Gideon's Trumpet (31 page)

¹
The
in forma pauperis
statute is 28 U.S.C. 1915(a).

²
Betts v. Brady
, 316 U.S. 455 (1942).

³
The quoted passage from
Betts
is on p. 462.

¹
Jackson,
The Supreme Court in the American System of Government
12 (1955).

²
The 1938 decision requiring federal judges to follow state-court decisions in diversity cases was
Erie RR. v. Tompkins
, 304 U.S. 64.

³
Martin v. Hunter’s Lessee
, 1 Wheaton 304 (1816).

⁴
Supreme Court review of state-court decisions is controlled by 28 U.S.C. 1257.

⁵
Thompson v. Louisville
, 362 U.S. 199 (1960).

⁶
N.A.A.C.P. v. Alabama
, 357 U.S. 449 (1958). Holmes spoke of “springes” in
Davis v. Wechsler
, 263 U.S. 22 (1924).

⁷
The Dred Scott case is
Scott v. Sandford
, 19 Howard 393 (1857).

⁸
Justice Brandeis’s great statement of the barriers to constitutional decisions is in
Ashwander v. Tennessee Valley Authority
, 297 U.S. 288, 346 (1936). Quotations from Brandeis later in this chapter are from the same opinion.

⁹
“The most important thing we do is not doing” was often said by Brandeis to his law clerks and has been recalled especially by one of them, Professor Paul A. Freund.

¹⁰
The birth-control cases:
Tileston v. Ullman
, 318 U.S. 44 (1943), and
Poe v. Ullman
, 367 U.S. 497 (1961).

¹¹
The security case:
Peters v. Hobby
, 349 U.S. 331 (1955).

¹²
The Hughes letter can be found at 81 Congressional Record 2814 (1937).

¹³
Story’s remark about the size of the Court is quoted in Hughes,
The Supreme Court of the United States
238 (1928).

¹⁴
In the early years of the Court, Congress fixed the number of justices at varying levels, from six to ten. Since 1869 there have been nine.

¹⁵
Taft’s testimony is in House Judiciary Committee Hearings on H.R. 10479, 67th Congress, 2d Session, p. 2. It is quoted injustice Frankfurter’s dissenting opinion in
Dick v. N.Y. Life
, 359 U.S. 437, 447, 452 (1959).

¹⁶
The Vinson address is printed at 69 Sup. Ct. Reporter VI (1949). (The citation is to a privately published set of reports of Supreme Court decisions.)

¹⁷
Justice Brennan’s statement is in Brennan,
Supreme Court Review of State Court Decisions
, 38 Michigan State Bar Journal, No. 11, pp. 14, 18 (November, 1959).

¹⁸
The School Segregation case:
Brown v. Board of Education
, 347 U.S. 483 (1954).

¹⁹
The Frankfurter warning:
Foster v. Illinois
, 332 U.S. 134, 139 (1947).

¹
The Brandeis phrase was recalled by a former law clerk, James M. Landis.

²
Jackson,
The Supreme Court in the American System of Government
16 (1955).

³
Hughes’ remarks are in 11 Proceedings of the American Law Institute 313, 314 (1934).

⁴
Jackson on law clerks: op. cit. at p. 20. Clark,
The Supreme Court Conference
, 19 Federal Rules Decisions 303, 304 (1956). (The last citation is to a reporter that covers decisions of all courts interpreting the federal rules of legal procedure.)

⁵
Justice Frankfurter in
Brown v. Allen
, 344 U.S. 443, 493 (1953).

⁶
The decision construing the paupers’ statute was
Adkins v. du Pont Co.
, 335 U.S. 331, 339 (1948).

⁷
Douglas,
The Supreme Court and Its Case Load
, 45 Cornell Law Quarterly 401, 407 (1960).

⁸
Schaefer,
Federalism and State Criminal Procedure
, 70 Harv. L. Rev. 1, 25 (1956). The Douglas quotation is from his Cornell article, op. cit., p. 408.

⁹
Justice Douglas uses only one law clerk. With three for the Chief Justice and two for each of the others, the total for the Court is eighteen.

¹⁰
Frankfurter,
Chief Justices I Have Known
, in
Of Law and Men
(Elman, editor) 111, 133 (1956). The Jackson quotation, op. cit., p. 15.

¹¹
Justice Frankfurter’s view on dismissing writs of certiorari was in his dissenting opinion in
Rogers v. Missouri Pacific RR.
, 352 U.S. 500, 524 (1957).

¹
Rule 53(7) of the Supreme Court Rules provides for the appointment of counsel and the payment of transportation expenses.

²
Bartkus v. Illinois
, 359 U.S. 121 (1959).

³
The new Illinois statute barring double prosecutions can be found in the compendium of Illinois laws at 38 Ill. Smith-Hurd Ann. Stat. 3–4.

⁴
The right to present one’s own case is granted by 28 U.S.C. 1654.

⁵
Justice Frankfurter in
Dennis v. United States
, 340 U.S. 887 (1950).

⁶
The New York prayer case:
Engel v. Vitale
, 370 U.S. 421 (1962).

⁷
Biddle,
In Brief Authority
176 (1962).

⁸
Durham v. United States
, 214 F.2d 862, 874 (1954). (The citation is to the Federal Reporter, 2d series, reporting decisions of the United States Courts of Appeals.)

⁹
For a comment on the unsentimental Brandeis and widows and orphans, see Freund,
Mr. Justice Brandeis: A Centennial Memoir
, 70 Harv. L. Rev. 769, 787 (1957).

¹
Jackson in
Brown v. Allen
, 344 U.S. 443, 540 (1953).

²
Marbury v. Madison
, 1 Cranch 137 (1803).

³
Jackson, op. cit., p. 26.

⁴
A notable expression of Justice Frankfurter’s belief in judicial restraint was his dissent in the second Flag Salute case,
West Virginia Board of Education v. Barnette
, 319 U.S. 624, 646 (1943).

⁵
Justice Harlan’s address at the American Bar Center, August 13, 1963.

⁶
The outstanding statement of Justice Black’s view on constitutional absolutes is in his lecture,
The Bill of Rights
, reprinted in
The Great Rights
(Cahn, editor) 43 (1963) and also reprinted in a collection of Black’s writings,
One Man’s Stand for Freedom
(Dilliard, editor) 33 (1963).

⁷
The wiretapping case:
Goldman v. United States
, 316 U.S. 129 (1942). The school-bus case:
Everson v. Board of Education
, 330 U.S. 1 (1947).

⁸
Brandeis on precedent:
Burnett v. Coronado Oil and Gas Co.
, 285 U.S. 393, 405, 406 (1932).

⁹
Holmes on Henry IV:
The Path of the Law
, an 1897 address reprinted in
Collected Legal Papers
167, 187 (1920).

¹⁰
The separate-but-equal doctrine was laid down in
Plessy v. Ferguson
, 163 U.S. 537 (1876).

¹¹
The law-review study of overruling is Blaustein and Field,
“Overruling” Opinions in the Supreme Court
, 57 Michigan L. Rev. 151, 162 (1958).

¹²
Justice Black’s criminal contempt dissent was in
Green v. United States
, 356 U.S. 165, 193 (1958).

¹³
McCulloch v. Maryland
, 4 Wheaton 316 (1819).

¹⁴
The Supreme Court invalidated major New Deal measures for coal mines in
Carter v. Carter Coal Co.
, 298 U.S. 238 (1936), and for farms in
United States v. Butler
, 297 U.S. 1 (1936). The Court’s symbolic turning point was
N.L.R.B. v. Jones & Laughlin Co.
, 301 U.S. 1 (1937), sustaining the Wagner Act.

¹⁵
The report of the Chief Justices is printed at 104 Congressional Record A7782 (1958).

¹⁶
Frankfurter on federalism:
Knapp v. Schweitzer
, 357 U.S. 371, 380 (1958), and
Bartkus v. Illinois
, 359 U.S. 121, 138 (1959).

¹⁷
The quotation from Justice Black in
Bartkus
is at p. 155.

¹⁸
The Madison material can be found in Brennan,
The Bill of Rights and the States
, reprinted in
The Great Rights
(Cahn, editor) 69–70 (1963).

¹⁹
Barron v. Baltimore
, 7 Peters 243 (1833).

²⁰
Adamson v. California
, 332 U.S. 46 (1947).

²¹
The Cardozo formulation was in
Palko v. Connecticut
, 302 U.S. 319 (1937).

²²
The Court held First Amendment restraints inapplicable to the states in
Prudential Insurance Co. v. Cheek
, 259 U.S. 530 (1922).

²³
Professor Freund’s wry observation is in Freund,
The Supreme Court of the United States
47 (1961).

²⁴
The free-speech guarantee was read into the Fourteenth Amendment in
Gitlow v. New York
, 268 U.S. 652 (1925).

²⁵
The Arkansas case:
Moore v. Dempsey
, 261 U.S. 86 (1923).

²⁶
The search- and seizure case: Wolf v. Colorado, 338 U.S. 25 (1949).