# Organization for a Better Austin v. Keefe/Dissent Harlan

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* Dissenting Opinion Harlan
United States Supreme Court
402 U.S. 415
Organization for a Better Austin v. Keefe
Argued: Jan. 20, 1971. --- Decided: May 17, 1971
Mr. Justice HARLAN, dissenting.
In deciding this case on the merits, the Court, in my opinion, disregards the express limitation of our appellate jurisdiction to '(f)inal judgments or decrees,' 28 U.S.C. § 1257, and does so in a way which undermines the policies behind limiting our review to judgments 'rendered by the highest court of a State in which a decision could be had,' ibid., and interferes with Illinois' arrangements for the expeditious processing of litigation in its own state courts.
It is plain, and admitted by all, that the 'temporary' or 'preliminary' injunction entered by the Circuit Court of Cook County and affirmed by the Appellate Court, First District, is not a final judgment. Review of preliminary injunctions is a classic form of interlocutory appeal, which Congress has authorized in limited instances not including review by this Court of state decrees. See 28 U.S.C. §§ 1252, 1253; cf. 28 U.S.C. § 1292(a)(1). Despite the seemingly absolute provision of the statute, the Court holds that this case is within the judicially created exception for instances in which the affirmance of the interlocutory order by the highest state court decides the merits of the dispute for all practical purposes, leaving the remaining proceedings in the lower courts as nothing more than a formality. See Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382, 73 S.Ct. 749, 751, 97 L.Ed. 1094 (1953); Construction Laborers' Local 438 v. Curry, 371 U.S. 542, 550-551, 83 S.Ct. 531, 536-537, 9 L.Ed.2d 514 (1963); Mills v. Alabama, 384 U.S. 214, 217-218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966). The apparent, though unstated, justification for this is the petitioners' representation in this Court that they have no defense to offer other than their First Amendment contentions, which they assert the Illinois courts have decided against them on the merits. Pet. for Cert. 6.
Even assuming that the latter position is correct, this case does not fit into the mold of the cases in which this Court has reviewed orders of state supreme courts affirming the grant of preliminary relief, for here the Illinois Supreme Court has never passed on the merits of petitioners' constitutional contentions. If this case were permitted to return to the trial court for consideration of the merits of petitioners' contentions and the entry of final judgment, petitioners would have an appeal as of right directly to the Illinois Supreme Court if that judgment were adverse to them. Ill.Const., Art. 6, § 5, S.H.A.; Ill.Supp.Ct.Rules 301, 302(a), Ill.Rev.Stat.1969, c. 110A, §§ 301, 302(a). That court would then have an opportunity to correct the errors, if any, in the lower court judgment; or if it failed to do so we would have the benefit of that court's views on the issues here presented. Such review by 'the highest court of a State in which a decision could be had' is particularly important in the context of Illinois procedure, which places primary responsibility for review of constitutional contentions in the State Supreme Court. All appeals from final judgments in cases involving a constitutional question must be taken directly to that court, see Ill.Supp.Ct.Rule 302(a)(2); consequently the intermediate Appellate Court rarely has occasion to engage in constitutional adjudication.
To be sure, the Illinois Supreme Court, by denying petitioners' motion for leave to appeal from the order of the Appellate Court, had an opportunity to rule on the issue presented by this case and declined to do so. However, Illinois has a strong policy against Supreme Court review of interlocutory orders. Until recently the Supreme Court had no direct appellate jurisdiction over judgments of the Appellate Court on interlocutory appeals, but simply reviewed the issues presented by the subsequent final judgment. 6 C. Nichols, Illinois Civil Practice § 5998 (1962 rev. vol. H. Williams & M. Wingersky). Although interlocutory review is now available in the discretion of the Supreme Court, it is 'not favored.' Ill.Sup.Ct.Rule 318(b); see also Ill.Sup.Ct.Rule 315(a). We have ourselves often made a similar resolution of the competing interests in prompt correction of lower courts' errors on the one hand and in expeditious processing of litigation to final judgment on the other. See R. Stern & E. Gressman, Supreme Court Practice § 4.19 (4th ed. 1969). Under today's decision, Illinois will have to surrender its judgment in these matters if it desires to interpose the State Supreme Court between the subordinate state courts and review by this Court, as the highest-state-court requirement permits it to do. If this Court would respect the final judgment limitation on our jurisdiction, Illinois would not be put to this choice.
It is, of course, tempting to ignore the proper limitations on our power when the alternative is to delay correction of what the Court today holds was a flagrant error by lower courts. This is particularly true where, as here, a 'temporary' injunction has been outstanding for a lengthy period. But the question is not whether we think our intervention in the dispute at this stage would be desirable-although with our overall docket running at about 4,000 cases a Term there is surely much to be said for giving each litigant only one bite at the apple. The policy judgment involved was expressly committed to Congress by Art. III, § 2, of the Constitution, and Congress has spoken in § 1257.
I would respect that congressional judgment and dismiss the writ for lack of jurisdiction.

## Notes

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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