The Coming Shift in the Supreme Court
KRISLOV, SAMUEL
The Coming Shift in the Supreme Court By Samuel Krislov OVERSHADOWED by other issues in this irrelevantly emotional Presidential campaign is another struggle for power, one whose outcome will be...
...It is doubtful that any President will be able to appoint a pair that will to any degree match the unique qualities of Frankfurter or Black...
...Should John Kennedy prevail...
...there they have remained a fairly dominant group overriding the minority...
...They have provided great depth to the deliberations that have taken place in the Court and, on more than a few occasions, contributed to the acrimony of recent proceedings...
...Not since the late 1940s has the balance between factions of the Supreme Court been so precarious...
...It must, however, be remembered that the two latest Eisenhower appointees, Charles Whittaker and Potter Stewart, replaced right-wing Justices with little force of personality and comparative lack of distinction...
...The dominant question before the Court since 1937 has been the proper role of the judiciary in a democratic society...
...It may very well be that it is more significant to obtain some sort of statement of attitude on this question than on the much more hotly discussed issue of who will be our next Secretary of State...
...Once the Justices must decide a case—and not just decide whether to hear it—they may line up in quite a different manner from the way they would vote on the strictly procedural question...
...Even the non-participation of a Justice today often sways the decision...
...More than anyone else they have galvanized the division in the Supreme Court and have given their characteristic tone to the discussions of almost a quarter-century...
...With their departure, the last of the great interpreters of the Court fight of 1937 will leave the Court...
...Ribicoff, however, has given no great indications of liberality of sentiment or intellectuality of utterance...
...In effect an evenly divided Court reversed the four-year-old decision in the Harry Slochower case, which held unconstitutional the summary dismissal of public employes for merely invoking the Fifth Amendment...
...When the extreme right tended to control of the Court, Frankfurter often joined with the Black-Douglas group...
...It is also important to remember that while adherents of the Black philosophy have tended to portray Frankfurter as a conservative, and while it is true that Frankfurter's votes have tended toward a status quo position, he has not acted as a true conservative...
...This power to command full discussion of a case is often a power to determine the direction of Court decisions...
...So it seems clear that some significant shift will take place...
...But so far he has remained unquestioned and silent on this issue...
...Frankfurter and Black are quite another story...
...The SAMUEL KRISLOV, an assistant professor of political science, teaches and writes at Michigan State University...
...There exists, as most commentators have noted, a coherent bloc of four (which often breaks down into two pairs) — William Douglas, Hugo Black, Earl Warren and William Brennan—the most solid grouping within the Court...
...crucial vote here was four to four, and the effect of this equal division was to sustain the California decision...
...In the face of this balance, the expected resignations of Justices Black and Felix Frankfurter loom as major elements in the pattern of politics that will emerge in the 1960s...
...Thus the general expectation seems to be that the drift of the Court will continue to be to the right—and at a faster pace...
...From the standpoint of numbers, five-to-four decisions are not uncommon...
...The Coming Shift in the Supreme Court By Samuel Krislov OVERSHADOWED by other issues in this irrelevantly emotional Presidential campaign is another struggle for power, one whose outcome will be determined by the election...
...The other five tend to be less cohesive except when the issue of internal security is involved...
...If one may deduce from President Eisenhower's recent appointments Rogers' likely future conduct—and such an inference seems justified by Eisenhower's known reliance upon staff work—the tendency of the Nixon Administration would clearly seem to be one which would strengthen the right wing of the Court...
...Black and Frankfurter, would simply result in a continuation of the previous precarious balance...
...Since Frankfurter has not always played the same cohesive role on the right that Black had on the left (until the arrival of Warren), it is the liberal wing of the Court that will feel the change most grievously...
...Further, his departure will reduce the libertarian bloc to below the number necessary to compel full consideration of cases under the Court's "rule of four...
...Harlan Fiske Stone and Robert Jackson have already departed...
...More than one President has significantly altered the shape of history through his power of appointment of Justices...
...After all, the Eisenhower Administration, which first saw a shift to the left as Warren and Brennan were appointed, has seen two new Justices come to the Court without any appreciable change in balance beyond a noticeable drift slightly to the right...
...The strong rumor has gone out that the 78-year-old Frankfurter and 74-year-old Black have postponed their departures from the Court merely in anticipation of a possible Democratic Presidential victory...
...Douglas, who alone among the remaining Justices was prominent at the time of the struggle, has a myriad of talents, but philosophical depth is not one of them...
...Inasmuch as the Court has already committed itself to stands that will keep it sufficiently involved in the near future, it might be just as well that such seminal discussions will be thrust to the background...
...While Justices notoriously find reasons for prolonging their stay on the Court, it is obvious that we may anticipate the departure of at least one of these two in the very near future...
...Governor Abraham Ribicoff looms as the most likely first nominee, a particularly logical choice upon the retirement of Frankfurter, who is also a New England Jew...
...For several years now the Court has tended to drift on an even keel, with little movement in the direction of either left or right...
...The status quo he has been defending is, after all, the liberal heritage of Oliver Wendell Holmes and Louis Brandeis...
...This question will tend to loom as less important with a Court characterized by individuals not dramatically involved in the great struggle of 1937...
...Kennedy would seem to have a freer hand (after Governor Ribicoff) in selecting Justices more nearly the stripe of Hugo Black...
...On other issues the bloc of four can often mobilize the fifth decision-maker, but this is by no means a constant...
...On the other hand, the dominant influence on judicial appointments in a Nixon Administration would probably be the present Attorney General, William Rogers...
...At first it would appear that the removal of the two protagonists...
...The important and deciding element was that the Chief Justice chose not to participate in view of his involvement in the California situation...
...This was dramatically illustrated this year in the case of Nelson v. the County of Los Angeles...
Vol. 43 • October 1960 • No. 40
