they brought to bear judgments neither capricious nor unreasonable, and on which they made 'fair assessment of a record.'
I dissent also for another reason. No scientific or precise yardstick can be devised to test the sufficiency of the evidence in a negligence case. The problem has always been one of judgment, to be applied in view of the purposes of the statute. It has, however, been common ground that a verdict must be based on evidence-not on a scintilla of evidence but evidence sufficient to enable a reasoning man to infer both negligence and causation by reasoning from the evidence. Moore v. Chesapeake & O.R. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547. And it has always been the function of the court to see to it that jury verdicts stay within that boundary, that they be arrived at by reason and not by will or sheer speculation. Neither the Seventh Amendment nor the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. lifted that duty from the courts. However, in judging these cases, the Court appears to me to have departed from these long-established standards, for, as I read these opinions, the implication seems to be that the question, at least as to the element of causation, is not whether the evidence is sufficient to convince a reasoning man, but whether there is any scintilla of evidence at all to justify the jury verdicts. I cannot agree with such a standard, for I consider it a departure from a wise rule of law, not justified either by the provision of the FELA making employers liable for injuries resulting 'in whole or in part' from their negligence, or by anything else in the Act or its history, which evinces no purpose to depart in these respects from common-law rules.
For these reasons I think the judgments in Nos. 28, 42 and 59, as well as that in No. 46, should be affirmed.

## Notes

* ↑ In some instances where the Court has granted certiorari and simultaneously summarily disposed of the case on the merits, individual Justices (including the writer) have merely noted their dissent to the grant without reaching the merits. See, e.g., Anderson v. Atlantic Coast Line R. Co., 350 U.S. 807, 76 S.Ct. 60, 100 L.Ed. 725; Cahill v. New York, N.H. & H.R. Co., 350 U.S. 898, 76 S.Ct. 180, 100 L.Ed. 790. Even here, I am bound to say, it would probably be better practice for a Justice, who has unsuccessfully opposed certiorari, to face the merits, and to dissent from the summary disposition rather than from the grant of certiorari if he is not prepared to reach the merits without fulldress argument.
* ↑ See Burton, Judging Is Also Administration, 21 Temple Law Quarterly 77, 84-85 and n. 23 (1947).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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