The
American
University
Law Review
VOLUME 18
MARCH,
1969
NUMBER 2
CONGRESS, THE SUPREME COURT AND
PUBLIC POLICY: ACTIVISM, RESTRAINT
AND INTERPLAY
Stephen P. Strickland*
If there was any consistent philosophical content running through the
arguments of those Senators opposing the nomination of Mr. Justice
Fortas as Chief Justice of the United States, it included a view of the
Supreme Court as the neutral interpreter of statutes and constitution,
and a belief that the present court, the "Warren Court," had gone
too far in substituting its own judgments for those of Congress and
the framers of the Constitution as to desirable public policy.
Such senatorial convictions were stated in various ways. Senator
Baker said:
As we all know, it is the solemn duty of the Supreme Court to interpret
constitutional principles and statutory rules. But, in the areas where Congress has spoken. Supreme Court Justices must subordinate their values to
those the legislature has decreed.'
Senator Holland added:
My own great concern about this matter is . . . that that activist
majority is so destructive of precedent and so disruptive of the flow of
regular law-making and law-interpreting . . . I think the Senator is
exactly right in calling attention to the fact that . . . there may be more
than half the Senate that share our concern about the fact that a
majority of the Court, over the continuous opposition of a minority, has
insisted on making law, has insisted on cutting corners, has insisted,
* Director, President's Commission on White House Fellows: Staff Director, National
Advisory Council on the Education of Disadvantaged Children; Editor and Contributing author,
HUGO BLACK AND TH- SUPREME COURT (Bobbs-Merrill, 1967).
I. 114 CONG. REC. 11,461 (daily ed. Sept. 26, 1968).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
because of their zeal in believing that such and such a thing should be
law, that they will make it law by the decision
of a simple majority of
2
the Court, from which there is no appeal.
Senator Murphy indicated concern about "the dangerous practice"
engaged in by the Court, where "the language as written into the law
was misread or misinterpreted, or the meanings were changed by
some members of the Court. ' '3 Senator Ervin summed it up:
The Administrative agencies, the Executive departments and the Supreme
Court must stop ignoring Congressional will when it has been expressed,
and stop by-passing it entirely by legislating on their own. And
Congress, for its part, must insist that its constitutional authority be
respected . .
.
.Simply stated, if the people of the nation are to have an
effective voice in the running of their own affairs, then they, acting
through their elective representatives in Congress, and at the State and
local level, must be the ones who actually determine public policy.
Others in the Senate discounted the philosophical element in the
arguments of those opposing Justice Fortas' elevation. Senator Hart
suggested that "some cynics might even come to believe that the
greatest misfortune of Abe Fortas is having his appointment
considered in an election year and in a time when personal political
5
gain is tremendously important.'
Perhaps it is impossible to separate the political from the
philosophical elements of such a controversy. Certainly the inherent
tensions between the Congress, on the one side, and the Executive and
the Judiciary on the other, are likely to be exaggerated in election
years, when the political antennae of public officials quiver more
sensitively than ever. And exaggerated tensions lead to exaggerated
verbalizations of philosophical positions; vis the clear implication in
Senator Ervin's remarks that the Supreme Court has no rightful role
in the establishment of public policy.
I.
THE COURT'S MEANS OF INFLUENCE
One could argue that simply by virtue of its constitutionally
prescribed position as one of three separate but equal branches of
national government in a federal system, the Supreme Court may be
presumed to have some role in the establishment of public policy in
2.
3.
4.
5.
Id. at S. 11,455-56.
Id. at S. 11,487.
114 CONG. REC. S. 11,293 (daily ed. Sept. 24. 1968).
114 CONG. REC. S. 11,293 (daily ed. Sept. 19, 1968).
1969]
ACTIVISM. RESTRAINT AND INTERPLA Y
the broadest sense. Its traditional function in this regard has, at least
since Marbury vs. Madison, been one of oversight or review. More
specifically, the Court's role in the policy making process has usually
been thought of as a negative one.7 Thus what really bothers those
Senators who object to the Warren Court is that the Court in recent
years has sometimes moved beyond the negative aspects of policy
influence into a more positive, "activist" role.
Those who might approve a negative role for the Court, in the
broad policy process, but who oppose the Court's activist tendencies
seem to forget that a negative role may be as powerful as a positive
one, especially if a veto power is involved. Even when the veto
component is not necessarily absolute, as in the case of the Supreme
Court, the negative power may be used to curb, delimit, redirect, force
reconsideration of, hence ultimately to shape public policy. The Court
of the last quarter-of the 19th Century is certainly to be credited with
helping to effectuate a pro-business policy environment, if not to
establish policy itself. Tfie Court of the 1920's and '30's breathed new
life into the concept of substantive due process and consequently
affected at least the ground-rules of public policy-making by
preventing legislatures, state and national, from regulating certain
aspects of commercial and industrial activity. And the most dramatic
examples of the power of blunt negativism accompanied the advent of
the New Deal: particular public policies, proposed by a popularly
supported President and approved often by large majorities of the
people's elected representatives in Congress, were flatly blocked by the
Court.
However, whether the Court's power is negative or something
more-whether it is used to block or to promote particular public
policies or whether, instead, it merely extends or restrains or
elaborates upon policies in their effects, regardless of what is formally
promulgated by legislative action or attempted by Presidential
order-may only be a matter of semantics. What is clear is that the
Supreme Court has, as a matter of historical fact as well as
theoretically under a Constitutional arrangement, shaped or helped to
shape public policy in our country.
Controversies such as the Fortas case themselves represent one form
of interaction between the Congress and the Supreme Court. The
6. I U.S. (I Cranch 137) 368 (1803).
7. E.g., Carl Swisher's discussion of the Court's changing role since ' 'ew Deal days, in
History's Panoramaand Justice Black's Career. in HUGo BLACK AND THE SUPREME COURT 3-4
(S. Strickland ed. 1967).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
problem with them is that they exaggerate the implications of
inevitable tension between the two branches; they cloud the truer
perspective of a relationship which, despite brief occasional ruptures, is
more normally characterized by consciously constructive interplay between Congress and the Supreme Court.8 More specifically, the drama
of such momentary conflicts obscures what otherwise seems to be a
general Congressional acceptance of some policy making role for the
Supreme Court.
Thus, it seems timely to explore the ways, as well as to describe
briefly the arenas, in which the Court performs a role in the
establishment of public policy. On the premise that public policy in
the United States is established through organs of government, and
that under the Constitution it is established more actively by the
political branches of government, the general purpose of this article, is
to examine when and how the Supreme Court brings its influence to
bear upon the policy process. A correlative purpose is to examine the
interplay between the Congress and the Court. Special attention will
be given to the Court's definition of the issues involved, and to the
Court's view of what its role should be, and why, in particular cases.
A.
Policy Implications o Constitutional Interpretation
Although images of its past performance may always hover over the
scene, the Supreme Court's active role in policy development, even on
the constitutional stage, is always delayed until at least the second act;
and at that, it cannot depend on the timing of its entrance. This is
principally because the formal separation of powers under which our
National Government operates is more rigidly enforced between the
Court and Congress, and between the Court and the Executive, than
between the Executive and Legislative Branches. It is often difficult to
ascribe the origin of legislation to one or the other political branch of
Government. One short-hand concept is that "the President proposes
and the Congress disposes," but legislation formally proposed as a part
of a president's program may be the outgrowth of previous legislative
activity which qriginally neither had a presidential imprimatur nor,
for that matter, evoked any presidential interest. Further, both the
common practice of bureaucrats writing reports for congressional
committees and the fact that Congress, through its committees and
8. Lyle Denniston suggests that its "punishment" of the Supreme Court in the Fortas affair
left the Senate feeling uneasy because it did not enjoy its new role as the Court's antagonist. The
Evening Star (Washington, D.C.), Oct. 3, 1968, § A, at 7, col. I (city ed.).
1969]
ACTIVISM, RESTRAINT AND INTERPLA Y
even through individual members, sometimes dominates both the
major and minor aspects of program administration, have blurred the
actual functional separation of powers, and, simultaneously, have
dramatized the theoretical nature of the concept of separated powers
as it affects the Congress and the Executive Branch. Meanwhile,
despite rare and troublesome exceptions, the Supreme Court is not
only jormally but actually separated from the early stages of policymaking process. So even in areas where constitutional questions loom
large, the Court may not offer guidance or help at the policy's birth,
but must wait until some uncertain point in the future to apply its
judgment.
A second reason for the Court's delayed-reactor status is that the
adversary system under which laws are traditionally tested
circumscribes the Court's freedom to decide upon which issues,
involving public policies, it wishes to leave its imprint, and in what
order. Of course, especially are new public policies-whether of the
statutory variety or otherwise-which are constitutionally
questionable, likely also to be controversial; and controversial federal
or state laws, executive fiats and judicial rules, are usually tested
quickly as to their constitutionality. Thus the Supreme Court had a
chance to pass on the Civil Rights Act of 1964 and the Voting Rights
Act of 1965 shortly after their respective enactments.9
1. Extending the Parametersof Interpretation
Perhaps it is especially because of the uncertain time schedule of its
activity that the Court has sometimes cast particular issues presented
to it in larger frameworks permitting decisions of larger impact on
public policy. In the reapportionment cases of the early sixties, the
Court not only determined specific legislative arrangements to be
unconstitutional, but suggested positive formulas for constitutional
apportionment.10 Impatient with the case-by-case definition of the
rights of suspected or alleged criminals, the Court with equal boldness
has laid out guidelines to be followed in the handling of the suspected
and the accused in all future cases."1 In such instances, where the Court
is thought to have intruded too far onto the turf of other branches or
levels of government, there is inevitably a reaction from the offended
bodies and the press and sometimes from segments of the public.
9. Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S.
294 (1964); South Carolina v. Katzenbach, 383 U.S. 301 (1966).
10. Gray v. Sanders, 372 U.S. 368 (1963); Westberry v. Sanders, 376 U.S. I (1964).
II. Escabedo v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436 (1966).
THE AMERICAN UNIVERSITY LAW REVIEW
2.
[Vol. 18
Congressional Response
Whenever the Court can claim a Constitutional base for its taking
action, the reaction of Congress-our main interest here-is
intriguing. For example, in the course of Senate debate on the
Miranda decision, which was seen as Court policy favoring criminals
as opposed to public policy favoring the people at large, it was more a
matter of lambasting the decision of the Court than of challenging the
role of the Court, though, once more, the two elements are not easily
separable. In the end, the Congress modified the effects of the
Miranda decision;" it reacted to the Court's definition of acceptable
public policy in this area by redefining that policy- illustrating
another form of interplay that is the thesis of this article. But the
Congress did not seek to assume general jurisdiction over the defining
of due process; indeed, it would be most uncomfortable with such
responsibility.
In the areas involving religion, where the Court has again seemed to
take the lead in the defining of national policy, some members of
Congress have been critical of the school prayer decisions; 3 yet a
major argument frequently employed by those battling the Dirksen
prayer amendment has been that this particular area of public policy
should exclusively, because it must ultimately, be decided by the
Court and not by the Congress. That argument, of course, is a
natural one for those who favor the Engle v. Vitale4 decision. But
that the Senate not only recognizes but welcomes Court jurisdiction in
policy areas where lurk questions of separation of church and state, is
clearly demonstrated in the passage of the bill inviting the Court's
judgment as to the constitutionality of recent legislation making
public funds available to non-public school children by allowing
groups of taxpayers to bring suit challenging such legislation." The
12. 18 U.S.C. § 3501 (1964 Supp.).
13. Engel v. Vitale, 370 U.S. 421 (1962).
14. Id.
15. S. 2097, 89th Cong. Ist Sess. (1965) and S. 3, 90th Cong., 2d Sess. (1967). See discussion
in 113 CONG. REC. 4,822-34 (daily ed. April 11, 1967). Senator Ervin, the bill's principal
sponsor, specified its purpose as securing guidance, from the Court to the Congress, on the first
amendment:
This bill does not attempt to define the meaning of the first amendment. It merely undertakes to make certain that the Federal district courts shall have jurisdiction of suits to
determine the validity, under the first amendment, of grants and loans of tax monies
authorized by certain acts of Congress. It thereby enables Congress hereafter to legislate in
constitutional light rather than in constitutional darkness.
There is ample reason for the increasing support for judicial review in Congress. That reason
19691
ACTIVISM, RESTRAINT AND INTERPLAY
political implications of the matter aside, the Congress conceivably
could have decided in the first instance that such programs were
unconstitutional. The Court is, of course, the ultimate arbiter of such
questions, but the Constitution's guidelines also govern the executive
and legislative branches, and neither, presumably, would seek to foster
unconstitutional policy or, for that matter, to establish substantively
constitutional policy by unconstitutional procedures. In fact, the
Congress did long feel that any federal programs whereunder public
monies would be given for use in parochial institutions would be
unconstitutional. That sentiment was expressed in every debate on
federal aid to education measures from World War 1I to the early
1960's. In retreating from this judgment with the passage of the
Elementary-Secondary Education Act of 1965, the Congress withdrew
its objections largely for the reason that the Court would be allowed
6
to decide the issue.1
There is another kind of evidence that, despite inevitable objections
by some individuals in Congress to particular Supreme Court
decisions, Congress in the aggregate does not object to" the Court's
role in public policy formulation on the constitutional level. The
Roosevelt administration and the New Deal Congress of the early
1930's may have legitimately felt themselves to be up against a
frustrating and impenetrable wall when measure after measure,
program after program, was declared by the court to be invalid on
Constitutional grounds. Yet the remedy proposed for that situation
was, in effect, a change in the Court's size and personnel, not in its
role. The Congress of the middle 1960's had specific opportunities to
counteract the Court's much criticized "'one man-one vote" decision,
but failed to do so according to the terms set by the Constitution.
Perhaps more telling of the tacit recognition of the Court's right to a
part in the establishment of public policy on this level is what may
fairly be described as by-and-large Congressional approval of the
7
Supreme Court's desegregation decisions of the early 1950's,
decisions which must have embarrassed Congress by dramatizing its
can be stated simply: It is impossible for Congress to legislate intelligently, or for the
administration to administer intelligently, in a constitutional vacuum with no judicial
guidelines as to what Federal aid is consistent with the first amendment prescriptions
against an establishment of religion. Id. at S. 4823.
16. See. remarks of Rep. Emmanuel Celler. Chairman of the House Judiciary Comnittee,
Ill CONG. REc. 6131-33 (1965).
17. Brown v. Board of Educ., 347 U.S. 483 (1954); Brown v. Board of Educ., 349 U.S. 294
(1955).
THE AMERICAN
UNIVERSITY LA W REVIEW
[Vol. 18
impotence to deal with one of the gravest social crises of our times:
the effects of a century of actual denial of legally and philopsophically
guaranteed equal rights for all citizens.
True, what Congress thinks as Congress is often difficult to
delineate. Those Southern members of the House of Representatives
who, by the dozens after the Brown case decision of 1954, introduced
bills to curb the appellate jurisdiction of the Supreme Court, 8 may
argue that inaction on such legislation is simply due to the fact that
the chairman of the House Judiciary Committee, where such bills are
referred, did and does favor the Court's liberal decisions; and that, if
given a chance to vote on the matter,'a majority of House members
would agree to the proposed curb on the Court's review activities. The
screening effect of the committee system generally, and in particular,
the traffic-cop power of committee chairmen, cannot be gainsaid. Yet
there are ways of getting around that system. One is inclined to doubt
whether Congress really wants to curtail sharply the Court's role in
the larger system wherein public policy gets defined, thus established,
against the background of the Constitution.
Perhaps there is not much more that can usefully be said about the
role of the Supreme Court in policy making on constitutional issues.
The point suggested so far, is that the Court has been engaged in this
role since its early days; that it claims constitutional authority for it;
and that, in performing it, the Court more often than not enjoys at
least tacit approval of the political branches of government,
specifically including the Congress. The Court's judgment is
sometimes sharply questioned when it casts what others see as
political issues in constitutional terms so that it can claim the right to
deal with them. But inasmuch as its preeminence among the three
branches of government as expounder of the Constitution cannot be
denied, so its role in shaping constitutionally-affected public policy is
accepted.
B.
Policy Implications of Statutory Construction
In a way, more interesting questions surround the Supreme Court's
role in the effectuation of statutory policy. Certainly it cannot be
asserted that public policy involving taxation and labor relations is a
more important kind of public policy than that affecting the use of
18. The first such bill was H.R. 3701, 84th Cong., Ist Sess. (1955), introduced by Rep.
Mendel Rivers of South Carolina; a current example is H.R. 395, 90th Cong., Ist Sess. (1967)
introduced by Rep. William Comer of Mississippi.
1969]
ACTIVISM. RESTRAINT AND INTERPLAY
public funds in parochial schools or the size of legislative districts.
Many would suggest the opposite: that questions of public policy
involving constitutional issues-or allegedly involving constitutional
issues-are by far the more important. Hence the Court is always
more widely and often more vehemently attacked for its position on
such issues, despite its clearer constitutional claim to a role in
deciding them, than it is for its interpretation of antitrust laws, for
example. The reason for this may have to do with the fact that more
people feel they are affected by decisions on constitutional questions;
no doubt it also has to do with the fact that the correction of (what
are considered to be) wrong decisions by the Court on constitutional
questions is considerably more difficult than the correction of errors in
statutory interpretation-the latter being at least theoretically
achievable merely by a majority vote in Congress.
On the other hand, in terms of numbers of cases and decisions, it is
clear that statutory interpretation is the Court's- dominant activity.
For example, in the second half of the October 1965 Term, the Court
issued a few more than 100 opinions.19 Fifty-nine of these were brief
per curiam opinions (affirming, over-ruling or remanding) which did
not require an elaboration of the Court's views on the issues involved.
Of the remaining forty-plus cases, twenty-four involved detailed
statutory interpretation and only four of those clearly had component
constitutional issues to be decided. This suggests that the Supreme
Court has more frequent opportunity to affect public policy in the
course of its interpretation of laws enacted by Congress than in any
other of its roles.
1. CongressionalPowers Shared: Assignment or Assumption?
Regardless of whether the Court's impact on public policy is more
important on the level of constitutional interpretation or statutory
interpretation, there is greater intrigue, at least to the student of
Congress, about the latter role. Under the Constitution, the Congress
carries specific responsibility -indeed exclusive original responsibility-for the establishment of policy in a number of areas,
among them the regulation of commerce, the laying and collecting of
taxes, and the promotion of the "progress of science and the useful
arts" by the assignment of patents. Yet even in the case of these
19. This is my own count, made by reading through Vol. 384 of the United States Reports.
The breakdown is subjective, but I believe accurate enough to give a fair impression of the
division of the Court's work, at least for that half-term.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
specific grants of power, including the authority "to make all laws
which shall be necessary and proper" to carry out the requisite
responsibilites, is the Supreme Court's influence in evidence. The
elementary question is, why does this happen and how is it justified?
a. Specific Acknowledgement of Court Jurisdiction.
The essential procedural reason, of course, is that Congress has, by
statute, invited the Court's participation in the interpretation of
statutes in these fields. For instance, in addition to creating a system
of special administrative and judicial bodies to deal with questions of
patent rights, Congress, in 1948, passed a law providing that "cases
in the Court of Customs and Patent Appeals may be reviewed by the
Supreme Court by writ of certiorari.""0
Congress is specifically charged by the Constitution with
establishing "uniform laws on the subject of bankruptcies throughout
the United States;" yet on occasion it has asked the Court's help in
shaping the finer points of policy. It did so in 1954, for example,
attempting to deal with the delicate question of the status of the
unrecorded federal tax liens in bankruptcy cases. 2' Different ways of
dealing with the issue were proposed by the House and the Senate, but
"at conference, the House conferees acceded to the views of the
Senate, which deemed it 'advisable to rely upon judicial interpretation
of existing law instead of attemping to prescribe statutory rules.' ,22
Or consider an area wherein Congress is even more sensitive df its
prerogatives, despite a more general, as opposed to specific,
constitutional authority: the ability to secure what it considers
necessary and proper responses to queries and requests in the course
of legislative ,nvestigatidns. In such instances, congressional
committees depend, for sanction, upon contempt citations, and when
such citations are overturned by the Supreme Court, as has not
infrequently occurred since the beginning of the McCarthy period,
congressional outcries are sometimes ferocious. Yet as the Court
pointed out in Gojack v. United States23 in 1965, the Congress, in
enacting guidelines for legislative investigation in 1857, ".
specifically indicated that it relied upon the courts to apply exacting
standards of criminal jurisprudence to charges of contempt of
20.
21.
22.
23.
Brenner v. Manson, 383 U.S. 519, 523 (1966).
See description in United States v. Speers, 382 U.S. 266, 271-74 (1965).
Id. at 274.
384 U.S. 702 (1965).
ACTIVISM, RESTRAINT AND INTERPLA Y
19691
Congress in order to assure that the congressional investigative power,
'2
when enforced by penal sanctions, would not be abused.
b.
Distance Between Words and Meaning
Accepting the Supreme Court's right to enter the premises, a
rudimentary justification for its impact on statutory policy is simply
the inadequacy of words. Since Congress enacted the first patent law
in 1790, a patent can be obtained by anyone who "invents or
discovers any new useful process, machine, [or] manufacture . . .-25
and present law extends the patent right to any new and useful
"Composition of matter, or any new and useful improvement thereof
"26 But when the Supreme Court attempted to apply this seemingly clear provision in the case of Brenner v. Manson,2 it was once
more struck with the fact that "as is so often the case . . a simple,
everyday word can be pregnant with ambiguity when applied to the
facts of life." 28
In Brenner, the Court had been called upon to decide a case in
which the Patent Office and the Court of Customs and Patent
Appeals were in conflict over how the patent law's utility test was to
be applied "to a chemical process which yields an already unknown
product whose utility-other than as a possible object of scientific
inquiry-has not yet been evidenced." 9 The Court further explained
its problem:
Even if we knew precisely what Congress meant in 1790 when it devised
the "new and useful" phraseology and in subsequent re-enactments of
the test, we should have difficulty in applying it in the context of
contemporary chemistry where research is as comprehensive as man's
grasp and where little or nothing is wholly beyond the pale of
"utility"--if that word is given its broadest rbach?3
c.
Conflicting Statutes
Another reason and opportunity for the Court's active influence in
shaping public policy occurs when two statutes overlap or conflict.
24.
25.
26.
27.
28.
29.
30.
Id. at 707.
Brenner v. Manson, 383 U.S. 519, 529 (1966).
Id.
383 U.S. 519 (1966).
Id. at 529.
Id.
Id. at 530.
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[Vol. 18
Such a situation occurred in Amell v. United States3' and was
explained in the opening paragraph of the Court's opinion:
The Suits in Admiralty Act vests exclusive jurisdiction in the district
courts when the suit is of a maritime nature. Under the Tucker Act, the
Court of Claims has jurisdiction over contractual claims against the
United States. This jurisdictional interaction presents itself here."2
d.
CongressionalAmbivalence
Still another reason and opportunity for the Court's active policyshaping role in connection with statutory law occurs when Congress
has been unable to spell out precise meanings and implications. In no
other area of statutory interpretation has the Supreme Court's
"activism" in shaping-even creating-policy been more criticized
than in the field of corporate mergers. More specifically, in the subfield of bank mergers, critics, including some members of the Court
itself, have charged that public policy was being created by judicial
legislation. ' Following the Court's decision in the Philadelphia bank
case in 1965, when for the first time the antitrust laws were applied to
bank mergers, Congress enacted legislation presumably clarifying its
intentions toward such application.i Yet subsequently, the Supreme
Court once more found Congressional intent uncertain in some of its
specifics and continued to exercise its own discretion, at least in
regard to the- procedural aspects of bank mergers. Was the Court
merely being perverse in determining public policy according to its
own economic philosophy rather than the intent of Congress? It
pointedly denied such a possibility, asserting that the most recent
congressional signals were as vague as the earlier ones, and candidly
suggesting why.
The 1966 [Bank Merger] Act was the product of powerful contending
forces, each of which in the aftermath claimed more of a victory than
it deserved, leaving the controversy
that finally abated in Congress
35
to be finally resolved in the courts.
31. 384 U.S. 158 (1966); see also Carnation Co. v. Pacific Westbound Conference, 383 U.S.
213 (1966).
32. Amell v. United States, 384 U.S. 158, 159 (1966).
33. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 373 (1963) (dissenting opinion of
Harlan, J.).
34. Act of Feb. 21, 1966, Pub. L. No. 89-356, 80 Stat. 7; as amended. 12 U.S.C. § 1828 (c)
(Supp. 111, 1965-68).
35. United States v. First City Nat. Bank, 386 U.S. 361, 367 (1967).
19691
ACTIVISM. RESTRAINT AND INTERPLAY
2.
Court Reaction to Policy Making Opportunity
a.
Legislative Guidelines and Judicial Choice
In the case of conflicting opinions of lower decision-rendering
bodies (as in the Brenner case) or when statutes are in conflict (as in
Amell), the Supreme Court has no recourse but to decide the issues,
hence shape public policy, according to its lights. There is, of course,
more than one way to approach such problems, as the differences of
opinion in Brenner point out 6 Justice Fortas, speaking for a sevenman majority, sought, in traditional manner, to find clues to the
meaning of the vague words of the statute by examining Court
precedents and legislative history. Neither was very helpful: "Justice
Story's language [in several early decisions] sheds little light on our
subject, ' 3 71 and ". . . we find no specific assistance in the legislative
materials underlying Sec. 101 . .
,"8Thus Justice Fortas was
"remitted to an analysis of the problem in light of the general intent
of Congress, the purposes of the patent system, and the implications
of a decision one way or another. 3' 9 His ultimate conclusion was that
the chemical process for which a patent was sought had no proven
utility, even though it held some promise of usefulness in the future:
"But a patent is not a hunting license. It is not a reward for the
search, but compensation for its successful conclusion." 40 Besides,
"..*. a process patent in the chemical field, which has not been
developed and pointed to the degree of specific utility, creates a
monopoly of knowledge which should be granted only if clearly
commanded by specific statute."'"
In searching for guidelines before enunciating policy, it seems clear
that Justice Fortas relied to some extent on his own convictions,
evidently shared by a majority of his brethren, about patent
monopoly. Justice Harlan, in a dissent joined by Justice Douglas,
admitted that the decision could legitimately go either way, that the
statute "is on its face open both to respondent's construction and to
the contrary reading given it by the Court, ' 4 2 and that "[in the
absence of legislative history on this issue, we are thrown back on
36. 383 U.S. 519, 536 (1966).
37. Id. at 533.
38. Id. at 532.
39. Id.
40. Id. at 536.
41. Id. at 534.
42. Id. at 536-37.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
policy and practice." 43 But he would rely on the most consistent past
practice of the Patent Office, rather than on which he considered as a
shaky interpolation of congressional philosophy, divined in the
abstract. Though not emphatic about the matter, Justice Harlan
suggested that there was a chance the Court was too freely exercising
its own notions of what the relevant public policy should be:
While available proof is not conclusive, the commentators seem to be in
agreement that until Application of Breinter . . .chemical patent
applications were commonly granted although no resulting end use was
stated or the statement was in extremely broad terms. Taking this to be
true, Breninier represented a deviation from established practice which
the CCPA has now sought to remedy in part only to find that the Patent
Office does not want to return to the beaten track. If usefulness was
typically regarded as inherent during a long and prolific period of
chemical research and development in this country, surely this is added
reason why the Court's result should not be adopted until Congress
expressly mandates it, presumably on the basis of empirical data which
this Court does not possess.4
Yet, to repeat, Justice Harlan offered his dissent while "[f]ully
recognizing that there is ample room for disagreement on this
problem .. -15
b.
Conflicting statutes and court precedents.
Especially in cases where conflicting statutes are presented to the
Supreme Court for the first time does the Court painstakingly
examine the legislative record for clues as to congressional preference.
Chief Justice Warren's meticulous analysis in Anmell of the history of
the Suits in Admiralty Act and the Tucker Act, as well as of other
relative statutes, is one clear indication of this. He found that, "[a]s
in other jurisdictional questions involving intersecting statutes, there is
no positive answer. We can do no more than exercise our best
judgment in interpreting the will of Congress.""
The Court takes a somewhat different posture with regard to
reconsideration of intersecting statutes where it has previously built up
a body of precedent and its own rationale for policy enunciations.
Thus in Jackson v. Lykes 7 the Court had little difficulty in deciding
43. Id. at 537.
44. Id. at 539-40.
45. Id. at 540.
46. Amell v. United States, 384 U.S. 158, 166 (1966).
47. Jackson v. Lykes Bros. S.S. Co. Inc., 386 U.S. 731 (1967).
19691
ACTIVISM. RESTRAINT AND INTERPLA Y
that a longshoreman's widow could sue a steamship line for damages
in her husband's accidental death under admiralty law, despite
language in the Federal Longshoreman's and Harbor Worker's
Compensation Act which indicated that "compensation benefits
required by that Act to be given by an employer to a longshoreman or
his representative for 'injury or death' 'shall be exclusive and in place
of all other liability of such employer to the employee.' "Is The
Court's rationale was that while the Longshoreman's Act was
"designed to provide equal justice to every longshoreman similarly
situated," 49 it did not excuse steamship line employers from liability
for unseaworthiness of its vessels under admiralty law. Said Justice
Black for the seven-man majority: "We cannot hold that Congress
intended any such incongruous, absurd, and unjust result in passing
this [Longshoreman's] Act." 50
Justice Stewart argued in dissent (in a manner that, ironically,
seemed typical of the Black approach) that "exclusive" meant
"exclusive."'" But in the face of an impressive series of prior decisions
heading clearly in the direction of the majority opinion, he could
persuade only Justice Harlan to accept his view. The majority
apparently found that the admiralty aspects of this situation were (as
Chief Justice Warren, in Amell, acknowledged was sometimes the
case) "so deeply woven in the fabric of the law that congressional
action is required to overturn
it.
'
' 52
The Court has evidenced equal certainty of conviction with regard
to the application of labor laws having provisions that intersect with
53
provisions of other labor laws. In Sinclair Refining Co. v. Atkinson
the question was "whether Sec. 301 of the Taft-Hartley Act, in giving
federal courts jurisdiction of suits between employers and unions for
breach of collective bargaining agreements, impliedly repealed Sec. 4
of the pre-existing Norris-LaGuardia Act, which, with certain
exceptions . . . barred federal courts from issuing injunctions 'in any
case growing out of labor disputes.' -51
The Court's answer was that Taft-Harley did not impliedly repeal
Norris-LaGuardia on the points in question. It justified its conclusion
48.
49.
50.
51.
52.
53.
54.
Id. at 731-32 n., quoting 33 U.S.C. § 905 (1964).
386 U.S. 731, 735 (1967).
Id.
Id. at 736-37.
Amell v. United States, 384 U.S. 158, 163 (1966).
370 U.S. 195 (1962).
Id. at 196.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
by elaborate reference to Congressional action, especially emphasizing
that
the failure of Congress to include a provision . . . expressly repealing the
anti-injunction provisions of the Norris-LaGuardia Act must be
evaluated in the context of a statutory pattern that indicates not only
that Congress was completely familiar with those provisions but also
that it regarded an express declaration of inapplicability as the normal
and proper manner of repealing them in situations where such repeal
seemed desirable . . . . Consequently, we do not see how cases
implementing the purpose of Sec. 301 can be said to have freed this
Court from its duty to give effect to the plainly expressed congressional
purpose with regard to the application of. . . Norris-LaGuardia.56
Justice Brennan, in a dissent joined by Justices Douglas and Harlan,
implied that the Court was raising a smoke screen of concocted
Congressional purpose in order to follow its own "wooden preference
for one statute over the other. ' 57 As he saw the situation, ". . . the
two provisions do co-exist, and it is clear beyond dispute that they
apply to the case before us in apparently conflicting senses. Our duty,
therefore, is to seek out that accomodation of the two which will give
fullest possible effect to the central purposes of both." 5 8
Justice Brennan got close to the point, and then missed it, in
hinting that it was more the Court's preference for one statute over
the other, rather than any unquestionable congressional command,
that led to its conclusion. He also gave away his own tendencies when
he registered the additional objection that "the decision leads
inescapably to results consistent neither with any imaginable
legislative purpose nor with sound judicial administration." 5 That
statement, coupled with his enthusiastic espousal of grievance
arbitration "as a proved technique for industrial peace," 60 leads to the
infereqpe that he would have been perfectly willing to express, through
the decision, his own opposite preference as to what constituted
sound public policy, if he could have persuaded enough of his brethren
to that preference. The central implication of the majority opinion is, to
paraphrase a famous judicial epigram, that statutory exceptions to judicial precedents are not lightly implied. This attitude on the part of the
S5.
56.
57.
58.
59.
60.
Id. at
Id. at
Id. at
Id. at
Id. at
Id. at
205.
213.
224.
216.
225.
227.
19691
ACTIVISM, RESTRAINT AND INTERPLA Y
Court seems to be especially strong where there is a body of precedent
relating to the interpretation of conflicting statutes.
3.
Stare Decisis v. United States Congress: Court Precedent as
Continuing Policy.
Stare decisis has not, since the New Deal Court was established,
enjoyed the same standing it once had. Shortly after the first
Roosevelt appointee came to the Court in 1937, the Court began to
reappraise the doctrine of adherence to precedents in deciding new
cases. It soon came to the conclusion that the rule of stare decisis had
''only a limited application in the field of constitutional law,'',' but it
conceded that the rule had "more potency in cases where correction
can be achieved through legislation than in those involving the
Constitution, where correction is only possible through the laborious
6' 2
process of amendment.
This approach seems to characterize the Supreme Court of the late
sixties as well as that of the later thirties, and it carries significant
implications for the Court's involvement in the establishment of
public policy. While the Court seems to treat its own precedents
involving conflicting statutes with particular deference, as if they
constitute a sort of common law that takes precedence over general
legislative activity in the field, the same attitude affects other areas
where the Court has left its firm imprint on public policy. An obvious
example is in the area of bank merger decisions already alluded to.
While admitting that one reason prompting the Bank Merger Act of
1966 was to increase the power of those administrative agencies with
special responsibilities over banks (specifically the Comptroller of the
Currency) and to curtail the freedom, if not the zeal, with which the
Antitrust Division of the Department of Justice was attacking bank
mergers, Justice Douglas, speaking for the Court in the most recent
case,6 3 chose to rely for an explanation of the Act on one of the
protagonists in the congressional drama who had a very different
motive. He quoted Rep. Patman, the Texas Populist, to the effect that
the 1966 Act required the Court "to make an independent
determination of the issues" 64 in bank merger cases; and to the effect
that the Court "is not to give any special weight to the determination
61.
62.
63.
64.
New York v. United States, 326 U.S. 57.2, 590 (1946).
Paul, Mr. Justice Black and Federal Taxation. 65 YALE L.J. 495, 511 (Feb. 1956).
United States v. First Nat. City Bank 386 U.S. 361, 368 (1967).
Id.
THE AMERICAN UNIVERSITY LA W REVIEW
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of the bank supervisory agency on this issue. '"" Rep. Patman's
interpretation, plus the fact that "the momentum of judicial
precedents is in that direction,"" led Douglas to the conclusion
(accepted by all members of the Court) that, despite discernable but
inconclusive congressional purposes, the Comptroller of the
Currency's status with regard to bank mergers had improved only
marginally, if at all. To attach any greater importance to the
provision requiring that the Comptroller's opinion on the advisability
of mergers be made a part of any court action would be "to assume
that Congress made a revolutionary innovation by making
administrative action well nigh conclusive .
"..."67The point, said
Douglas, was that while "the courts may find the Comptroller's
reasons persuasive or well nigh conclusive . . . it is the court's
judgment, not the Comptroller's, that finally determines whether the
merger is legal. That was the practice prior to the 1966 Act; and we
cannot find a purpose on the part of Congress to change the rule." 8
In a real sense, Douglas was defending the Court's role in the
determination of public policy in the bank merger area in the face of
strong criticism of its past decisions. Indeed, his choice of language
seemed defensive:
The courts are not left at large as planning agencies. The effect on
competition is the standard; and it is a familiar one. If the
anticompetitive effect is adverse, then it is to be excused only if "the
convenience and needs of the community to be served" clearly outweigh
it. We see no problems in bringing these standards into the area of
judicial competence. 8
But the implicit point in the Houston bank case is as important as
the point of the Court's antimerger competence which Douglas
asserted so emphatically. That point is that until the Congiess
overturns the Court's decisions by very explicit language, the Court is
likely to cling to its previous decisions as the best guide to what the
law is.
This attitude is evidenced in a variety of cases. In a 1966 tax case,7 '
for example, where an Internal Revenue ruling was being challenged,
the IRS suggested that a recent congressional enactment confirmed a
65.
66.
67.
68.
69.
70.
Id., quoting 112 CONG. REC. 2335 (1966).
386 U.S. 361, 368 (1967).
Id. (emphasis added).
Id. at 369.
Id. at 369-70.
Fribourg Nay. Co. v. Commissioner, 383 U.S. 272 (1966).
19691
ACTIVISM. RESTRAINT AND INTERPLAY
prior I RS action by clarifying rather than by changing existing law.
To accept this interpretation, the Court would have to admit that its
own previous decisions in the area were incorrect, and this it declined
to do. Further, it sought to reverse the argument of IRS as to what
was novel and what was traditionally correct.
Over the same extended period of years during which the foregoing
administrative and judicial precedent was accumulating, Congress
repeatedly re-enacted the depreciation provision without significant
change. Thus, beyond the generally understood scope of the depreciation
provision itself, the Commissioner's prior long-standing and consistent
administrative practice must be deemed to have received congressional
approval. . . . In succeeding years Congress was repeatedly asked to
enact legislation treating gains on sales of depreciated property as
ordinary income [as IRS claims it had authority to do]; it declined to do
7
so until 1962.
Similarly, the Court has insisted that its interpretation of Sec. 6 of
the Norris-LaGuardia Act, relieving unions and their members "from
liability for damages or imputation of guilt for lawless acts done in
labor disputes ' 72 was not only correct but continuing, regardless of a
provision of the subsequently enacted Taft-Hartley Act which
"expressly provides that for the purpose of that statute," other
standards should apply. 73 Justice Brennan, speaking for the Court,
was the "strict constructionist," pointing out that "although the
legislative history indicates that Congress was well aware of the
Carpenters decision, it did not repeal Sec. 6 outright, 7 4 and its
failure to do so meant that the precedent should stand.
4.
Breaking New Ground
If the Court's preference for the rule of stare decisis-as applied to
congressional action which might be interpreted as appositive to
Court precedents-were the sum and substance of Court posture with
respect to legislatively enacted public policy, that might seem
innocuous enough. We have illustrated how the Court comes to have
a say-so about statutory policy in the first place; and if, when invited
specifically or circumstantially to have that say-so, the Court merely
71. Id. at 283-84.
72. Mine Workers v. Gibbs, 383 U.S. 715, 736 (1966), quoting Brotherhood of Carpenters v.
United States, 330 U.S. 395, 403 (1947).
73. 383 U.S. 715, 736 (1966).
74. Id.
THE AMERICAN UNIVERSITY LA W REVIEW
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took advantage of the opportunity and then stood by its judgment
unless that judgment was explicitly over-ruled by Congress, it is
difficult to see how reasonable objections to the practice could be
raised. The problem is that, in addition to throwing up the rule of
stare decisis to block what are alleged to be congressional efforts to
modify the law, the Court on occasion takes an opposite and less
modest tack. In Southeastern Underwriters v. United States, 5 for
example, the Court, led by Justice Black, carried public policy to a
new boundary in applying the antitrust laws to the insurance industry
where, prior to that decision, they had not been thought to apply. The
proposition was admittedly novel, and the Court suggested that if it
had misread congressional intent as to the law's otherwise pervasive
application, the Congress should reverse that interpretation. In the
same manner, the Court some twenty years later agreed with the
Antitrust Division in its first attempt to bring the banking industry
under the antitrust laws. No one, the tale goes, was more surpised
than the Justice Department that this novel application was accepted.
Perhaps an even clearer case in point is FTC v. Dean Foods Co!'
There the Court not only agreed to a novel procedure on the part of
the Federal Trade Commission, paralleling, up to that point, the
extension of the antitrust laws just mentioned, but agreed to such a
procedure in face of the fact that Congress had had very recent
opportunity to sanction the procedure and had declined to do so. In
question was the FTC's right to ask the court of appeals for a
temporary restraining order and temporary injunction against two
corporations in order to prevent their merger until the Commission
could determine whether or not it would be permissible under the law.
The court of appeals entered the temporary restraining order, but
upon hearing the FTC's presentation in connection with the
application for the preliminary injunction, it dismissed the petition,
holding that "the Commission did not have authority to institute this
proceeding in this court . . . ."I' The appeals court's reason for
turning down the Commission's petition was apparently controlled by
the fact that:
in the 84th Congress and 89th Congress bills sponsored by the said
Commission were introduced, which bills if enacted into law would have
conferred upon the Commission such authority as it is attempting to
75. 322 U.S. 533 (1944).
76. 384 U.S. 597 (1966).
77. Id. at 600.
1969]
ACTIVISM, RESTRAINT AND INTERPLAY
exercise in the case now before this court, but that said measures were
not enacted into law and Congress has not provided otherwise for
bestowing this authority upon said Commission.7
Examples cited above of the Court's posture toward its own
precedents would suggest that in the absence of congressional action,
particularly when such action was specifically requested, the Court
would favor the status quo. Here, however, the Court, speaking
through Justice Clark, refused to accept the concept that
congressional silence on legislative proposals meant either congressional endorsement or disavowel.
Congress neither enacted nor rejected these proposals; it simply did not
act on them .
. .
. We cannot infer from the fact that Congress took no
action at all on the request of the Commission to grant it or a district
court power to enjoin a merger that Congress thereby expressed an intent
to circumscribe traditional judicial remedies. 79
II.
REEXAMINING JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT
The combination of the Court's willingness, on the one hand, to
sanction and thus to place its favorable imprint upon extensions and
novel applications of statutory policy, and, on the other hand, its
reluctance to defer to alleged congressional correction of Court
interpretation of policy, would seem to confirm the suspicion of those
who charge the Court with legislating judicially.
A.
The Court and Policy Making: A Selective Approach
In fact, the pattern of Court reaction to the opportunities presented
to it for making its mark on policy is sufficiently uncertain that it
may be doubted whether the Court has a single view of what its role
in the establishment of public policy should be, and when it should be
exercised. For example, although it is true that the Court has often
seemed willing to extend old statutes to novel situations, this is mainly
true in the case of (1) antitrust laws, which have traditionally been
considered as seminal statutes, to be treated as "little constitutions"
and thus interpreted broadly, and (2) conflicting statutes, the gradual
interpretation of which has resulted in the careful construction of a
body of clear precedent giving order to otherwise ambivalent and
unresolved congressional purposes. Further, in other areas, the Court
78. Id., quoting the lower court.
79. 384 U.S. 597, 609-10 (1966).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
has refused to initiate policy extensions by applying the law beyond
the metes and bounds it understands Congress to have set. A case in
point is United Steelworkers v. R. H. Bouligny, Inc.8 The question
raised there was "whether an unincorporated labor union is to be
treated as a citizen for purposes of federal diversity jurisdiction,
without regard to the citizenship of its members." 8' That the Court
should draw back from making a decision as to whether an
unincorporated labor union should be given the same status as a
corporation is, in a way, surprising, for, as Justice Fortas' opinion for
the Court acknowledged, it was the Court that not only originated but
later sophisticated the fiction that a corporation was a "citizen" for
diversity purposes, at least in the incorporating state.82 But in the
interim, "Congress re-entered the lists" and "enacted sharp curbs"
on the concept and practice. In light of this congressional action, the
Court responded, in Chapman v. Barney,1: by instigating other
restrictions, and specifically by making distinctions between "the
'personality' and 'citizenship' of corporations and that of labor
unions and other un-incorporated associations." 8' Such distinctions
have become blurred, and highly ironic, with the passage of time;
"'many voluntary associations and labor unions are indistinguishable
from corporations in terms of the reality of function and structure,
and to say that the latter is a juridical person and a 'citizen' and the
former is not is to base a distinction upon an inadequate and
irrevelant difference. "
Thus the Court found the unions' arguments "appealing," but it
declined to accept them on grounds that contradict the notion of
Court activism in advancing public policy. It concluded:
Whether unincorporated labor unions ought to be assimilated to the
status of corporations for diversity purposes, how such citizenship is to
be determined, and what in any related rules ought to apply, are
decisions which we believe suited to the legislative and not the judicial
branch, regardless of our views as to the intrinsic merits of petitioner's
argument-merits stoutly attested by widespread support for recognition
of labor unions as juridical personalities.0 6
80. 382 U.S. 145 (1965).
81. Id. at 147.
82. Id.
83. Id. at 149; Chapman v. Barney, 129 U.S. 677 (1899).
84. 382 U.S. 145, 149 (1965).
85. Id. at 149-50.
86. Id. at 153.
ACTIVISM. RESTRAINT AND INTERPLA Y
19691
A second caveat must be entered to the implication that the Court's
reliance on, or dismissal of, stare decisis always depends on whether
its own policy preferences would be better served. That is simply the
fact that the Court is not completely consistent in its attitude toward
precedent even when no legislation is in the offing. In Swift & Co. v.
Wickham, 87 the Court overturned a decision it had rendered in 1962
regarding the question of when three-judge courts were required. The
previous decision, Kesler v. Department of Public Saftty, 8 had
provided the rule that such courts were required not only in
supremacy clause cases where state laws are alleged to be in conflict
with provisions of the Federal Constitution, but where state laws are
challenged as being in conflict with federal laws. For a number of
reasons, including "important considerations of judicial
administration,'' 9 a six-man majority, led by Justice Harlan and
including two Justices who had joined in the Kesler opinion, decided
the rule was unworkable, hence decided to overturn it." The Court
acknowledged that "[t]he over-ruling of a six-to-two decision of such
recent vintage . . . the opinion in support of which was written by an
acknowledged expert in the field of federal jurisdiction," demanded
"full explication of our reasons."'" But believing such reasons to be
sound, the Court said, "considerations of stare decisis should not
9' 2
deter us from this course.
Unless inexorably commanded by statute, a procedural principle of this
importance should not be kept on the books in the name of stare decisis
once it is proved to be unworkable in practice."
Justice Douglas vehemently objected. And though he agreed that
"stare decisis is no immutable principle," 94 he would let the Congress
change the rule.
The Court has decided, on no more than the gloomy predictions
contained in a handful of law review articles, that Kesler would
inevitably produce chaos in the federal courts, that the rule announced
there is "unworkable." Those predictions have plainly not been borne
out. If difficulties arise, Congress can cure them. Until Congress acts, I
would let Kesler stand. 5
87.
88.
89.
90.
382 U.S. III (1965).
369 U.S. 153 (1962); Kesler was Justice Frankfurter's last opinion for the Court.
382 U.S. III, 128 (1965).
Id.
91. Id. at 116.
92. Id.
93. Id.
94. Id. at 133.
95. Id. at 135.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
The Court, he charged, was not only not giving "our previous
interpretation of the statute a 'respectful burial,' " but indeed "has
engaged in unwarranted infanticide.""6
Nor is it always recent decisions that the Court, without any special
legislative prompting, sometimes willingly overturns. In James v.
United States,"7 the Court decided that the distinction it had drawn
between embezzlement and extortion, for tax purposes, back in 1946,
and which had been law ever since, was not so sound after all. So it
eliminated the distinction and changed the meaning of the law in a
single stroke. Justice Black, whose early record on the Court was not
marked by his enthusiasm for the rule of stare decisis, here thought
the Court's treatment of the rule bordered on the cavalier. "Of
course," he said, "the rule of stare decisis is not and should not be an
inexorable one. This is particularly true with reference to
constitutional decisions involving determinations beyond the power of
Congress to change, but Congress can and does change statutory
interpretations. It is proper and right that it should do so when it
believes that this Court's interpretation of a statute embodies a policy
that Congress is against." 8 In short: "The Wilcox" case was decided
fifteen years ago. Congress has met every year since then."'"0
B.
The Court and Policy Making: A Matter of Personal Proclivity?
The Supreme Court is an institution with a constitutionally
assigned function and a corporate history. It is also nine judges. Do
we err in suggesting that the Court as a Court has a preferred
approach to stare decisis, a preferred concept of its right role in policy
shaping; but that the Court as a Court is not entirely consistent in its
treatment of its own preferred approaches and concepts? Is it, instead,
a matter of alliances in cases, with the activists and the judicially
restrained struggling for the swing votes, and the side that wins
determining whether the Court will positively or only passively affect
public policy?
It is safe to say that some members of the Court are less fearful of
writing their own preferences into the law than others. But it is glib to
suggest that this or that justice is a categorical activist, or that others
96. Id. at 133.
97. 366 U.S. 213 (1961).
98. Id. at 233-34.
99. Wilcox v. Commissioner, 148 F.2d 933 (1945).
100. 366 U.S. 213, 230 (1961).
1969)
ACTIVISM, RESTRAINT AND INTERPLA Y
always view the Court's prerogatives in interpreting policy as being
rigidly limited.
Justice Harlan, joined by Justices Black and Stewart, may have
thought that Justice Douglas was motivated more by his long and
keen interest in the preservation of natural resources than by respect
for the law as written when he wrote for the Court in United States v.
Standard Oil.'"' Douglas and the majority held that the corporation
could be penalized under a criminal statute because, in accidentally
emptying commercially valuable aviation gasoline into the St. John's
River, it had violated the Rivers and Harbors Act by polluting the
river with "refuse." Douglas explained his approach toward the law
and the particular case:
This case comes to us at a time in the Nation's history when there is
greater concern than ever over pollution-one of the main threats to our
freeflowing rivers and to our lakes as well. The crisis we face in this
respect would not of course warrant us in manufacturing offenses where
Congress has not acted nor in stretching statutory language in a criminal
field to meet strange conditions. But whatever may be said of strict
construction, it cannot provide a substitute for common sense, precedent
and legislative history. We cannot construe Sec. 13 of the Rivers and
Harbors Act in a vacuum. Nor can we read it as Baron Parke would
read a pleading12
Said the minority:
It is of course true, as-the Court observes, that "oil is oil" .
and that
the accidental spillage of valuable oil may have substantially the same
"deleterious effect on waterways" as the wholesale depositing of waste
oil. But the relevant inquiry is not the admittedly important concerns of
pollution control but Congress' purpose in enacting this anti-obstruction
Act, and that appears quite plainly to be a desire to halt through the
imposition of criminal penalties the depositing of obstructing refuse
matter in rivers and harbors. . . .Thus [under the Court's definition]
dropping anything but pure water into a river would appear to be a
federal misdemeanor. 1W
Justice Douglas took comfort in the fact that the Court's
interpretation of the Rivers and Harbors Act was "in keeping with
the teaching of Mr. Justice Holmes that 'a river is more than an
amenity, it is a treasure.' "104 Justice Harlan thought another of
101. 384 U.S. 224 (1966).
102. Id. at 225-26.
103. Id. at 233-34 (dissenting opinion of Harlan, J.).
104. Id. at 230, quoting New Jersey v. New York, 283 U.S. 336, 342 (1931).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
Holmes' sayings was more pertinent: "Although it is not likely that a
criminal will carefully consider the text of the law before he murders
or steals, it is reasonable that a fair warning should be given to the
5
world in language that the common world will understand."'
In short, the minority said: Let Congress make the policy
definitions. Yet Justice Douglas himself took such a posture in
Swift"' (on the matter of stare decisis) and joined the Court's similar
posture in Tellier'7 (regarding the definition of tax deductions) and
Bouligny' 8s (as to whether unincorporated unions were "persons").
And when, in State Farm Fire & Casualty Co. v. Tashire,°' of April
1967, the Court led by Justice Fortas extended "interpleader benefits"
to insurance companies for the first time since the most recent
legislative action in the field- 1948-on the grounds of "considerations
of judicial administration" as well as because "the language of the
present statute, which is remedial, [is] to be liberally construed,"' 1 it
was Justice Douglas whose solitary dissent implied that the Court was
inventing policy: "Congress could of course confer such a benefit [of
interpleader rights]. But it is not for this Court to grant dispensations
from the effects of the statutory scheme which Congress- has
erected.""'
In a May, 1966 tax case, Justice White thought the Court went too
far in determining what constitutes a "reasonable allowance for
depreciation," that responsibility, he said, was one that "Congress
gave to the Secretary of the Treasury or his delegate, not to this
Court ....
112 But in a March, 1966 labor law case, White was
annoyed that the majority failed to accept what he saw as the Court's
clear responsibility to help shape public policy in the area:
There is . . .ito sound basis for saying that Congress by its silence on
the limitations matter intended the state laws to apply or for adopting
diverse state laws simply because of a reluctance to supply what
Congress omitted. The Courts are expected to develop the law of labor
contracts, and this case represents only another task in that process.,"
105. 384 U.S. 244, 236 (1966), quoting McBoyle v. United States, 283 U.S. 25, 27 (1931).
106. Swift & Co. v.Wickham, 382 U.S. III, 129 (1965).
107. Commissioner v.Tellier, 383 U.S. 687 (1966).
108. Steelworkers v. R. H. Bouligny, Inc., 382 U.S. 145 (1965).
109. 386 U.S. 523 (1967).
110. Id. at 533.
III. Id. at 541.
112. Fribourg Nay. Co. v.Commissioner, 383 U.S. 272, 300 (1966).
113. Auto Workers v.Hoosier Corp., 383 U.S. 696, 710 (1966).
1969]
ACTIVISM, RESTRAINT AND INTERPLA Y
Justice Stewart blasted the Court majority, and particularly Justice
Black, for not deciding Jackson v. Lykes "on its own facts under the
law as it was clearly written by Congress."''
But he thought the
Court was giving up too much judicial authority for too little reason
when it decided that "Congress intended . . . the Lanham Act to
mark the boundaries of the power [of courts] to award monetary
relief in cases arising under the Act.""' Chief Justice Warren held
that "[a] judicially created compensatory remedy in addition to
express statutory remedies is inappropriate in this context." ' Stewart
replied: "The failure to amend the statute to do away with this
judicial power speaks as loudly for its recognition as the failure to
pass the bills referred to by the Court speaks for the contrary
conclusion."" 7
The cases referred to are, as has been stated, in different categories,
and it is only fair to suggest that the Justices mentioned (and their
brethren too) might be found to take more consistent views of how far
the Courts should go in actively shaping policy or in deferring to
Congress, if their positions in this regard were measured only in cases
in the same field. This, indeed, is part of the point. And it explains
why the Court's "activism" or "restraint" must be related to
particular areas of the law, rather than generally to "the law," if it is
to have any meaning at all.
Still, not even the most thoughtful student of the Court, the most
precise analyst of its actions can predict with total certainty either
Court decisions or the positions of any of its members on hypothetical
cases in given areas of the law. Nor could such predictions accurately
be forecast by a computor if every relevant scrap of information
about personality, philosophy, precedent or past performance were fed
into it. First of all, the "population sample" would be too small.
Equally important, even if the Justices' judicial philosophies were
comprehensive and well integrated, the cases which come before them
for deciding, while real, are "concrete" only in epigrams. The infinte
variety of facts and fictions-actual and legal, relevant and
irrelevant-of which law cases are made would probably reduce a
computer to a gibbering hunk of nuts and tapes. Only lawyers are
uninhibited by the labyrinth of possibly-but-not-necessarily
distinguishable factors, and only judges see, through the maze, where
114.
115.
116.
117.
386 U.S. 731, 736 (1967).
Fleischmann Distilling Corp. v. Maier Co., 386 U.S. 714, 721 (1967).
Id.
Id. at 723.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
the Law necessarily leads. And the Supreme Court is, after all, more
than nine judges; it is nine lawyers as well. That fact alone renders
prediction hazardous. In addition, of course, the Court is nine human
beings, and human beings change their minds.
In any event, the early questions persist. What is the Court's
general view of its role in the process of establishing of public policy?
Does the Court interpret, hence shape the meaning of, statutes
according to its own preferences?
The bank merger cases provide some enlightenment. In the 1963
Philadelphia bank case,"" the Court, to repeat, applied the antitrust
laws to the banking industry for the first time. It did so not only in
the absence of precedent and in the absence of clear statutory
language permitting such application, but in face of other statutes
operating in the premises and in face of an apparently predominant
view within the Governmdnt that the Justice Departfnent did not have
authority to -bring suits against bank mergers under antitrust. On the
other hand, the clearest tradition in judicial treatment of antitrust is
that exemptions "are not lightly implied.""' 9 Specifically: "Repeals of
the antitrust laws by implication from a regulatory statute are
strongly disfavored, and have only been found in cases of plain
repugnancy between the antitrust and regulatory provisions.""'2
Subsequent to the Philadelphia case, the Congress passed the Bank
Merger Amendments which, at least in the eyes of its Senate
sponsors, granted some relief from bank merger prosecutions. Even
while new anti-merger suits were in progress, the Chairman of the
Senate Banking Committee recounted, on the floor of the Senate, his
version of the history and the intent of the Bank Merger Amendments
of 1966:
In my judgment the Congress, in the exercise of its constitutional duty
to legislate, has expressed its decision clearly and decisively. The
majority of the House Banking and Currency Committee and the
majority of the House, and the majority of the Senate Banking
Committee and the majority of the Senate, have decided that they do not
want the general rules of the antitrust laws to apply to bank
mergers-they want bank mergers to be decided under, and controlled
by, special standards designed for this regulated industry, under which
consideration must be given both to competitive factors and to the
convenience and the needs of those who are to be served; they do not
118. United States v. Philadelphia Nat. Bank, 374 U.S. 321 (1963).
119. California v. FPC, 369 U.S. 482, 485 (1962)_
120. United States v. Philadelphia Nat. Bank, 374 U.S. 321 (1963).
1969]
ACTIVISM. RESTRAINT AND INTERPLA Y
want the competitive factors to be controlling; on the contrary, they
want the banking agencies ahd the courts to approve mergers, even
though competition will be substantially reduced, if the convenience and
needs of the community to be served clearly outweigh the loss of
competition . 2
Yet the Justice Department brought new suits, claiming that the rules
of the game had not been changed drastically, and the Court agreed.
That Justice Douglas would couch the Court's position in such terms
as to deny judicial perversity in the face of attempted Congressional
remedy is natural. Certainly the Court would not admit that it refused
to defer to Congress. In questions such as this, the key to the truth is
not necessarily found in the language of the decision. What is more
telling in the Houston bank decision is that Justices Harlan and
Stewart,'2 2 both deeply offended, if not outraged at the majority's
extension of antitrust to banking in the first instance, here agreed (by
making Douglas' opinion unanimous) that, indeed, the recent
legislation had not over-ridden all previous procedures. All members
of the Court were agreed that, although the 1966 Amendments
provided "a new defense or justification to the merger's
proponents-'that the anticompetitive effects of the proposed merger
are clearly outweighed . . . [by] . . . the convenience and needs of the
community to be served,' 123 banks (1) were still subject to the
antitrust laws and (2) "the offsetting community 'needs and
conveniences'
.
. .
must be pleaded and proved by the defenders of
the merger."''
If this situation is indicative, it suggests an answer to the question
of the Court's view of its role, vis-a-vis Congress, in interpreting and
shaping public policy.
C. Summing up the Court's Role: Permissiveness, Preference and
Prudence.
In interpreting statutory policy, "[i]nquiry naturally begins with
the language of the Act, and with our reiterated principle that 'the
words of the statutes
. .
.
should be interpreted where possible in their
ordinary everyday senses.' "12
121. 112 CONG.
REC.
But the language of the Act, even when
9634 (1966).
122. United States v. Philadelphia Nat. Bank 374 U.S. 321, 373-97 (1963).
123. United States v. First City Nat. Bank, 386 U.S. 361, 363-64 (1967), quoting 12 U.S.C.
§ 1829(c)(5)(b) (1964).
124. Id. at 364.
125. SEC v. New England Elec., 384 U.S. 176, 188 (1966), quoting Crane v. Commissioners,
331 U.S. l,b(1947).
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[Vol. 18
superficially clear, "can be pregnant with ambiguity when applied to
the facts of life."'' 6 In such cases the intent of Congress must be
sought in the legislative history; still, "Legislative history and purpose
. . . furnish no reason for departing from the natural reading of the
Act.' 2 7 In examining the legislative history, the Court is alert
"against the danger . . . of reliance upon the views of [the statute's]
legislative opponents," because "in their zeal to defeat a bill, they
understandably tend to overstate its reach.'1 28 "It is the sponsors that
we look to when the meaning of the statutory words is in doubt."'2
Sometimes, however, if compromise is reached, each side may claim
"more of a victory than it deserved."''13 If an amendment is proposed,
urgently requested, actively considered, butf not accepted, it may be
that "[t]he rejection of this amendment assumes particular
significance.' 3' Especially is this true when "[iun succeeding years
Congress was repeatedly asked to enact legislation," in an area where
"Over the same extended period of years during which . . .
administrative and judicial precedent was accumulating."' 32 On the
other hand, it might be that "Congress neither enacted nor rejected
these proposals," but "simply did not act on them.' 33 Where
amendments are accepted, the Court must be careful not to extend
their reach beyond that clearly specified, for "in addition to all else,
'the silence of sponsors of Amendments is pregnant with
significance.' "13
Often, the Court's "task is rendered more difficult by the failure of
the Congress to furnish precise guidance in either the language of the
Act or its legislative history."' 35 It may be "left with a legislative
history which, on the precise point at issue, is essentially negative,
which shows with fair conclusiveness only that Congress was not
squarely faced with the problem these cases present.' 36 In such
situations the Court may search the record of Congressional activity
in the same general area or in related areas. For in interpreting one
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
Brenner v. Manson, 383 U.S. 519 (1966).
384 U.S. 176, 188 (1966).
Labor Board v. Fruit Packers, 377 U.S. 58, 66 (1964).
Schwegman Bros. v. Calvert Corp., 341 U.S. 384, 394-95 (1951).
United States v. First City Nat. Bank, 386 U.S. 361, 367 (1967).
FTC v. Borden Co., 383 U.S. 637, 641-42 (1966).
Fribourg Nay. Co. v. Commissioner, 383 U.S. 272, 283 (1966).
FTC v. Dean Food Co., 384 U.S. 597, 609 (1966).
Labor Board v. Fruit Packers, 377 U.S. 58, 66 (1964).
Linn v. Plant Guard Packers, 383 U.S. 53, 58 (1966).
Woodwork Mfrs. v. NLRB, 386 U.S. 612, 649 (1967).
19691
ACTIVISM, RESTRAINT AND INTERPLA Y
law, the Court does not wish to interpret it in such a fashion that it
ends in an "incongruous, absurd or unjust result ' 137 in relation to
another statute.
Such complex situations constitute one reason why the Court finds
itself faced with opportunity for "judicial innovation." It ordinarily
accepts that opportunity where it is clear that it is expected to do so;
for example, the Court "does not question that there are problems so
vital to the implementation of federal labor law that they will
command a high degree of inventiveness from the Courts.' ' 3 What
must not be done, even in such situations, is "to grant dispensations
from the effects of the statutory scheme which Congress has
erected,"'3 9 or to accept any standard of judgment which "would
compel results flatly inconsistent with those Congress explicitly
contemplated. '140
Even where the language of statutes is reasonably clear, and where
the rule of strict construction is preferred, that rule "cannot provide a
substitute for common sense, precedent, and legislative history;"'' for
"that canon 'is not an inexorable command to override common sense
and evident statutory purpose' . . . and-does not 'require that the Act
be given the narrowest meaning.' ,12
As the Court sifts through such uncertainties to find the right mix
for the decision it must inevitably render, there can be little doubt that
the predilections and preferences of the Justices come into play.
Indeed, where Congress only sets the direction in which it wishes
public policy to go, the Court's influence as to the practical effects of
the statute may dominate. Whether it does dominate in particular areas
of law is, no doubt, a question that will be answered differently by
persons of differing views. The essential point is that the Court seems
to accept more readily a role in policy making where it has been
specifically invited by Congress to do so, or where precedent requires
it, than where policy-making opportunities are presented to it by
default. Once having made its contribution, however, the Court is
inclined to stick by its version of what the policy means.
One may wonder if the Court's perspective is in clear focus, or its
137. Jackson v. Lykes Bros. S.S. Co., 386 U.S. 731, 735 (1967).
138. Auto Workers v. Hoosier Corp., 383 U.S. 696, 701 (1966).
139. State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 541 (1967).
140. Idaho Metal Workers v. Wirtz, 383 U.S. 190, 201 (1966).
141. United States v. Standard Oil Co., 384 U.S. 224, 225 (1966).
142. United States v. Cook, 384 U.S. 257, 262 (1966), quoting United States v. Brown, 333
U.S. 18, 25 (1948).
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[Vol. 18
motive pure, on every occasion it takes a stand and then asks the
Congress to correct any errors of interpretation of legislative purpose.
Justice Douglas, in dissenting in Swift, said: "An error in interpreting
a federal statute may be easily remedied. If this Court has failed to
perceive the intention of Congress, or has interpreted a statute in such
a manner as to thwart the legislative purpose, Congress may change
it."'' 3 Chief Justice Warren said in Amell, in deciding that the Tucker
Act took precedence over the Admiralty Act: "If we are here
misconstruing the intent of Congress, it can easily set the matter to
rest by explicit language."' 4 4 True, the Congress can correct Court
errors, but it is not an easy process, as the Court must know. The
legislative mill grinds away slowly. Further, unless there is unanimity
of opinion on the subject matter (an achievement as difficult, though
apparently no more so, for the 535-man Congress as for the nine-man
Court) the mere fact that the Court has taken a stand may boost the
position of those in Congress who agree with that stand.
But if the Court's suggestion that Congress may easily set judicial
errors straight is based, as it sometimes seems to be, on an overly
modest view of its own powers and an exaggerated view of
congressional will, it is not by any means a cynical taunt. Congress
has, in fact, not infrequently responded to Court decisions with
corrective legislation (especially in the tax field), and the Court has
accepted such correction with grace. For example, not happy with the
Court's interpretation in the Church case'45 of how estate taxes were
to be applied, the Congress redefined the law within a year after the
decision. And in the Fribourg case' mentioned earlier, though the
Court stuck to its interpretation of the Internal Revenue Code as to
the treatment of sales of depreciated property until the Congress
reacted, and refused to admit its interpretation was wrong
"retroactively," it of course accepted the clearer intent of Congress,
spelled out in the 1962 Amendments, as unquestionable law.
What seems clear-and clearly recognized by both bodies-is that
if the plain legislative intent is plainly distorted by a zealous Court,
the reaction of a proud Congress will be plainer still. It is with this
understanding that the Court proceeds, where it deems it appropriate,
to make, or to shape, or at least to refine, public policy.
143.
144.
145.
146.
Swift Co. v. Wickham, 382 U.S. III, 133-34 (1965).
Amell v. United States, 384 U.S. 158, 166 (1966).
Commissioner v. Estate of Church, 335 U.S. 632 (1949).
Fribourg Nay. Co. v. Commissioner, 383 U.S. 272 (1966).