The motions to affirm are granted and the judgments are
affirmed. 116 F.
and 117 F.
The motions to affirm are granted and the judgments, 116 F.
, 117 F.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
The case illustrates what I fear is a growing practice of the
Court of diluting the Act of Congress which gives us jurisdiction
of appeals. 28 U.S.C. § 1253 et seq.
The Congress carved
out a group of cases, of which this is one, that comes here as of
right and is not dependent, as are petitions for certiorari, on a
vote of four Justices out of nine for an adjudication by the Court
on the merits of the controversy. In recent years, the Court has
more and more dismissed or affirmed appeals, with no
Page 347 U. S. 440
of counsel to make oral argument and without any opinion by the
These appeals should not be added to that growing list.
New York and New Jersey made a Compact, approved by Congress,
for the regulation of employment on the waterfront of New York.
through which the plan is effected is the Waterfront Commission,
composed of one representative of New York and one of New Jersey.
It has charge of the employment of all longshoremen. A
longshoremen's register is established, and no one can be employed
unless he is on the register. The Commission "may in its
discretion" deny an applicant the right to register.
"-- if he has been convicted of treason, murder, manslaughter,
illegal possession of firearms, possessing burglar's instruments,
receiving stolen property, unlawful entry of a building, aiding an
escape from prison, unlawfully possessing or distributing
habit-forming drugs, or"
"-- if he is a Communist or teaches the Communist creed, or"
"-- if in the judgment of the Commission, his presence on the
waterfront would constitute 'a danger to the public peace or
Two main questions are at once suggested.
are the standards by which men are deprived of
the right to work constitutional? This is a new question on which
the Court has never ruled. May a state prescribe standards for
employment that have no relevancy to the competency of the men to
perform the work? Under this Compact, a man who, in a reckless
moment runs over a person in his car and kills him and is
Page 347 U. S. 441
of manslaughter, apparently stands disqualified for employment.
So does a Communist, whether he be of the cloak and dagger variety
or a paler type. Are those criteria constitutional? An individual
who is deprived of employment for such a reason could raise the
question. But, if the standard itself has no relevancy to the
competency of men to do the work, why may not the Compact be tested
at the very threshold?
This is a substantial question which our cases do not answer. We
write here on a slate that is fairly clean, except for remote
are these provisions of the Compact which
disqualify men from employment unconstitutional as a bill of
attainder? A few years ago, Congress struck certain federal
employees from the payroll because Congress thought they were
"subversives." We held that that disqualification for employment
without a judicial trial was a bill of attainder, and therefore
unconstitutional. United States v. Lovett, 328 U.
. Here the State legislatures, with the approval
of Congress, have not done precisely that. But they have come close
to it by defining a proscribed class and barring them from
employment -- again without a judicial trial. Cf. Garner v. Los
Angeles Board, 341 U. S. 716
Perhaps a way could be found to sustain all the challenged
provisions of the Compact. Perhaps they could be so construed as to
save any and all individual rights. But the motion to dismiss or
affirm (26 pages long) and the reply to it (51 pages long) in No.
557 only stir these profound questions, and do not put them at
The right to work -- which goes to the very heart of our way of
life -- is at stake in these appeals. If we conclude that the
Compact is constitutional, we should give our reasons, so that all
interests will be protected. Congress expected as much in all but
frivolous cases coming here by appeal.
McKinney's N.Y.Unconsolidated Laws (Cum.Pamph.
Jan. 1954), § 6700 -- aa et seq.;
N.J.Stat.Ann. § 32:23-1
67 Stat. 541.