The Judges or the Congress?

In three related cases, the nine Justices of the U.S. Supreme Court last week wrote twelve separate opinions, split with a fundamental bitterness unknown since 1946, when Justice Robert Jackson began feuding in public with Justice Hugo Black. As it happened, last week's cases had to do with the right of the U.S. to deprive native-born Americans of their citizenship for such acts as desertion or voting in the elections of a foreign country. But in their sum and substance, the Supreme Court's unvarnished differences went to a far more basic point: the power of the judicial branch of government to overrule the judgment of the legislative branch.

The issue was most clearly drawn in the case of Ohio-born Private Albert L. Trop, who escaped from an Army stockade in French Morocco in 1944, went over the hill, was picked up the next day, convicted of desertion and sent out with a dishonorable discharge. In 1952 he applied for a passport and was refused on grounds, clearly supported by a congressional act, that his desertion had cost him his citizenship. Chief Justice Earl Warren wrote the majority opinion, with Justices Hugo Black, William O. Douglas and Charles Evans Whittaker joining. William Brennan concurred. Felix Frankfurter, Harold Burton, Tom Clark and John Marshall Harlan dissented. The upshot: 5 to 4 in favor of citizenship for Trop.

Wrote Warren for the majority: "The judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence." Added Warren: "In some Si instances since this court was established, it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case."

In the dissent, Justice Frankfurter said that to uphold the expatriation act "is to respect the actions of the two branches of our Government directly responsive to the will of the people and empowered under the Constitution to determine the wisdom of legislation. The awesome power of this court to invalidate such legislation, because in practice it is bounded only by our own prudence in discerning the limits of the court's constitutional function, must be exercised with the utmost restraint." He took special exception to Earl Warren's citing of the 81 times the Supreme Court has declared acts of Congress unconstitutional. That, said Felix Frankfurter, ad-libbing in his opinion, was not much to boast about--especially since a good many of those decisions had later been reversed by the court itself.

This file is automatically generated by a robot program, so reader's discretion is required.