YALE DAILY NEWS

New Haven , Conn. , April 28, 1970

A Trip to the Supremes

By John Ritter

“Oyez. Oyez. Oyez! The honorable, the Supreme Court of the United States is now in Session.” When the crier’s words opened the Supreme court on Monday morning, April 20, eighteen Yale law students stood while the justices entered the courtroom. All members of Professor Fred Rodell’s seminar on the Supreme Court Today, the group was in Washington for a day of observing arguments and meeting with the justices.

The first thing one notices as the eight justices file in and sit down is their age. They are old men. White hair contrasts sharply with the black robes and the red velvet tapestry behind them. Their average age is 65, ranging from Justices Stewart and White, 53, `to Black at 84.

But the legal problems before the Court this Monday were predominantly problems of young people. The first opinion read from the bench involved the conviction in Baltimore of six antiwar protesters for disorderly conduct. The court unanimously reversed the conviction in an opinion by Justice Brennan.

First of the two cases argued was an appeal from a conviction of a 22-year-old California boy for selling marijuana. The only witness had stated previous to trial that the defendant sold him marijuana. At the trial the witness testified that he had taken LSD twenty minutes before the alleged sale and could not really say who had sold him the marijuana. The California Supreme Court had reversed the conviction on the ground that the defendant was denied a right to confront the witness at the time of his statement implicating the defendant. The case was in the Supreme Court on an appeal by the State of California

Summarily Denied

The second case argued was that of a 23-year-old boy who had refused draft induction, been convicted, and sentenced to five years in jail and a fine of $10,000.00. His draft board had revoked a previously granted deferment for employment as a poverty rights organizer in Appalachia. His subsequent request for a conscientious objector classification was summarily denied by the board without even reopening his classification. He was mailed a draft notice but refused induction. His appeal to the Supreme Court was persuasively argued. The government’s position that the draft board had no duty to open the registrant’s classification and give him a hearing was weak to start with. In addition, the solicitor general’s tactic of using a young attorney to argue the case backfired because he was remarkably unpersuasive. When Justice Marshall asked him how to justify the draft board’s ten-minute review as its sole hearing on the boy’s CO claim, all he could do was stammer. The best point he made was when Chief Justice Burger, his true colors showing, asked him if he could characterize the boy as “sincere but confused.” The eager reply to this irrelevant question was “yes.”

After the last argument, Rodell, students, their wives, husbands, and friends spent the remainder of the afternoon in freewheeling question and answer sessions with Justices Black, Marshall and White.

Justice Douglas, a former Yale law professor, was scheduled to meet with the group but cancelled at the last minute-apparently as part of a policy against all outside engagements while Congress threatened to investigate him.

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Justice Black was easily the most popular Justice. The law students came prepared with questions to make Black admit that his absolutist constitutional philosophy is not as simple as he makes it sound. Black disarmed them with his gentlemanly manner and relaxed sense of humor. After the first questions, like a Baptist preacher with his Bible, Black pulled out his slim paperback copy of the Constitution and let them know that if it was not spelled out in the book it did not get his vote.

The questions ranged widely. Asked if he still thought he did the right thing in Korematsu, where he voted for relocation of Japanese Americans in wartime detention centers, he said he still stuck by it. Well known for his extremely liberal views of free speech, Black was asked what his position was on symbolic speech such as draft-card burning. He replied that the Constitution only protected speech and the government should be able to punish conduct. On the late Justice Frankfurter, Black said that although he disagreed with him on almost everything, he had great respect for his mind and integrity. On whether or not Chief Justices actually lead the Court, Black said they only lead him when he agrees with them. Asked how many copies of the Constitution he wears out a year, Black replied he does not know but that the Court buys them by the dozen for him.

Justice Thurgood Marshall fielded questions with the ease one would expect of such an experienced advocate, and mixed his replies

with numerous personal anecdotes. Asked what he thought of the current judicial ethics crusade, he said he is troubled by the absurd principle being advanced that a judge should not participate in a decision involving a company in which he owns even a small amount of stock. Although he owns almost no stocks, Marshall said he owns United States government savings bonds while participating daily in cases involving the government. Marshall was asked why many young blacks refuse to look up to him as a leader of their cause. His reply was that he proves the invalidity of their claim that a black man cannot make it in America. He added that when black students confront him - as they often do - with the charge that he is just a tool of the Establishment, he tells them they had better wake up to the fact that “I am the Establishment.”

Justice Byron White made it very clear that none of the legal realism of Yale Law School ever rubbed off on him when he was a student here. A devotee of the Frankfurter-Bickel brand of legal philosophy, White had one theme - - judicial restraint. He was asked whether he thought the Supreme Court should hear a case involving the constitutionality of the Vietnam War, such as will be raised by the recent statute enacted in Massachusetts. He suggested that courts are not equipped to handle such questions. Asked whether stare decisis would cause him to follow a decision like Miranda v. Arizona from which he dissented, White replied that he still thinks Miranda is bad law and will continue to dissent from any cases following it.

The trip to Washington is an annual tradition begun by Rodell in the 1930's as the highlight of his spring seminar, the Supreme Court Today.

This year only one justice asked a question about the Law School. After explaining his basic philosophy that he finds nothing in the Constitution giving a judge the right to call a law unconstitutional just because it shocks his conscience, Justice Black asked: “Yall don’t learn that up at Yale do you?”

Well that all depends on whether you learn from Professor Bickel or Professor Rodell.