SUPREME COURT OPINIONS: The Stone Court (1941 - 1946)


OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.

1942 Valentine v. Chrestensen, 316 U.S. 52

Justice Owen J. Roberts
OOOIn a very brief opinion, Justice Roberts asserted the Court's opinion that commercial speech does not enjoy the same First and Fourteenth Amendment protections as does political, protest or informational speech.
OOOChrestensen, owner of a submarine, was restrained by New York police from passing out handbills in the street advertising public tours of his craft, in violation of a city ordinance forbidding distribution of commercial and business advertising matter. Subsquently, in order to skirt the ordinance, Chrestensen printed a two-sided handbill, one side advertising his submarine, and the other protesting the ordinance, claiming the Constitutional protection of the "protest speech" for the entire document.
OOOA lower court, uncertain how to divide the constitutional baby, found for Chrestensen. New York, in the person of its Police Commissioner, Valentine, appealed.
OOORoberts disposed of Chrestensen's stratagem and the lower court's uncertainty by simply exposing the obvious ploy for what it was: "If that evasion were successful, every merchant who desires to broadcast advertising leaflets in the streets need only append a civic appeal, or a moral platitude, to achieve immunity from the law's command."
OOOAs for commercial speech, Roberts contrasted private commercial activity with the public's interest in the use of its streets: "This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment. The question is not whether the legislative body may interfere with the harmless pursuit of a lawful business, but whether it must permit such pursuit by what it deems an undesirable invasion of, or interference with, the full and free use of the highways by the people in fulfillment of the public use to which streets are dedicated."

1943 West Virginia State Board of Education v. Barnette, 319 U.S. 624

Justice Robert Jackson, C.J. Stone, J. Douglas, J. Rutledge
Concurrence: Justice Hugo Black
Concurrence: Justice Frank Murphy
Dissent: Justice Felix Frankfurter, J. Roberts, J Reed
OOOWest Virginia involved the objections of a family of Jehovah's Witnesses to the compulsory recitation of the Pledge of Allegiance in public schools. They argued that since their faith forbad the worship of images, and because the flag was such an image, the requirement was an unconstituional breach of their religious freedom. (Bear in mind that in 1943 the words "under God" were not part of the pledge.) Writing for the majority, Jackson overturned the West Virginia law.
OOOJackson first observed that the question before the court did not involve the balancing of rights between individuals, as the Barnette's religious objections diminished no one else's rights. Instead, he wrote: "The sole conflict is between authority and rights of the individual." Such a conflict arises when authority imposes on the individual a belief or a compulsion to declare a belief. About this, Jackson was clear, "There is no doubt that, in connection with the pledges, the flag salute is a form of utterance.", and that it "...requires affirmation of a belief and an attitude of mind." He concluded, "To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind."
OOOJackson wrote that the patriotic content of the required speech was irrelevant. It was the imposition, not the content, that was at issue. Irrelevant, too, were the specifically religious objections of the Jehovah's Witnesses: "While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual." The core issue, for Jackson, was simple: "The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution."
OOOJackson next went on to consider some objections to the ruling. First, that preventing the state from imposing core ideas of patriotism would weaken it he dismissed by pointing out that the prohibition did not weaken government, but quite legitimately limited it: "Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support."
OOOSecond, to the objection that the Court had no business interferring with local school boards, Jackson replied; "The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures - Boards of Education not excepted.", concluding, "...none who acts under color of law is beyond reach of the Constitution."
OOOTo the objection that such things should be left to legislatures and the democratic process, Jackson gave his most pointed rebuke: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
OOOJackson went on to say that while the state may regulate some behavior for a "rational purpose", those rights guaranteed by the First Amendment were too important to be so limited.
OOOJackson allowed that while government may foster national unity by "persuasion and example", it may not coerce a belief in it. History had proven there could be no unanimity in such a project, but only increasing severity in order to stamp out the inevitable dissent. He wrote, "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."
OOOJackson admitted the diffculty of the case, brought on by its bearing on the flag and questions of patriotism. He pointed out, however, that, "...freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." and concluded that, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
OOOFrankfurter's dissent turned on three of the objections addressed by Jackson. First, Frankfurter argued that the promotion of good citiznship was a legitimate legislative end with a "rational purpose" and as such, so long as it did not directly contradict the Constitution, the state was justified in promoting it as it saw fit. Of course, the question was, did it contradict the Constitution? In order to answer that, Frankfurter had to contradict a second of Jackson's opinions: that the question was more than a religious matter.
OOOFrankfurter put the religious objection front and center, writing that the pledge requirement violated neither the free exercise clause nor the establishment clause. (Again, this was prior to the insertion of thewords, "under God" ). Instead, it was a general, non-discriminatory civil regulation, and rewriting it to accommodate the religious objections of a particular group was beyond the power of the court. Further, it was beyond the power of religion: "The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma." and later, " The validity of secular laws cannot be measured by their conformity to religious doctrines. It is only in a theocratic state that ecclesiastical doctrines measure legal right or wrong."
OOOMoreover, Frankfurter wrote, allowing such objections would put the Court in the position of defining what religion was - clearly a violation of the Constitution.
OOOAt its heart, Frankfurter's dissnt was an argument for judicial restraint in the face of legislative action, an argument that diminshed the third of Jackson's arguments: the scope of laws beyond the power of the majority to make. The Court, he argued, was not the unique arbitor of what was or was not constitutional. Legislatures, state or federal, were as constitutionally competent as was the Court, and as fit to judge their own acts. As the final expressions of the popular will - the democratic process - legislatures had to be granted every deference by the Court. He wrote: "No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed." In the end, the process of legislating bound the citizen to the government in debating the great questions of the day, the very foundation of citizenship. An overactive Court only threatened this: "The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people and to deaden its sense of moral responsibility. It is no light thing to do that."

1943 Hirabayashi v. United States, 320 U.S. 81

Chief Justice Harlan F. Stone
Concurrence: Justice William O. Douglas
Concurrence: Justice Frank Murphy
Concurrence: Justice Wiley B. Rutledge
OOOHirabayashi was the first of the notorious cases regulating the movement of Japanese-Americans during World War II.
OOOHirabayashi was arrested, charged with and convicted for two violations of military orders governing the movements of all persons of Japanese ancestry - citizen and non-citizen - on the U.S. West Coast: he had violated a curfew order, and he had failed to report to a Civil Control Station, a preliminary step toward the relocation and internment of Japanese-Americans away from the coast.
OOOHirabayashi challenged his convictions on two grounds: 1) that by allowing military authorities to create and execute the curfew and exclusion laws, Congress had unconstitutionally delegated its war powers, and 2) that even if the delegation of power to the military was constitutional, the singling out of those of Japanese ancestry was a violation of the Fifith Amendment.
OOOIn writing for the Court, Chief Justice Stone took advantage of a legal technicality to focus his opinion on the relatively less inflammable matter of the curfew than the highly combustible issue of internment - which would split the Court the following year in Korematsu. Because Hirabayashi was serving concurrent sentences for his two convictions, Stone reasoned that if he could prove the constitutionality of one of them, there was no need to consider the other.
OOOStone upheld Hirabayashi's curfew conviction by pointing out that both Congress and the President had anticipated and sanctioned the military decisions to both create a military district of the West Coast and to institute a curfew there. The delegation of war powers was constitutional. As to the singling out of ethnic Japanese, Stone recalled the conditions of the times, the recent Japanese attack on Pearl Harbor and their rapid expansion into Asia and the Pacific, the many military installations on the West Coast, legitimate concerns over spying and sabotage and the perceived need for haste in defending against them. All these things made reasonable what in peace time would be odious, the singling out of a particular ethnic group for regulation - and it was within the war powers of Congress and the President to order it. Stone quoted Chief Justice Hughes: ''The war power of the national government is 'the power to wage war successfully', and goes on to write, "The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs."
OOOIn his concurrence, Douglas opined that, under the circumstances of military necessity, the Court was right to strike down Hirabayashi's challenge. The hands of the military should not be tied during national emergency. He concluded, however, that that principle should not exhaust Hirabayashi's rights. What would have been proper was for Hirabayashi to have obeyed the orders, and then demanded a hearing on the matter of his own personal loyalty, not as a sweeping, general challenge to the orders themselves.
OOOMurphy's concurrence is far more guarded than Douglas'. While allowing that the curfew was a reasonable measure for the time, and that it fell within the war powers of the government, Murphy pointed out that, "Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war."Unlike the majority and Justice Douglas, Murphy was unwilling to make the war powers a license for Congress and the President to do whatever they deemed expedient during war: "In voting for affirmance of the judgment I do not wish to be understood as intimating that the military authorities in time of war are subject to no restraints whatsoever, or that they are free to impose any restrictions they may choose on the rights and liberties of individual citizens or groups of citizens in those places which may be designated as 'military areas'. While this Court sits, it has the inescapable duty of seeing that the mandates of the Constitution are obeyed. That duty exists in time of war as well as in time of peace, and in its performance we must not forget that few indeed have been the invasions upon essential liberties which have not been accompanied by pleas of urgent necessity advanced in good faith by responsible men."
OOORutledge's concurrence is a brief restatment of Murphy's.

1944 Korematsu v. United States, 323 U.S. 214

Justice Hugo Black, C.J. Stone, J. Reed, J. Douglas, J. Rutledge
Concurrence: Justice Felix Frankfurter
Dissent: Justice Owen J. Roberts
Dissent: Justice Frank Murphy
Dissent: Justice Robert Jackson
OOOKorematsu is famous as one of the cases touching the internment of Japanese citizens and non-citizens during World War II. Korematsu was convicted of remaining within a restricted miltary district, Military Zone 1, which encompassed the entire west coast of the United States, after he and its entire ethnically Japanese population - citizen and non-citizen - had been ordered to leave it. Korematsu challenged the order, and his conviction for violating it, as being beyond the war power of Congress and the Executive to execute. Black, writing for the court, found for the government and against Korematsu.
OOOBlack based his decision on a recent decision of the Court, Hirabayashi v. United States, which had upheld a military order enforcing a curfew against Japanese-Americans as a reasonable exercise of the government's war power during a time of "imminent danger" to prevent espionage and sabotage. Black, admitted that, while it was true that confining a particular ethnic group to its home for a few hours a day was far less intrusive than banishing them from a whole area of the nation, the underlying principle was the same.
OOOConcurring, Frankfurter wrote that the war powers of Congress and the Executive, invoked in time of war, were as intrinsic to the Constitution as its other requirements, and when so invoked altered constitutional relationships otherwise valid in a time of peace. Essentially, for Frankfurter, war changed everything: "...the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless....If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And, being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts."
OOORoberts' dissent opens aspects of the case the majority had ignored. The military order excluding the Japanse-Americans from the West Coast was followed by one which prohibited their leaving it except through a military Assembly Center or moved to a military Relocation Center, where they would be held indefinately. The clear intent not merely to exclude, but to detain these citizens, changed the entire issue for Roberts. He wrote: "This is not...a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry.... If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated." Roberts reference to "judicial notice" was a reference to Black's opinion which had limited itself to Korematsu's conviction for not leaving Zone 1. Black did not address the issue of internment because, as he reasonably observed, it was not properly before the Court.
OOOWhere Roberts drew the constitutional line between exclusion and internment, Murphy's dissent drew it well ahead of both, fixing its boundaries not on some general "war power" but on demonstrable and imminent danger within the context of declared martial law. He wrote: "The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so "immediate, imminent, and impending" as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger....[B]anishing from a prescribed area of the Pacific Coast "all persons of Japanese ancestry, both alien and non-alien," clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment....In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an "immediate, imminent, and impending" public danger is evident to support this racial restriction, which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law." In so writing, Murphy narrowed the idea of "reasonable exercise", and placed the Court in the position of making judgments which other justices felt were better left to the expertise of the military; though even for Murphy, conditions could hypothetically justify the exclusion order.
OOOJackson's dissent even lays that hypothetical aside. Writing that, while courts are in no position to second-guess military necessity, they must nonetheless never give constitutional sanction to what is clearly unconstitutional. He wrote: "I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy." The basis of his opinion - limned by the trail from Hirabayashi to Korematsu - is compelling: "Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency....But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image."