◆ SpookStack

- cases. And I came along with a simi- mM fe time deciding ordinery tax cases. In- deed, I will even go so far as to say * * -—~—faution Abandoned LF, Having paid my respects"fo a num- ber of those who have recently en-. gaged in criticisms of the Supreme! Court, it is only appropriate that I,‘ too, should now throw caution to the™ winds, and join their ranks. The Supreme Court in our system has unique responsibilities. Its duties. are truly awesome. ... The Court,! and each of its members, have far too’ much to do, and have to work far too). hard and too fast, esnecially in view! of the great complexity and impor- tance of the issues that come before it..., To an extent to which I think the bar is largely unaware, the Su- preme Court is now oppressed by mere volume and complexity of its business. So I would first propose that the organized bar establish committees to review the volume of the Court’s work, and, in cooperation with the Court, to devise ways and means to reduce this, so that the Court may have ample time to consider and weigh the tremendous questions which come before it. One area where something could be done, for example, is with respect to ordinary tax cases, It is now some twenty years ago since... Roger Traynor proposed that there should a ne a.) Yom. 2 We a SPeCial COMIL UL appedl in LaaA lar proposal a few years later. These suggestions were strongly disap- proved by practicing lawyers. Yet the fact remains that the Supreme Court ‘in a federal nation of 185,000,000 per- sons ought not to kave to spend its ; { that the Supreme Court, hard pressed for time as it is, does not do a very good job in the intricate and special- ized field of federal taxation. For in- stance, I may mention one of its most recent decisions in the field — Flora vy, United States, 8357 U.S. 68 (1958) — where the Court held that a taxpay- er who had paid only part of a tax claimed to be due from him could not maintain a suit to get it back. This leads to the bizarre result that a/ taxpayer who pays everything he has is wholly without remedy if he cannot i hm = BEA pay the whole tax assessed. This re- sult was reached in the teeth of the language of the statute, and on the nala afi a atatamoant af nvantivea urhich Vai Ul SUGVCINCELL Vk PPL CA PTE aae is demonstrably wrong. I venture the thought that this was a result which would not have been reached if the court had had more time for the con- sideration of the case, But, as things are, tax cases inevitably have a low | priorit g@ all the cases u- Dreme Court has to decide. It would oS hl , some of the statements in the opin- ‘jons, which were not really necessary a ~~ one, be ip interest of all concerned to . eine Court=from | could be tried and convicted in New find a way to relieve the having to decide these cases, and many other — non-constitutional — cases in the general area of adminis- trative law. Too Broad Grounds As I have reviewed the decisions of the Court in recent vears, there are not many of the results reached, it seems to me, which are really objec- tionable on what might be called sound professional grounds. But in an unfortunate number of the cases, in my view, the opinions proceed on too broad groutids, it. is these Jersey of robbery after he had been acquitted of robbing three other per- sons on the same occasion. Note that this was an appeal from a State court, and that New Jersey had held that such a second trial was consistent with its law. The only question was whether this viclated the Fourteenth Amendment’s prohibition against an, action contrary to “due process of Jaw.” In this case, the Chief Justice filed a dissenting opinion. He felt that “the conviction of this petitioner has been obtained by use of a procedure inconsistent with the diie process re- quirements of the Fourteenth Amend- ment.” But he never tells us why. Tc me there is more of yearning than of law in this opinion. Perhaps it is hi: long experience as Governor which leads the Chief Justice to approack problems in some cases in terms ol generalities and without sharp focus elu Lb, ko bilo grounds, rather than the actual points decided, which have caused some of the trouble. This is an area where perhaps the Chief Justice can have an esnecial influence. Take, for example, the Watkins case — Watkins v. United States, 354 U. §. 178 (1957) — where the Court (See OVERWORK on page fou) j (Continued from page three) reversed a conviction for contempt Congress and talked in rather broad terms about the powers of Congress in this field. Or the Sweezy case — Sweezy v. New Hampshire, 354 U. 8. 234 (1957) — which was decided at the same time. The latter case has been the subject of an intemperate attack by the Attorney General of New Hampshire, though he was los- ing counsel in the case and might better have been more restrained. The former case has occasioned, a good deal of complaint in Congress. Look- ing as a lawyer at the facts of these cases, and what was decided, I cannot believe that they are truly objection- able, But both opinions contain broad statements, which might better, I think, have been carefully guarded and trimmed away. Most of the re- action comes from the breadth of Interstate Commerce Finally, there is one important area where I have long found myself 1~ sharp disagreement with a majorit of the Court. In the field of interstat pass a workmen’s compensation ac ployers’ Liability Act, which base over a series of years, the Court ha: largely transformed this statute int a workmen’s compensation act, wit commerce, Congress has refused t but has instead left in force the En Hability on negligence and fault. Ye by one extreme decision after anothe unlimited liability. Justices Black an Douglas have been the leaders in th movement. Closely related to this hz been the substantial elimination o any effective judicial restraint in ci | jury trials, so that state courts a repeatedly required to allow juri to find verdicts on an amount of e' dence which can hardly be called scintilla. I am sorry that the Chi Justice has followed along in the cases, Indeed, these cases ought n to be before the Supreme Court at That the Court has brought the there through certiorari only e hances my criticism in this fie Speaking in purely professtor terms, without any reflection on tive, this is one area where the Cou to the decisions themselves, Another ease to which I would refer is Hoag v. New Jersey, 356 U. 8. 464, decided last May. Here the ma- jority of the Court held that_a person | | has, to me, yielded unduly to i “activists,” and thus caused itself 1 fo arm,