THE SUPREME COURT
1960 TERM

FOREWORD: THE PASSIVE VIRTUES

Alexander M. Bickel*

The volume of the Supreme Court's business is steadily on the rise. It seems to be, quite simply, a direct function of the birth rate. But the number of important and far-reaching issues offered up for decision in any single Term is, in some part at least, a matter of the accidents of litigation. Accident, so far as we can tell, contrived to make the October Term, 1960, one of the most remarkable of record. There was no single litigation quite so spectacular as the *Steel Seizure Case*¹ of 1952, or the *Segregation Cases*² of 1954 and 1955. But the Court was presented with an arresting variety of constitutional questions, truly to be described, in the phrase Marshall used in *Marbury v. Madison*, as "deeply interesting to the United States . . ." And in contrast to what Marshall would have had us believe of the issue in *Marbury*, these questions were also "of an intricacy proportioned to [their] interest."³

One is tempted to deal with the resultant prodigious output by passing a Solomonic judgment on it, something like Dean Griswold's on the subject of Professor Hart's *Foreword* of two years ago. Mr. Hart, Dean Griswold observed, should have cut what he had written in two, and printed the latter half at another time and perhaps in another place.⁴ The next best way out from under may be to talk not about what the Court did, but about whether it needed to do it; not so much, that is, about the Bill of Rights and the fourteenth amendment as about the Court's place in the scheme of American government. It happens that a number of this Term's most celebrated cases were as significant for having brought into focus the uses and nonuses of techniques of withholding ultimate constitutional adjudication, as for having wrought changes in substantive law. It may also be that questions of when, whether, and how much to adjudicate come as near as anything else to explaining the frequent divisions within the Court.

Writing in 1949, Professor Freund noted "a remarkable core of agreement on the Court" with respect to human rights and the rights of

* Professor of Law, Yale University. B.S., College of the City of New York, 1947; LL.B., Harvard University, 1949.
¹ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
² Brown v. Board of Educ., 347 U.S. 483 (1954), 349 U.S. 294 (1955).
³ 5 U.S. (1 Cranch) 137, 176 (1803). But see Arnold, *Professor Hart's Theology*, 73 HARY. L. REV. 1298 (1960).
⁴ Griswold, *Foreword: Of Time and Attitudes—Professor Hart and Judge Arnold, The Supreme Court, 1959 Term*, 74 HARY. L. REV. 81, 83 (1960); see Hart, *Foreword: The Time Chart of the Justices, The Supreme Court, 1958 Term*, 73 HARY. L. REV. 84 (1959).

1961]

THE SUPREME COURT — FOREWORD

property. He found that "the degree of concord in this area is much more important than the degree of discord . . . ."⁵ Despite unmuffled sounds of dispute, the area of concord has in some significant respects enlarged. One need only mention the *Segregation Cases*, *Cooper v. Aaron*,⁶ and a whole pride of summary dispositions⁷ as bespeaking the Court's unity in disposing of what is surely the single most important issue to come before it, at least in this century. More may be ventured. The conceptual distance between Mr. Justice Black's absolutist positions, on the first amendment, for example, and the majority's generally more "balanced" results — to use the word the Justice particularly disspises — may not be the true measure of the area of discord between them. The extremity of Justice Black's absolutist professions is a dissenting position. It is an opposition program. As Professor Charles L. Black, Jr., recently undertook to explain, there may be a great deal about it that is merely tactical; Justice Black knows as well as anyone else that free speech cannot be an absolute — pure, unconditional, never to be restricted — and that the first amendment does not literally say any such certain thing.⁸ The gap is perhaps not as wide as has seemed. It exists and it is not to be minimized. The Justices do not all assess the values of speech and association alike. "There is something voluptuous in meaning well" — so Henry Adams reports a not altogether ill-meant remark by the French Minister about President Jefferson.⁹ The Justices are not all equally first amendment voluptuaries. Moreover, the absolutist-literalist position raises a grave question of process; a question, some might say, of candor. For in propagating his absolutes, Justice Black chooses to obscure the actual process of decision. Yet on the immediate merits, more discord may strike the ear than is necessarily involved.

But to say that the Justices may be nearer than is apparent to certain common value judgments concerning civil rights and liberties¹⁰ is not to ameliorate the plainly observable differences in the results they often reach. It is to say that there would be fewer occasions for such differences if certain techniques of the mediating middle way were more imaginatively utilized. The Court, as Mr. Hart has written, "is predestined in the long run . . . to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles . . . ."¹¹ The question is not only which principles and how, but also, when and in what circumstances.

⁵ FREUND, ON UNDERSTANDING THE SUPREME COURT 11, 9 (1949).
⁶ 358 U.S. 1 (1958).
⁷ *E.g.*, State Athletic Comm'n v. Dorsey, 359 U.S. 533 (1959) (athletic contests); New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (public parks); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (public golf course).
⁸ See *Mr. Justice Black, the Supreme Court and the Bill of Rights*, Harper's, Feb. 1961, p. 63.
⁹ Quoted in LEVENSON, THE MIND AND ART OF HENRY ADAMS 129 (1957).
¹⁰ See also, *e.g.*, Sweezy v. New Hampshire, 354 U.S. 234, 261-67 (1957) (Frankfurter, J. concurring); FRANKFURTER, MR. JUSTICE HOLMES AND THE SUPREME COURT 76 (1961).
¹¹ Hart, *supra* note 4, at 99.