Direction Disputed

In November 1955, Earl Warren, longtime governor of California and new Chief Justice of the U.S., was remarkably candid in specifying his hopes for the direction of U.S. justice over the next quarter-century. Satisfied that "the more cynical forms of 'legal realism' are growing less fashionable," Warren declared for a credo of legal idealism. "It is the spirit and not the form of law that keeps justice alive," he wrote in FORTUNE. "The beginning of justice is the capacity to generalize and make objective one's private sense of wrong." Earl Warren's Supreme Court has followed his direction--and by last week it had provoked serious questions: Is the Warren court showing too much idealism and not enough realism? Too much spirit and not enough form? Too much generalization and not enough reliance on the specifics of law?

The new criticism of the Supreme Court came to a boil over two decisions (see below), both written by new Justice William J. Brennan and handed down last week. In holding that the Du Pont Co.'s ownership of 23% of the stock of General Motors constitutes an illegal monopoly, the Supreme Court stretched the Clayton Antitrust Act so far that even Government trustbusters gasped. In ordering that specific FBI reports be turned directly over to the defense in a new trial for Unionist Clinton Jencks, who had been convicted of falsely swearing that he was not a Communist, the Supreme Court happily surprised the defense and shocked the Government.

The Road-Pickers. In the Du Pont and Jencks cases, many a legal observer could agree with the aims of the Supreme Court's legal idealism while regretting that it was not more firmly anchored in legal realism. For example, such critics, with no particular brief for Du Pont, nonetheless thought that the majority decision had taken a highly selective, hotly debatable set of facts and used them to extend a law dealing with stock "acquisitions" so that it applied to a "reasonable probability" existing 30 years later. And such observers, even while agreeing that Jencks had a case for challenging the fairness of his trial, nonetheless felt that the Supreme Court majority had ignored the specific issues placed before it (e.g.: Should a trial judge be required to screen FBI reports for use as evidence?) to reach for a chance to lay down a sweeping rule of law.

In a sense, the Jencks-Du Pont cases fell into the pattern set by the Supreme Court in its school-desegregation decisions. There, many friends of desegregation were pained in their belief that the court relied on sociology texts instead of lawbooks and the Constitution of the U.S., believed the same points could have been more firmly made through purely legal reasoning.

The Liberals. After last week's decisions the Christian Science Monitor headlined across three columns: SUPREME COURT PICKS ROAD OF LIBERALISM, and it seemed clearly apparent that the new court was following Earl Warren's signposts. This was the newest turn in as fast-moving a 20 years as the court has ever known--and some Washingtonians believed that it had taken the court farther leftward than at any time since Franklin Roosevelt's day. Roosevelt's most liberal court was built (from 1943 to 1946) around Justices Hugo Black, William Douglas, Frank Murphy and Wiley Rutledge. Chief Justice Fred Vinson edged President Harry Truman's Supreme Court back onto conservative paths. Replacing Vinson (deceased). Earl Warren joined with Old Liberals Black and Douglas to walk hand in hand in the direction of liberalism, and the bloc has been strengthened by Eisenhower-appointed Democrat Brennan. Justices Tom Clark, John Marshall Harlan or Felix Frankfurter go along with the solid, four-member liberal bloc often enough to make it a majority. Truman-appointed Republican Harold Burton has been virtually isolated as the court's only case-to-case conservative.

The newest member of the Supreme Court, Republican Charles Evans Whittaker, has not yet been around long enough to become identified with any group. (The arguments in both the Du Pont and Jencks cases had started before Whittaker joined the court.) But it is in Whittaker that the Supreme Court may find its spokesman for legal realism as against Warren's legal idealism. Asked about his attitudes of legal interpretation, Whittaker set out a signpost of his own: "I read the law only for an understanding of its meaning, and apply and enforce it in accordance with my understanding of its meaning." This doctrine of legal realism points to the responsibility to carry out U.S. law as it is, not as it ought to be under the precepts of liberalism or conservatism or any other political philosophy.

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