# Boys Markets, Inc. v. Retail Clerk's Union, Local 770/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Dissenting Opinion Black
United States Supreme Court
398 U.S. 235
Boys Markets, Inc. v. Retail Clerk's Union, Local 770
Argued: April 21, 22, 1970. --- Decided: June 1, 1970
Mr. Justice BLACK, dissenting.
Congress in 1932 enacted the Norris-LaGuardia Act, § 4 of which, 29 U.S.C. § 104, with exceptions not here relevant, specifically prohibited federal courts in the broadest and most comprehensive language from issuing any injunctions, temporary or permanent, against participation in a labor dispute. Subsequently, in 1947, Congress gave jurisdiction to the federal courts in '(s) uits for violation of contracts between an employer and a labor organization.' Although this subsection, § 301(a) of the Taft-Hartley Act, 29 U.S.C. § 185(a), explicitly waives the diversity and amount-in-controversy requirements for federal jurisdiction, it says nothing at all about granting injunctions. Eight years ago this Court considered the relation of these two statutes: after full briefing and argument, relying on the language and history of the Acts, the Court decided that Congress did not wish this later statute to impair in any way Norris-LaGuardia's explicit prohibition against injunctions in labor disputes. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).
Although Congress has been urged to overrule our holding in Sinclair, it has steadfastly refused to do so. Nothing in the language or history of the two Acts has changed. Nothing at all has changed, in fact, except the membership of the Court and the personal views of one Justice. I remain of the opinion that Sinclair was correctly decided, and, moreover, that the prohibition of the Norris-LaGuardia Act is close to the heart of the entire federal system of labor regulation. In my view Sinclair should control the disposition of this case.
Even if the majority were correct, however, in saying that Sinclair misinterpreted the Taft-Hartley and Norris-LaGuardia Acts, I should be compelled to dissent. I believe that both the making and the changing of laws which affect the substantial rights of the people are primarily for Congress, not this Court. Most especially is this so when the laws involved are the focus of strongly held views of powerful but antagonistic political and economic interests. The Court's function in the application and interpretation of such laws must be carefully limited to avoid encroaching on the power of Congress to determine policies and make laws to carry them out.
When the Court implies that the doctrine called Stare decisis rests solely on 'important policy considerations * * * in favor of continuity and predictability in the law,' it does not tell the whole story. Such considerations are present and, in a field as delicate as labor relations, extremely important. Justice Brandeis said, dissenting in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932):
'Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.'
In the ordinary case, considerations of certainty and the equal treatment of similarly situated litigants will provide a strong incentive to adhere to precedent.
When this Court is interpreting a statute, however, an additional factor must be weighed in the balance. It is the deference that this Court owes to the primary responsibility of the legislature in the making of laws. Of course, when this Court first interprets a statute, then the statute becomes what this court has said it is. See Gulf, C. & S.F.R. Co. v. Moser, 275 U.S. 133, 136, 48 S.Ct. 49, 50, 72 L.Ed. 200 (1927). Such an initial interpretation is proper, and unavoidable, in any system in which courts have the task of applying general statutes in a multitude of situations. B. Cardozo, The Nature of the Judicial Process 112 115 (1921). The Court undertakes the task of interpretation, however, not because the Court has any special ability to fathom the intent of Congress, but rather because interpretation is unavoidable in the decision of the case before it. When the law has been settled by an earlier case then any subsequent 'reinterpretation' of the statute is gratuitous and neither more nor less than an amendment: it is no different in effect from a judicial alteration of language that Congress itself placed in the statute.
Altering the important provisions of a statute is a legislative function. And the Constitution states simply and unequivocally: 'All legislative Powers herein granted shall be vested in a Congress of the United States * * *.' U.S.Const. Art. I. It is the Congress, not this Court, that responds to the presures of political groups, pressures entirely proper in a free society. It is Congress, not this Court, that has the capacity to investigate the divergent considerations involved in the management of a complex national labor policy. And it is Congress, not this Court, that is elected by the people. This Court should, therefore, interject itself as little as possible into the law-making and law-changing process. Having given our view on the meaning of a statute, our task is concluded, absent extraordinary circumstances. When the Court changes its mind years later, simply because the judges have changed, in my judgment, it takes upon itself the function of the legislature.
The legislative effect of the Court's reversal is especially clear here. In Sinclair the Court invited Congress to act if it should be displeased with the judicial interpretation of the statute. We said, 370 U.S., at 214-215, 82 S.Ct., at 1339:
'Strong arguments are made to us that it is highly desirable that the Norris-LaGuardia Act be changed in the public interest. If that is so, Congress itself might see fit to change that law and repeal the anti-injunction provisions of the Act insofar as suits for violation of collective agreements are concerned, as the House bill under consideration originally provided. It might, on the other hand, decide that if injunctions are necessary, the whole idea of enforcement of these agreements by private suits should be discarded in favor of enforcement through the administrative machinery of the Labor Board, as Senator Taft provided in his Senate bill. Or it might decide that neither of these methods is entirely satisfactory and turn instead to a completely new approach. The question of what change, if any, should be made in the existing law is one of legislative policy properly within the exclusive domain of Congress-it is a question for lawmakers, not law interpreters.'
Commentators on our holding found this invitation to legislative action clear, and judicial self-restraint proper. See Dunau, Three Problems in Labor Arbitration, 55 Va.L.Rev. 427, 464 465 (1969); Wellington & Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson, 72 Yale L.J. 1547, 1565-1566 (1963). Bills were introduced in Congress seeking to effect a legislative change. S. 3132, 89th Cong., 1st Sess. (1965); H.R. 9059, 89th Cong., 1st Sess. (1965). Congress, however, did not act, thus indicating at least a willingness to leave the law as Sinclair had construed it. It seems to me highly inappropriate for this Court now, eight years later, in effect to enact the amendment that Congress has refused to adopt. Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953); see also United States v. International Boxing Club of New York, Inc., 348 U.S. 236, 242-244, 75 S.Ct. 259, 262-263, 99 L.Ed. 290 (1955).
I do not believe that the principle of stare decisis forecloses all reconsiderations of earlier decisions. In the area of constitutional law, for example, where the only alternative to action by this Court is the laborious process of constitutional amendment and where the ultimate responsibility rests with this Court, I believe reconsideration is always proper. See James v. United States, 366 U.S. 213, 233-234, 81 S.Ct. 1052, 1062-1063, 6 L.Ed.2d 246 (1961) (separate opinion of Black, J.). Even on statutory questions the appearance of new facts or changes in circumstances might warrant re-examination of past decisions in exceptional cases under exceptional circumstances. In the present situation there are no such circumstances. Congress has taken no action inconsistent with our decision in Sinclair. Girouard v. United States, 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946). And, although bills have been introduced, cf. Helvering v. Hallock, 309 U.S. 106, 119-120, 60 S.Ct. 444, 451-452, 84 L.Ed. 604 (1940), Congress has declined the invitation to act.
The only 'subsequent event' to which the Court can point is our decision in Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). The Court must recognize that the holding of Avco is in no way inconsistent with Sinclair. As we said in Avco, supra, at 561, 88 S.Ct., at 1237: 'The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy.' The Court contends, however, that the result of the two cases taken together is the 'anomalous situation' that no-strike clauses become unenforceable in state courts, and this is inconsistent with 'an important goal of our national labor policy.' Avco does make any effort to enforce a no-strike clause in a state court removable to a federal court, but it does not follow that the no-strike clause is unenforceable. Damages may be awarded; the union may be forced to arbitrate. And the employer may engage in self-help. The Court would have it that these techniques are less effective than an injunction. That is doubtless true. But the harshness and effectiveness of injunctive relief-and opposition to 'government by injunction'-were the precise reasons for the congressional prohibition in the Norris-LaGuardia Act. The effect of the Avco decision is, indeed, to highlight the limited remedial powers of federal courts. But if the Congress is unhappy with these powers as this Court defined them, then the Congress may act; this Court should not. The members of the majority have simply decided that they are more sensitive to the 'realization of an important goal of our national labor policy' than the Congress or their predecessors on this Court.
The correct interpretation of the Taft-Hartley Act, and even the goals of 'our national labor policy,' are less important than the proper division of functions between the branches of our Federal Government. The Court would do well to remember the words of John Adams, written in the Declaration of Rights in the Constitution of the Commonwealth of Massachusetts:
'The judicial (department) shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.'
I dissent.
Mr. Justice WHITE dissents for the reasons stated in the majority opinion in Sinclair Refining Co. v. Atkinso, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).

## Notes

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