# Swift Company v. Wickham/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
United States Supreme Court
382 U.S. 111
Swift Company v. Wickham
Argued: Oct. 13, 1965. --- Decided: Nov 22, 1965
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice CLARK concur, dissenting.
Less than four years ago, this Court decided that a three-judge district court was required in suits brought under 28 U.S.C. § 2281, even though the alleged 'ground of the unconstitutionality' of the challenged statute was based upon a conflict between state and federal statutes. Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641.
A state statute may violate the Equal Protection Clause of the Fourteenth Amendment or the Due Process Clause or some other express provision of the Constitution. If so a three-judge court is plainly required by 28 U.S.C. § 2281. But the issue of the 'unconstitutionality' of a state statute can be raised as clearly by a conflict between it and an Act of Congress as by a conflict between it and a provision of the Constitution. The Supremacy Clause, contained in Art. VI, cl. 2, of the Constitution, states as much in clear language:
'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'
An issue of the 'unconstitutionality' of a state statute is therefore presented whether the conflict is between a provision of the Constitution and a state enactment or between the latter and an Act of Congress. What Senator Overman, author of the three-judge provision, said of it in 1910 is as relevant to enjoining a state law on the ground of federal pre-emption as it is to enjoining it because it violates the Fourteenth Amendment:
'The point is, this amendment is for peace and good order in the State. Whenever one judge stands up in a State and enjoins the governor and the attorney-general, the people resent it, and public sentiment is stirred, as it was in my State, when there was almost a rebellion, whereas if three judges declare that a state statute is unconstitutional the people would rest easy under it. But let one little judge stand up against the whole State, and you find the people of the State rising up in rebellion. The whole purpose of the proposed statute is for peace and good order among the people of the States.' 45 Cong.Rec. 7256.
Some of the most heated controversies between State and Nation which this Court has supervised have involved questions whether there was a conflict between a state statute and a federal one or whether a federal Act was so inclusive as to pre-empt state action in the particular area. One of the earliest and most tumultuous was Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 440, 5 L.Ed. 257, where the alleged unconstitutionality of a Virginia law was based on the argument that an Act of Congress, authorizing a lottery in the District of Columbia, barred Virginia from making it a criminal offense to sell lottery tickets within that State. The protest from the States was vociferous even though the Court in the end construed the federal Act to keep it from operating in Virginia. Id., at 447. I therefore see no difference between a charge of 'unconstitutionality' of a state statute whether the conflict be between it and the Constitution or between it and a federal law. Neither the language of the Supremacy Clause nor reason nor history makes any difference plain.
Pre-emption or conflict of a state law with a federal one is a recurring theme arising in various contexts. The storm against Cohens v. Commonwealth of Virginia was a protest against this Court's acting as referee in a federal-state contest involving pre-emption or a conflict between the laws of the two regimes. Congress has recently been concerned with the problem in another aspect of the matter, when efforts were made to curb the doctrine of pre-emption by establishing standards for an interpretation of an Act of Congress. The three-judge court is only another facet of the self-same problem.
The history of 28 U.S.C. § 2281, as related by the Court speaks of the concern of Congress over the power of one judge to bring a halt to an entire state regulatory scheme. That can-and will hereafter-happen in all cases of pre-emption or conflict where the Supremacy Clause is thought to require state policy to give way. A fairly recent example is Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754, where a federal court injunction in a pre-emption case suspended Alabama's program for control of renovated butter-a demonstrably important health measure. The Court in Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568, where one of the issues was pre-emption or conflict between two statutory systems, emphasized that the interest of the States in being free from such injunctive interference at the instance of a single judge outweighed the additional burdens that such a rule imposed on the federal court system. On reflection I think that result better reflects congressional policy even though, as in Cohens v. Commonwealth of Virginia, the end result is only a matter of statutory construction.
On the basis of virtually no experience in applying that interpretation of the statute, a majority has now decided that the rule of Kesler is 'unworkable' and, therefore, that our previous interpretation of the statute must have been incorrect. I regret that I am unable to join in that decision. My objection is not that the Court has not given Kesler 'a more respectful burial,' Gideon v. Wainwright, 372 U.S. 335, 349, 83 S.Ct. 792, 799, 9 L.Ed.2d 799 (concurring opinion), but that the Court has engaged in unwarranted infanticide.
Stare decisis is no immutable principle. There are many occasions when this Court has overturned a prior decision, especially in matters involving an interpretation of the Constitution or where the problem of statutory construction had constitutional overtones.
An error in interpreting a federal statute may be easily remedied. If this Court has failed to perceive the intention of Congress, or has interpreted a statute in such a manner as to thwart the legislative purpose, Congress may change it. The lessons of experience are not learned by judges alone.
I am unable to find a justification for overturning a decision of this Court interpreting this Act of Congress, announced only on March 26, 1962.
If the Court were able to show that our decision in Kesler had thrown the lower courts into chaos, a fair case for its demise might be made out. The Court calls the rule 'unworkable.' But it is not enough to attach that label. The Court broadly asserts that 'lower courts have quite evidently sought to avoid dealing with its (Kesler's) application or have interpreted it with uncertainty.' For this proposition only three cases (in addition to the instant case) are cited. The Court's failure to provide more compelling documentation for its indictment of Kesler is not the result of less than meticulous scholarship, for so far as I have been able to discover, the truth of the matter is that there are no cases (not even the three cited) even remotely warranting the conclusion that Kesler is 'unworkable.'
Kesler was an attempt to harmonize our earlier cases. If the Kesler test is 'unworkable' as the Court asserts, we should nonetheless accept its basic premise:
'Neither the language of § 2281 nor the purpose which gave rise to it affords the remotest reason for carving out an unfrivolous claim of unconstitutionality because of the Supremacy Clause from the comprehensive language of § 2281.' 369 U.S., at 156, 82 S.Ct., at 810.
If there is overruling to be done, we should overrule Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, and Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249.
That the ground of unconstitutionality in many so-called Supremacy Clause cases is found only in the asserted conflict between federal and state statutes is, as I have said, no basis for distinguishing that class of cases from others in which three-judge courts are plainly required. While courts are, strictly speaking, engaging in statutory construction in such cases, the task of adjudication is much the same as in what all would concede to be constitutional adjudication. Though the purpose of Congress is the final touchstone, the interests which must be taken into account in either case are much the same, as Cohens v. Commonwealth of Virginia eloquently demonstrates.
The Court has decided, on no more than the gloomy predictions contained in a handful of law review articles, that Kesler would inevitably produce chaos in the federal courts, that the rule announced there is 'unworkable.' Those predictions have plainly not been borne out. If difficulties arise, Congress can cure them. Until Congress acts, I would let Kesler stand.
I therefore believe that a three-judge court was properly convened and that we should decide this appeal on the merits.

## Notes

* ↑ See 1 Warren, The Supreme Court in United States History, p. 552 et seq. (1928).
* ↑ Thus the dissent in Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 179, 62 S.Ct. 491, 507, 86 L.Ed. 754, called that decision in favor of pre-emption 'purely destructive legislation.' And see Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447; Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299; Cf. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350.
* ↑ H.R. 3, 88th Cong., 1st Sess., in material part provided:
* ↑ The concern of Congress in this chapter of federal-state relations did not concern the three-judge court problem but the broader aspects envisaged by such cases as Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, Railway Employes v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, and Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754. See H.R.Rep. No. 1820, 87th Cong., 2d Sess., p. 3 et seq.
* ↑ See Radin, Case Law and Stare Decisis, 33 Col.L.Rev. 199 (1933).
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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