Page 409 U. S. 829
but with respect to which I assisted in drafting the brief, and
in
S & E Contractors v. United States, 406 U. S.
1 (1972), in which I had only an advisory role which
terminated immediately prior to the commencement of the litigation,
I disqualified myself. Since I did not have even an advisory role
in the conduct of the case of
Laird v. Tatum, the
application of such a role would not require or authorize
disqualification here.
This leaves remaining the socalled discretionary portion of the
section, requiring disqualification where the judge
"is so related to or connected with any party or his attorney as
to render it improper, in his opinion, for him to sit on the trial,
appeal, or other proceeding therein."
The interpretation and application of this section by the
various Justices who have sat on this Court seem to have varied
widely. The leading commentator on the subject is John P. Frank,
whose two articles, Disqualification of Judges, 56 Yale Law Journal
605 (1947), and Disqualification of Judges: In Support of the Bayh
Bill, 35 Law and Contemporary Problems 43 (1970), contain the
principal commentary on the subject. For a Justice of this Court
who has come from the Justice Department, Mr. Frank explains
disqualification practices as follows:
"Other relationships between the Court and the Department of
Justice, however, might well be different. The Department's problem
is special because it is the largest law office in the world and
has cases by the hundreds of thousands and lawyers by the
thousands. For the most part, the relationship of the Attorney
General to most of those matters is purely formal. As between the
Assistant Attorneys General for the various departmental divisions
there is almost no connection."
Frank,
supra, 35 Law & Contemporary Problems at
47.
Indeed, different Justices who have come from the Department of
Justice have treated the same or very
Page 409 U. S. 830
similar situations differently. In
Schneiderman v. United
States, 320 U. S. 118
(1943), a case brought and tried during the time Mr. Justice Murphy
was Attorney General, but defended on appeal during the time that
Mr. Justice Jackson was Attorney General, the latter disqualified
himself but the former did not. 320 U.S. at
320 U. S.
207.
I have no hesitation in concluding that my total lack of
connection while in the Department of Justice with the defense of
the case of
Laird v. Tatum does not suggest discretionary
disqualification here because of my previous relationship with the
Justice Department.
However, respondents also contend that I should disqualify
myself because I have previously expressed in public an
understanding of the law on the question of the constitutionality
of governmental surveillance. While no provision of the statute
sets out such a provision for disqualification in so many words, it
could conceivably be embraced within the general language of the
discretionary clause. Such a contention raises rather squarely the
question of whether a member of this Court, who prior to his taking
that office has expressed a public view as to what the law is or
ought to be should later sit as a judge in a case raising that
particular question. The present disqualification statute applying
to Justices of the Supreme Court has been on the books only since
1948, but its predecessor, applying by its terms only to district
court judges, was enacted in 1911. Chief Justice Stone, testifying
before the Judiciary Committee in 1943, stated:
@And it has always seemed to the Court that when a district
judge could not sit in a case because of his previous association
with it, or a circuit court of appeals judge, it was our manifest
duty to take the same position.
Hearings Before Committee on the Judiciary on H.R. 2808, 78th
Cong., 1st Sess.
Page 409 U. S. 831
(1943), quoted in Frank,
supra, 56 Yale Law Journal at
612.
My impression is that none of the former Justices of this Court
since 1911 have followed a practice of disqualifying themselves in
cases involving points of law with respect to which they had
expressed an opinion or formulated policy prior to ascending to the
bench.
Mr. Justice Black, while in the Senate, was one of the principal
authors of the Fair Labor Standards Act; indeed, it is cited in the
1970 edition of the United States Code as the "BlackConnery Fair
Labor Standards Act." Not only did he introduce one of the early
versions of the Act, but as Chairman of the Senate Labor and
Education Committee, he presided over lengthy hearings on the
subject of the bill and presented the favorable report of that
Committee to the Senate.
See S.Rep. No. 884, 75th Cong.,
1st Sess. (1937). Nonetheless, he sat in the case which upheld the
constitutionality of that Act,
United States v. Darby,
312 U. S. 100
(1941), and in later cases construing it, including
Jewel Ridge
Coal Corp. v. Local 6167, UMW, 325 U.
S. 161 (1945). In the latter case, a petition for
rehearing requested that he disqualify himself because one of his
former law partners argued the case, and Justices Jackson and
Frankfurter may be said to have implicitly criticized him for
failing to do so. [
Footnote 3]
But to my knowledge, his Senate role with respect to the Act was
never a source of criticism for his participation in the above
cases.
Justice Frankfurter had, prior to coming to this Court, written
extensively in the field of labor law. "The Labor Injunction" which
he and Nathan Green coauthored was considered a classical critique
of the abuses by the federal
Page 409 U. S. 832
courts of their equitable jurisdiction in the area of labor
relations. Professor Sanford H. Kadish has stated:
"The book was in no sense a disinterested inquiry. Its authors'
commitment to the judgment that the labor injunction should be
neutralized as a legal weapon against unions gives the book its
energy and direction. It is, then, a brief, even a 'downright
brief' as a critical reviewer would have it."
Kadish, Labor and the Law, in Felix Frankfurter The Judge 165
(W. Mendelson ed. 1964).
Justice Frankfurter had not only publicly expressed his views,
but had when a law professor played an important, perhaps dominant,
part in the drafting of the NorrisLaGuardia Act, 47 Stat. 70, 29
U.S.C. §§ 101-115. This Act was designed by its proponents to
correct the abusive use by the federal courts of their injunctive
powers in labor disputes. Yet in addition to sitting in one of the
leading cases interpreting the scope of the Act,
United States
v. Hutcheson, 312 U. S. 219
(1941), Justice Frankfurter wrote the Court's opinion.
Justice Jackson, in
McGrath v. Kristensen, 340 U.
S. 162 (1950), participated in a case raising exactly
the same issue which he had decided as Attorney General (in a way
opposite to that in which the Court decided it). 340 U.S. at
340 U. S. 176.
Mr. Frank notes that Chief Justice Vinson, who had been active in
drafting and preparing tax legislation while a member of the House
of Representatives, never hesitated to sit in cases involving that
legislation when he was Chief Justice.
Two years before he was appointed Chief Justice of this Court,
Charles Evans Hughes wrote a book entitled "The Supreme Court of
the United States" (Columbia University Press, 1928). In a chapter
entitled "Liberty, Property, and Social Justice," he discussed at
some length the doctrine expounded in the case of
Adkins v.
Children's Hospital, 261 U. S. 525
(1922). I think that one
Page 409 U. S. 833
would be warranted in saying that he implied some reservations
about the holding of that case.
See pp. 205, 209-211. Nine
years later, Chief Justice Hughes authored the Court's opinion in
West Coast Hotel Co. v. Parrish, 300 U.
S. 379 (1937), in which a closely divided Court
overruled
Adkins. I have never heard any suggestion that
because of his discussion of the subject in his book, he should
have recused himself.
Mr. Frank summarizes his view of Supreme Court practice as to
disqualification in the following words:
"In short, Supreme Court Justices disqualify when they have a
dollar interest; when they are related to a party and more
recently, when they are related to counsel; and when the particular
matter was in one of their former law offices during their
association or, when in the government, they dealt with the precise
matter and particularly with the precise case; otherwise, generally
no."
Frank,
supra, 35 Law & Contemporary Problems at
50.
Not only is the sort of public statement disqualification upon
which respondents rely not covered by the terms of the applicable
statute, then, but it does not appear to me to be supported by the
practice of previous Justices of this Court. Since there is little
controlling authority on the subject, and since, under the existing
practice of the Court, disqualification has been a matter of
individual decision, I suppose that one who felt very strongly that
public statement disqualification is a highly desirable thing might
find a way to read it into the discretionary portion of the statute
by implication. I find little to commend the concept on its merits,
however, and I am therefore not disposed to construe the statutory
language to embrace it.
I do not doubt that a litigant in the position of respondents
would much prefer to argue his case before
Page 409 U. S. 834
a Court none of whose members had expressed the views that I
expressed about the relationship between surveillance and First
Amendment rights while serving as an Assistant Attorney General. I
would think it likewise true that counsel for Darby would have
preferred not to have to argue before Mr. Justice Black; that
counsel for Kristensen would have preferred not to argue before Mr.
Justice Jackson; [
Footnote 4]
that counsel for the United States would have preferred not to
argue before Mr. Justice Frankfurter; and that counsel for West
Coast Hotel Co. would have preferred a Court which did not include
Chief Justice Hughes.
The Term of this Court just past bears eloquent witness to the
fact that the Justices of this Court, each seeking to resolve close
and difficult questions of constitutional interpretation, do not
reach identical results. The differences must be at least in some
part due to differing jurisprudential or philosophical
propensities.
Mr. Justice Douglas' statement about federal district judges in
his dissenting opinion in
Chandler v. Judicial Council,
398 U. S. 74,
398 U. S. 137
(1970), strikes me as being equally true of the Justices of this
Court:
"Judges are not fungible; they cover the constitutional
spectrum; and a particular judge's emphasis may make a world of
difference when it comes to rulings on evidence, the temper of the
courtroom, the tolerance for a proffered defense, and the like.
Lawyers recognize this when they talk about 'shopping' for a judge;
senators recognize this when they are asked to give their 'advice
and consent' to judicial appointments; laymen recognize this
Page 409 U. S. 835
when they appraise the quality and image of the judiciary in
their own community.'"
Since most Justices come to this bench no earlier than their
middle years, it would be unusual if they had not by that time
formulated at least some tentative notions which would influence
them in their interpretation of the sweeping clauses of the
Constitution and their interaction with one another. It would be
not merely unusual, but extraordinary, if they had not at least
given opinions as to constitutional issues in their previous legal
careers. Proof that a Justice's mind at the time he joined the
Court was a complete
tabula rasa in the area of
constitutional adjudication would be evidence of lack of
qualification, not lack of bias.
Yet whether these opinions have become at all widely known may
depend entirely on happenstance. With respect to those who come
here directly from private life, such comments or opinions may
never have been publicly uttered. But it would be unusual if those
coming from policymaking divisions in the Executive Branch, from
the Senate or House of Representatives, or from positions in state
government had not divulged at least some hint of their general
approach to public affairs, if not as to particular issues of law.
Indeed, the clearest case of all is that of a Justice who comes to
this Court from a lower court and has, while sitting as a judge of
the lower court, had occasion to pass on an issue which later comes
before this Court. No more compelling example could be found of a
situation in which a Justice had previously committed himself. Yet
it is not and could not rationally be suggested that, so long as
the cases be different, a Justice of this Court should disqualify
himself for that reason.
See, e.g., the opinion of Mr.
Justice Harlan, joining in
Lewis v. Manufacturers National
Bank, 364 U. S. 603,
364 U. S. 610
(1961). Indeed, there is weighty authority for this proposition
even when the cases are
Page 409 U. S. 836
the same. Justice Holmes, after his appointment to this Court,
sat in several cases which reviewed decisions of the Supreme
Judicial Court of Massachusetts rendered, with his participation
while he was Chief Justice of that court.
See Worcester v.
Worcester Consolidated Street R. Co., 196 U.
S. 539 (1905),
reviewing 182 Mass. 49;
Dunbar v. Dunbar, 190 U. S. 340
(1903),
reviewing 180 Mass. 170 (1901);
Glidden v.
Harrington, 189 U. S. 255
(1903),
reviewing 179 Mass. 486 (1901); and
Williams
v. Parker, 188 U. S. 491
(1903),
reviewing 174 Mass. 476 (1899).
Mr. Frank sums the matter up this way:
"Supreme Court Justices are strong minded men, and on the
general subject matters which come before them, they do have
propensities; the course of decision cannot be accounted for in any
other way."
Frank,
supra, 35 Law & Contemporary Problems at
48.
The fact that some aspect of these propensities may have been
publicly articulated prior to coming to this Court cannot, in my
opinion, be regarded as anything more than a random circumstance
which should not by itself form a basis for disqualification.
[
Footnote 5]
Based upon the foregoing analysis, I conclude that the
applicable statute does not warrant my disqualification in this
case. Having so said, I would certainly concede that fair minded
judges might disagree about the matter. If all doubts were to be
resolved in favor of disqualification, it may be that I should
disqualify myself
Page 409 U. S. 837
simply because I do regard the question as a fairly debatable
one, even though upon analysis I would resolve it in favor of
sitting.
Here again, one's course of action may well depend upon the view
he takes of the process of disqualification. Those federal courts
of appeals which have considered the matter have unanimously
concluded that a federal judge has a duty to sit where not
disqualified which is equally as strong as the duty to not sit
where disqualified.
Edwards v. United States, 334 F.2d
360, 362 (CA5 1964);
Tynan v. United States, 126
U.S.App.D.C. 206, 376 F.2d 761 (1967);
In re Union Leader
Corporation, 292 F.2d 381 (CA1 1961);
Wolfson v.
Palmieri, 396 F.2d 121 (CA2 1968); Simmons v. United States,
302 F.2d 71 (CA3 1962);
United States v. Hoffa, 382 F.2d
856 (CA6 1967);
Tucker v. Kerner, 186 F.2d 79 (CA7 1950);
Walker v. Bishop, 408 F.2d 1378 (CA8 1969). These cases
dealt with disqualification on the part of judges of the district
courts and of the courts of appeals. I think that the policy in
favor of the "equal duty" concept is even stronger in the case of a
Justice of the Supreme Court of the United States. There is no way
of substituting Justices on this Court as one judge may be
substituted for another in the district courts. There is no higher
court of appeal which may review an equally divided decision of
this Court and thereby establish the law for our jurisdiction.
See, e.g., Tinker v. Des Moines etc. School District,
D.C., 258 F. Supp. 1971,
affirmed by an equally divided
court, 383 F.2d 988 (CA8 1967),
certiorari granted and
judgment reversed, 393 U. S. 393 U.S.
503 (1969). While it can seldom be predicted with confidence at the
time that a Justice addresses himself to the issue of
disqualification whether or not the Court in a particular case will
be closely divided, the disqualification of one Justice of this
Court raises the possibility of an affirmance of the judgment below
by an
Page 409 U. S. 838
equally divided Court. The consequence attending such a result
is, of course, that the principle of law presented by the case is
left unsettled. The undesirability of such a disposition is
obviously not a reason for refusing to disqualify oneself where in
fact one deems himself disqualified, but I believe it is a reason
for not "bending over backwards" in order to deem one's self
disqualified.
The prospect of affirmance by an equally divided Court,
unsatisfactory enough in a single case, presents even more serious
problems where companion cases reaching opposite results are heard
together here. During the six months in which I have sat as a
Justice of this Court, there were at least three such instances.
[
Footnote 6] Since one of the
stated reasons for granting certiorari is to resolve a conflict
among other federal courts or state courts, the frequency of such
instance is not surprising. Yet affirmance of each of such
conflicting results by an equally divided Court would lay down "one
rule in Athens and another rule in Rome" with a vengeance. And
since the notion of "public statement" disqualification which I
understand respondents to advance appears to have no ascertainable
time limit, it is questionable when or if such an unsettled state
of the law could be resolved.
The oath prescribed by 28 U.S.C. § 453 which is taken by each
person upon becoming a member of the federal judiciary requires
that he "administer justice without respect to persons, and do
equal right to the poor and to the rich," that he "faithfully and
impartially discharge and perform all the duties incumbent upon
(him) . . . agreeably to the Constitution and laws of the United
States." Every litigant is entitled to have his case heard by a
judge mindful of this oath. But neither the oath, the
disqualification statute, nor the
Page 409 U. S. 839
practice of the former Justices of this Court guarantee a
litigant that each judge will start off from dead center in his
willingness or ability to reconcile the opposing arguments of
counsel with his understanding of the Constitution and the law.
That being the case, it is not a ground for disqualification that a
judge has prior, to his nomination, expressed his then
understanding of the meaning of some particular provision of the
Constitution.
Based on the foregoing considerations, I conclude that
respondents' motion that I disqualify myself in this case should
be, and it hereby is denied. [
Footnote 7]
Motion denied.
[
Footnote 1]
In a motion of this kind, there is not apt to be anything akin
to the "record" which supplies the factual basis for adjudication
in most litigated matters. The judge will presumably know more
about the factual background of his involvement in matters which
form the basis of the motion than do the movants, but with the
passage of any time at all, his recollection will fade except to
the extent it is refreshed by transcripts such as those available
here. If the motion before me turned only on disputed factual
inferences, no purpose would be served by my detailing my own
recollection of the relevant facts. Since, however, the main thrust
of respondents' motion is based on what seems to me an incorrect
interpretation of the applicable statute, I believe that this is
the exceptional case where an opinion is warranted.
[
Footnote 2]
See Executive Report No. 91-92, 91st Cong., 1st Sess.,
Nomination of Clement F. Haynsworth, Jr., pp. 10-11.
[
Footnote 3]
See denial of petition for rehearing in
Jewel Ridge
Coal Corp. v. Local 6167, UMW, 325 U.
S. 897 (1945) (Jackson, J., concurring).
[
Footnote 4]
The fact that Mr. Justice Jackson reversed his earlier opinion
after sitting in
Kristensen does not seem to me to bear on
the disqualification issue. A judge will usually be required to
make any decision as to disqualification before reaching any
determination as to how he will vote if he does sit.
[
Footnote 5]
In terms of propriety, rather than disqualification, I would
distinguish quite sharply between a public statement made prior to
nomination for the bench, on the one hand, and a public statement
made by a nominee to the bench. For the latter to express any but
the most general observation about the law would suggest that, in
order to obtain favorable consideration of his nomination, he
deliberately was announcing in advance, without benefit of judicial
oath, briefs, or argument, how he would decide a particular
question that might come before him as a judge.
[
Footnote 6]
Branzburg v. Hayes, 408 U. S. 665
(1972),
In re Pappas, and
United States v.
Caldwell, 408 U. S. 665.
Gelbard v. United States and United States v. Egan,
408 U. S. 41
(1972).
EvansvilleVanderburgh Airport Authority District v.
Delta Airlines Inc., 405 U. S. 726
(1972), and
Northeast Airlines Inc. v. New Hampshire
Aeronautics Commission, 405 U. S. 707
(1972).
[
Footnote 7]
Petitioners in
Gravel v. United States, 408 U.
S. 606 (1972), have filed a petition for rehearing which
asserts as one of the grounds that I should have disqualified
myself in that case. Because respondents' motion in
Laird
was addressed to me, and because it seemed to me to be seriously
and responsibly urged, I have dealt with my reasons for denying it
at some length. Because I believe that the petition for rehearing
in
Gravel, insofar as it deals with disqualification,
possesses none of these characteristics, there is no occasion for
me to treat it in a similar manner. Since such motions have in the
past been treated by the Court as being addressed to the individual
Justice involved, however, I do venture the observation that in my
opinion, the petition, insofar as it relates to disqualification,
verges on the frivolous. While my peripheral advisory role in
New York Times Co. v. United States, 403 U.
S. 713 (1971), would have warranted disqualification had
I been on the Court when that case was heard, it could not
conceivably warrant disqualification in
Gravel, a
different case raising entirely different constitutional
issues.