A Majority of One

The Supreme Court is composed of nine lawyers, and it is the nature of lawyers to disagree with one another. But as last week's pair of 5-4 decisions involving domestic Communists indicated, the present nine lawyers are in unusually deep-seated disagreement (except in segregation cases, on which they are almost invariably for integration). During the current session, notably in cases involving national security as balanced against individual rights, four have generally stood on one side, four on the other, and the man who made the majority was the newest, youngest of them all. The groupings:

The Restrainers. When he mulls over a difficult decision in the Supreme Court, Justice Felix Frankfurter often likes to consider the words of one of his heroes, Oliver Wendell Holmes. "About 75 years ago," Holmes once said, "I learned that I was not God. And so when the people want to do something I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, 'Goddamit, let 'em do it.' "

Heeding Holmes, Felix Frankfurter has time and again supported the will of the people--as that will is expressed in acts passed by the U.S. Congress and the state legislatures. Doing so, he has become the leader of a bloc of four Justices who believe in "judicial restraint"--meaning that the court should support the valid acts of Congress or other governing bodies, even when the Justices personally, politically or philosophically disagree with them. The other three in the Frankfurter group are Tom C. Clark, Charles E. Whittaker and John Marshall Harlan.

The Activists. In sharp opposition is another bloc of four Justices, who hold that the court should strike down laws that in any way interfere with civil liberties, even when those liberties collide with governmental prerogatives as also provided by the Constitution.

These "judicial activists" are Chief Justice Earl Warren, Justices William O. Douglas, William Brennan and Hugo Black, who, at 75, is their patriarch. Their often-cited guide is the First Amendment, which they hold is clear and absolute: "Congress shall make no law" abridging the freedoms of speech, religion, press and peaceable assembly.

The Swing Man. The split is sharpest in cases involving Communists. The Black-Warren wing usually supports the constitutional rights of the individual, while the Frankfurter group upholds the will of the community, i.e., the laws passed by Congress in the interest of national security. Swinging between those two groups and casting the decisive vote --as he did on last week's 5-to-4 decisions curbing the Communists--is the newest Justice, Potter Stewart, 46. Says one of Washington's top trial lawyers: "You go up to argue before the court now, and you just talk to Stewart. You forget about the other Justices."

So far this session, the court has split on 25 key cases of individual rights v. Government responsibilities. Not counting the cases in which they did not participate, Frankfurter and Harlan have sided with the Government 17 times, Clark 19 times and Whittaker 22 times. On the other side, Brennan has supported the individual 16 times, Warren 17 times, Black 18 times and Douglas 22 times. Stewart has split almost evenly--12 times for the individual, 13 times for the Government. Last year, the Justices divided their votes in much the same proportion.

All of which means that President Kennedy's first appointment to the court will be a crucial one. The man chosen may decisively alter the balance.

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