THE SUPREME COURT: Ends a Busy Term, Draws a Heavy Fire

Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem: how to apply to ever-changing conditions the never-changing principles of freedom.

—Chief justice Earl Warren in FORTUNE (1955)

Earl Warren has gained weight since he left California. His hair is whiter, softer and fluffier, and a benign fullness has smoothed from his face all the small pinches of arrogance that led California political rivals to dub him the Earl of Warren. He loves the Supreme Court, presides over its sessions, both public and private, with easy skill. The eight Associate Justices love Warren, and under his influence work together as rarely before. But by last week, when Warren and his colleagues put their robes in mothballs after one of the busiest terms in history, the U.S. Supreme Court was under its heaviest fire in a decade. The charges: that in steering the law between rigidity and formlessness, Chief Justice Earl Warren has plotted a deliberate course to the left, with far more emphasis on ever-changing conditions than on never-changing principles.

A Nagging Sense

Behind much of the criticism lies the resentment of Southern lawyers and laymen over the desegregation decision and the rulings that implemented it. But all the concern is not Southern: many thoughtful observers who are devoutly on the side of desegregation are nagged by a feeling that the decision, as written by Warren, smacked more of a sociological treatise than a legal document. They believe they see the same signs in other principal Supreme Court opinions of the last term. Items:

¶In tossing out the conviction of Pennsylvania Communist Leader Steve Nelson, the Supreme Court held that the Smith Act of 1940 pre-empted the antisedition laws passed by the states, and that that was the intent of Congress. But Virginia's Democratic Representative Howard Smith, author of the Smith Act, said flatly that Congress had no intention of writing off the state sedition laws. The Smith Act comes under Title 18 of the Criminal Code, which also provides that "nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof."

¶The Supreme Court ordered Brooklyn College to reinstate Professor Harry Slochower, who had been a prickly, evasive, smart-aleck witness as he pleaded the Fifth Amendment before the Senate Internal Security Subcommittee. The court ruling invalidated a New York City charter requirement for automatic dismissal of any city employee taking the Fifth. Justice John Marshall Harlan, dissenting, wrote that the court majority had "unduly circumscribed the power of the state to insure the qualifications of its teachers."

¶States' Righters were alarmed and angered by a Supreme Court decision holding that the Railway Labor Act overrode state right-to-work laws in the case of railroad employees.