Evening star., 1946-06-16
Feuding in Supreme Court
Has Genesis in Picket Case
Flood of Dissents Follows 1940.41 Decision With
Opinions Gaining Rancor, and Involving
Personal Attacks in Some Instances
By yoseth 4. For

a. For
ments left Chief Justice Stone, who
was promoted by President Roosevelt,
and Justice Roberts as the sole sur
vivors of Republican days. The new
comer-Jackson and Byrnes-leaned
more to the right than to the left,
although Justice Brynes contributed
one decision that provoked sharp dis
sent from Chief Justice Stone when he
held that the Antiracketeering Act
could not be used to punish New York
teamsters for extortion. Neither JUS
tice Roberts nor Justice jackson par
ticipated in that decision, which was
roundly criticized in the country.
Justice Byrnes remained on the court
for but one term when he was drafted
by President Roosevelt to serve as
economic stabilizer. Justice Wiley D.
Rutledge succeeded him.
Dissents continued to mount. They
went to l5S in 1912, los the next
year and 1876 in 1894. The court was
falling into two fairly-Well defined
groups, with Justices Black, Reed, Doug
side, and Chief Justice Stone and JUS
tices Roberts. Frankfurter and Jackson
on the other That alignment, of course,
did not always hold, but as a general
proposition, it was typical.
Disagreements Become Personal.
The war served to draw public in
terest from the tribunal and its doings.
but it bounded back into the limelight
with a bang in January and February,
1914, when Monday decision sessions
found the Justices having field days in
disagreement.
On one occasion, there were dissents
in nine of fourteen cases, and two opin-
ions by Justice Black in which Justice
Murphy joined, were directed solely at
doctrines expounded by Justice Frank
furter. In patent law case in which
Justice Frankfurter dissented, Justice
Black said his associate proposed to
interpret the laws on the basis of his
personal views on morals and ethics"
In a utilities case in which Justice
Frankfurter was in the minority the
Black-Murphy team said he made what
is patiently wholly gratuitous assertion
as to constitutional law
A few weeks later, Justice Frankfurter
used virtually the same language in at
tacking the grounds on which the court
reached decision in banking case.
although he agreed with the result The
courts opinion was written by Justice
roaI,-
the Frankfurter blast.
That period also found Justice Frank
furter joining in dissent in maritime
case IN which Justice Roberts con-
demned the majority opinion written by
Chief Justice Stone for discarding prec-
edent. and said that the administra-
ton of justice will fall into disrepute" if
the court persisted in such a course.
Demonstrating the extent to which the
lines crossed at times, Justice Jackson
was in the majority on that occasion.
Language Is Moderate.
Dissents jumped again that term to
1876, but after the midwinter explosion.
the justices moderated their language.
Rumors of innercouncil disturbances
continued, however.
The 1944-5 term saw dissents sky
rocket to 23l, with Justice Roberts con-
tributing the top figure of Sand quit
ting the court at the end of the year.
1t had become evident at this stage
that Justice Jackson disagreed with the
philosophy of the liberal bloc in two
important fields-regulation of business
and free play for labor Even in concur
ring and thus casting the deciding vote
in the Sd decision by which the court
upset the contempt conviction of R. ]
Thomas, the CIO auto workers head,
for speaking in defiance of an injunc-
ton after he had refused to comply
with the Texas labor agent-registration
law, Justice jackson read a lecture to
the majority.
Il must admit that in overriding the
findings of the Texas court, we are ap-
plying to Thomas rule the benefit of
which in all its breadth and vigor this
court denies to employers in National
Labor Relations Board cases. Justice
Jackson said, in concluding that Texas
had imposed previous restraint" on
the right of free speech. He was equally
plain-spoken in other cases.
1t was near the end of this term that
the court rendered the 5-4 decision in
the Jewel Ridge case which held that
coal miners were entitled to portal-to-
portal pay. and brought about the clash
between Justices Jackson and Black
when the former dissented, and then
raised the issue of the appearance in
that and an earlier case of Justice
Blacks erstwhile law partner, Cramp-
ton Harris, of Birmingham. who repre-
sented the victorious miners.
A review of the term just ended shows
that the court was able to reach
unanimous decision in but So cases out
Of 1875. With never more than eigS
justices sitting, and after the death of
Chief Justice Stone, in April, but seven,
total of la dissenting votes were cast
Presumably because of deadlocked
court, it was necessary to put 20 cases
over for re-argument next year-a rec
ord. One of these involves the important
question of the application of antitrust
laws to unions conspiring with en-
ployers to restrict competition and raise
prices and wages. 1t will be the second
time that litigation has been reargued.
1t went over to the past term after the