Justice Frank Murphy: A Reexamination

Margaret H. Potts

Frank Murphy served as an Associate Justice of the Supreme Court of the United States from February 5, 1940, until his death on July 19, 1949. During those nine years he wrote 219 opinions while serving with three Chief Justices. He made speeches supporting Roosevelt and the War, and joined the Army Reserve as a Lt. Colonel. To those who disapproved of his jurisprudence, Murphy became known as a soft-hearted libertarian. To those who admired him, Murphy became the "conscience of the Court."[1] One of the few men whose public reputation was damaged rather than enhanced through his elevation to the high court, Justice Murphy died nearly penniless, and leaving a total estate worth less than $2,000 and a bill to the residential hotel in Washington where he lived of nearly $1,000.[2]

Although commentary on Murphy's performance as a justice has not been extensive, it has been contradictory.[3] Almost every justice has his critics, but even Murphy's supporters and admirers felt called upon to justify Justice Murphy's approach to his work on the Court. Was Murphy a judge so lacking in intellectual capacity that he became virtually dependent upon his young law clerks for the production of his opinions?[4] Was he a justice whose "jurisprudence took for its guide less the cases, legislative histories, and statutory refinements which are usually the lawyer's tools, and more the Constitution itself and the social principles of President Roosevelt?[5] Was the criticism levelled against him accurate, that he "mounted the wild horse of natural law and mercilessly rode down those institutions, traditions, legal precedents, which stood between him and his destination–a democratic utopia?"[6]

One observer, John P. Frank, found that the "evidence rejects the suggestion that (Murphy) could not have been a conventional lawyer if he had chosen. His opinions were generally well-written, and some achieve greatness whether measured in terms of legal skill displayed or in terms of any other values."[7] Yet even Frank accepted the conclusion that Justice Murphy was an unconventional jurist. Rejecting the charge that Murphy "knew no law" and merely read his own personal predilections into his decisions, and that Murphy "seemed to reach fairly happy results even though he lacked proper concern for legal techniques," Frank concluded that although Murphy's decisions might not always have reflected the prevailing conventional wisdom, they were based upon a well-considered philosophical position and not merely on personal whim: "the application of that philosophy may on occasion have been defective . . . but these episodes are rare, for his philosophy guided him in a remarkably consistent course."[8] Frank, at least, was convinced that Murphy's jurisprudence reflected a philosophy "sufficiently deeply worked out to Murphy's own satisfaction to withstand criticism."[9]

If Justice Murphy's apparant disregard for the traditional niceties of legal craftsmanship can be explained as the result of a personal but entirely conscious decision to use a different judicial approach, why has his reputation as something of a renegade persisted? Is that reputation the consequence of his legal approach and emotional language of his opinions, or is there more to the complaint that he was "unconventional?"

Several factors may have contributed to the image of Murphy as an unorthodox jurist. His tendency to employ in his opinions a direct style uncommon to judicial decision writing certainly furthered this judgment about Murphy. That such a style may not have been considered standard or appropriate for a Supreme Court justice is illustrated by the following excerpt from an article published in the Harvard Law Review shortly after Murphy's death:

Another perceived shortcoming may have been Murphy's insistence on dealing directly with what he considered the central issue facing the Court, and his reluctance to avoid delicate problems by following circuitous legal arguments even when such tactful trails led to the "right" results. His tendency to focus upon a single controlling issue was frequently attributed

to a lack of intellectual capacity.[11] At least one writer saw Murphy's habit of going directly to the larger constitutional issue as a natural consequence of his view of the Holmesian tradition. Holmes, though a great advocate of judicial restraint, incorporated in his philosophy a seemingly inconsistent principle which demanded careful inspection of any statute which impinged upon individual liberties.[12] This principle was strongly supported by Murphy

Additionally, his "forthright concern over the humanistic aspects of a case led inevitably to the charge that he deliberately championed the cause of the underdog, the unpopular and the accused."[12a] From 1946 to 1948, Murphy voted against claims of constitutionally protected individual liberties only three times in 56 non-unanimous cases.[13] It would be unfair, however, to judge the merit of Murphy's judicial method simply on the basis of the results he reached. The consistent application of a well-considered judicial philosophy should not necessarily be taken as an indictment of a Supreme Court justice. Any legitimate charge levelled against Murphy's jurisprudence must stand or fall upon a detailed examination of the process Murphy employed in reaching his conclusions.

If Justice Murphy's critics are correct, if he did in fact look "upon hallowed judicial traditions as a drunk views a lamppost: as a means of support rather than a source of light,"[14] a close examination of several of his more emotional concurring opinions should certainly verify the charge, for there is less incentive or necessity for restraint in a concurrence than any other type of opinion. When writing for the majority, a justice is to some extent confined by the views of the other justices who will join in it. A dissenter is also under a certain pressure from his brethren, for the act of opposing the judgment of a majority of his peers creates an obligation to reply to their arguments and their reasoning. Such restraints, even if subtle ones, do not confront a justice when he writes a concurrence. He speaks alone and for himself only Although he may attempt to stretch the majority's holding to cover additional ground, a concurring opinion is of little precedential value. Consequently, a justice is at liberty to express himself freely in these opinions, and one would expect to find the clearest support for the critics' argument in Justice Murphy's concurring opinions.

But such is not the case. An extended analysis of three of Murphy's more significant concurring opinions reveals the care with which he constructed his legal arguments. Of the twenty-one concurring opinions Justice Murphy wrote during his nine years on the Court, his most vehement concerned cases in which he felt the Court had not dealt squarely with alleged violations of protected First Amendment liberties, or cases which involved alleged racial discrimination. Even in these cases, however, Justice Murphy's concern that justice be done did not cause him to abandon established and traditional forms of legal analysis.

Duncan v. Kahanamuka[15] involved habeas corpus petitions brought by two Hawaiians who had been convicted by military tribunals in 1942 and 1944, during which time Hawaii had been under martial law. Imposed by the Governor of Hawaii immediately after the Japanese attack on Pearl Harbor on December 7, 1941, martial law had been approved by President Roosevelt shortly thereafter. The Hawaii Organic Act authorized such action whenever the Islands were faced with rebellion or invasion, or when required to ensure public safety Both petitioners claimed that even under martial law, they were entitled to be tried by the civil courts rather than a military tribunal. Writing for the majority, Justice Black upheld the petitioners' claim, stating that there was no authority under the Act justifying the usurpation of the civil courts' jurisdiction by military tribunals. Neither the language of the Act nor its legislative history convinced Justice Black that the scope of martial law included the power to replace civilian courts. The phrase "martial law" as used in the Act authorized the military to act to maintain an orderly civil government, and to defend the Islands against invasion or rebellion, but it could not be construed as authorizing the military to supplant the civil courts.

Justice Murphy joined the opinion of the Court, but felt obliged to point out that it was obvious "that these trials were equally forbidden by the Bill of Rights of the Constitution of the United States," and as such, deserved the Court's "complete and outright repudiation."[16] His concurring opinion contained numerous examples of the emotional language for which he was so frequently criticized; but it also presented a carefully constructed argument supporting his contention that the "open court" rule laid down in exparte Milligan[17] was controlling. The opinion's colorful language served only to embellish essentially sound and sensible legal analysis, and to emphasize Murphy's adamant rejection of the government's case.

The major proposition presented by the government in defense of its action was that the open court" rule was outdated and unsuited to the conditions of modern warfare. Murphy replied unequivocably:

He then carefully considers and rejects the arguments offered by the government to support that proposition, clearly focusing on the fatal flaw in each. To the assertion that the continued danger of invasion to the Islands necessitated and justified removing jurisdiction from civilian courts to military tribunals, Murphy pointed to the lack of any evidence demonstrating how the continued operation of civilian courts could possibly have increased the danger of such an invasion, adding that "from time immemorial despots have used real or imagined threats to the public welfare as an excuse for needlessly abrogating human rights."[19] The government's next two arguments were rejected for similiar defects: the failure to present any evidence which could support their contentions. The government alleged that the military's efforts to defend the Islands could have been jeopardized by the slowness of the civil courts. With wry sarcasm, Justice Murphy observed that the protection of civil liberties and the concern for military expediency might indeed be irreconcilable, but such a conclusion need not necessarily result in a decision supporting the government's position. Acknowledging that civil court procedures might in fact take somewhat longer to dispose of cases than military proceedings, Murphy argued that

Inherent in the government's next argument was an insult to the civilian judiciary which led Murphy to characterize it as "the ultimate and most vicious of the arguments used to justify military trials."[21] The government alleged that the failure of the civil courts to convict persons charged with violating military orders would diminish the authority and ability of the military to discharge their responsibilities. Murphy countered by pointing to the absence of any proof that the Hawaiian civil courts were either less competent or more prone to release the guilty than military tribunals. He also noted that this particular argument clearly confused the military's legitimate authority to promulgate orders applicable to the civilian population with the lawful authority to try civilians for violations of those orders. He reminded the government of the fundamental constitutional principle of separation of powers, and the important distinctions between legislation and adjudication. Murphy quickly dismissed the government's claim that civilian courts lacked jurisdiction over civilian violators of military orders by citing the appropriate act of Congress vesting authority in the federal courts to enforce military orders with criminal penalties. Murphy then added a slightly sarcastic comment: ''That the military refrained from using the statutory framework which Congress erected affords no constitutional justification for the creation of military tribunals to try such violators. He dealt as directly with the government's final arguments: that it was inconceivable that a military commander, responsible for guaranteeing the defense and safety of Hawaii, should be required to rely upon civilian courts to enforce his orders; that the use of civilian juries might disrupt the "vital work" of the military in protecting the Islands against possible invasion; and finally, that the military could not rely upon the loyalty of civilian jurors. In reply to the first contention, Murphy stated that it was "merely a military criticism of the proposition that in this nation the military is subordinate to the civil authority."[23] To the suggestion that civilian juries might place a strain on the work force, thereby jeopardizing the success of the war effort, Murphy responded by pointing out that workers engaged in war-related activities could certainly have been exempted from jury service. But it was the government's argument concerning the threat of possible jury subversion which elicited Murphy's full fury The lower court had accepted the military's position that jurors of Japanese descent might seek to disrupt the peace of the Islands if provided the opportunity; because citizens of Japanese extraction could not constitutionally be excluded from juries on the basis of their national origin, the lower court had upheld the military trials. Justice Murphy was outraged at such court-sanctioned action, and reacted accordingly:

Noting the total lack of any factual basis for such a claim and the total absence of any recorded acts of sabotage or espionage by persons of Japanese descent in the Hawaiian Islands, Justice Murphy continued:

The complete failure of the government to present any evidence whatsoever to support its claim that Japanese jurors might be less loyal than native American jurors convinced Justice Murphy that racism, and not the national defense, actually provided the true rational for the military's actions. He does not hesitate to make that conclusion known.

Undoubtedly Justice Murphy's style rather than his reasoning leaves the greater impression on the reader. Immediately aware of the blunt, expressive language of Justice Murphy's denunciation of the government's position, he may lose sight of the traditional legal arguments underlying the emotion-filled rhetoric. Without doubt, the opinion is an unrelenting assault on the government's defense of what Murphy considered 'a simple case of blatant racism, but it is also a carefully reasoned argument based on clear legal precedents and established constitutional doctrines.

Two other cases involving racial discrimination against the Japanese on the West Coast reveal a similiar style, and support the conclusion that Justice Murphy relied on more than personal predilections in arriving at his conclusions. Both deal with California statutes challenged by persons of Japanese ancestry as discriminatory and unconstitutional. In both, the majority opinion failed to confront squarely the constitutional question of racial discrimination, resulting in several scathing dissents, and two important concurring opinions from Justice Murphy

Oyama v. California[26] involved a challenge to the constitutionality of California's Alien Land Law, which provided that aliens ineligible for American citizenship were forbidden to acquire, own, lease, or transfer agricultural property in the state. The Act also created a presumption against the validity of any transfer of agricultural land for which the price of the transfer was paid by an ineligible alien. The penalty for violation of the Act was esc heat of the property to the state as of the date of the attempted transfer. Petitioners Fred Oyama and his father, Kajiro Oyama, challenged the statute as a violation of their constitutionally protected guarantee to equal protection of the law. In 1934, when his son was six years of age, the senior Oyama had purchased six acres of agricultural land in southern California which he had deeded to his son. A second parcel was purchased in 1937 by Fred Oyama with the purchase price provided by his father. In 1942, both Oyamas were removed from California as part of the Japanese relocation plan approved by President Roosevelt to assure the safety of the Pacific coast states. In 1944, California petitioned the state court to declare the Oyamas in violation of the Alien Land Law, thereby vesting title to the property in the state as provided by the escheat provision of the Act. The California trial court held that both purchases had been made with intent to violate the Act, and held that the property had escheated to the state as of the dates of the respective transfers.

In an opinion written by Chief Justice Vinson, the Supreme Court invalidated that portion of the Alien Land Law which created a presumption against the validity of certain transfers of agricultural land. In the opinion of the majority, such a presumption violated the equal protection guarantee of the Fourteenth Amendment, as well as a federal statute establishing the right of all citizens to own and hold real property By choosing to reverse the California decision on this ground, the majority avoided the more unpleasant task of passing on the validity of the Alien Land Law itself as applied to ineligible aliens. Two dissenting opinions were filed in Oyama.[27] Each expressed doubt as to the soundness of the majority's reasoning; both questioned the majority's decision to reach a result in the specific case without addressing and resolving the larger underlying constitutional issue. The dissents called the attention of the entire Court and the nation to the evasive nature of the majority opinion, and the importance of the issue which it avoided.

Justice Black and Justice Murphy wrote concurring opinions which expressed their uncomfortable acquiescence in the decision of the Court. Their opinions reveal their need to confront the question of racial discrimination directly Justice Black's opinion stated that he would have preferred the Court to have invalidated the California judgment on the broader ground that the Alien Land Law itself violated the equal protection clause of the Fourteenth Amendment.[28] Justice Murphy essentially concurred with Black's position, but expressed his sentiments in more extreme language. In his opinion, the California statute was "nothing more than an outright racial discrimination."[29] Yet, Murphy's opinion was more than an angry denunciation of the California legislation and lower court decision. Using a traditional tool of legal analysis, he undertook to trace the Land Law's history from its original enactment in 1913 through its re-enactment in 1920 to its application in the 1940's. He found that the California Alien Land Law had been "spawned of the great anti-Oriental virus," which the Justice concluded, had "infected many persons in that state."[30] In outlining the history of Oriental immigration to the West Coast from the mid-1800's to the 1940's, Murphy highlighted the social, economic and political antagonisms which fed the flames of racism:

His examination of public discussion concerning the law prior to its re-enactment in 1920 provided considerable support for his contention that the law primarily reflected racial hatred. The California media had universally depicted the Japanese as "degenerate mongrels" and had urged voters to save California, the "White Man's Paradise," from the "yellow peril." Certain papers even went so far as to claim that the Japanese birth rate was so high that the white majority would be eroded and eventually replaced in the state. Other articles called attention to the meager standard of living of the Japanese, and cautioned voters not to allow these immigrants to endanger the social health of the community.[32] Having effectively established the political environment which supported passage of the Alien Land Law in 1920, Justice Murphy concluded his historical review with the following observation:

As in Duncan, Murphy dealt with each of the numerous arguments presented in support of the Law's constitutionality, rejecting emphatically the notion that they were anything but an obvious attempt to disguise the Law’s patent unconstitutionality In a straightforward manner, he considered and disposed of each claim that the Law created a reasonable classification which could be upheld as valid by the Court. Murphy rejected the argument that all the state had done was to incorporate the language of a federal law establishing who might become a naturalized citizen, stating that California's decision to borrow the federal classification did not exempt it from the obligation of justifying the constitutionality of its use in the California statute. Demonstrating less patience with the claim that eligibility for American citizenship was inherently related to loyal allegiance and the desire to work for the success and welfare of the state, Justice Murphy asserted that loyalty and the desire to work for the welfare of the state were' individual rather than group characteristics:

To the assertion that ineligible aliens might acquire every foot of land in California fit for agriculture, Murphy convincingly relied on statistical data to refute the claim, and to demonstrate the absence of any factual foundation for such an assertion. He cited the fact that less than 0.7 percent of California's agricultural land was held by Japanese-Americans in 1940, making highly unlikely the possibility that a majority of such land would ever be controlled by ineligible aliens. Murphy also relied on statistical evidence to demolish the argument that Japanese aliens might someday "take over" California if not actively discouraged. After presenting a statistically generated profile of the Japanese population in California, which very effectively destroyed any legitimate basis for concern, Murphy concluded:

Murphy's ironic tone continued as he expressed his incredulity that California could actually attempt to justify the Law on the grounds that it was necessary to protect native American farmers:

Having disposed of the major contentions offered in support of the Law's constitutionality, Justice Murphy summed up his opposition to the host of racially motivated innuendos and slurs which characterized California's defense of its discriminatory legislation:

Justice Murphy referred the reader to his dissenting opinion in Korematsu v. United States[38] for a fuller summary of his rejection of the racially motivated charges levelled against the Japanese by residents of the West Coast.

Another case decided during the same term as Oyama presented an issue of racially motivated discrimination. Takahashi v. Fish & Game Commission[39] involved a California statute which forbade the issuance of commercial fishing licenses to aliens ineligible for naturalization. Takahashi, a Japanese alien who had resided in California for nearly forty years, applied for a license in 1945; his application was denied solely on the grounds that he did not qualify for naturalization. He brought suit against the Commission challenging the statute's constitutionality The decision of the Superior Court of Los Angeles holding the statute violative of the equal protection clause of the Fourteenth Amendment was reversed by the California Supreme Court on the theory that the State enjoyed a proprietary interest in ocean fish sufficient to justify such regulation.

The Supreme Court of the United States, in an opinion by Justice Black, held that the statute denied aliens the equal protection of the law as guaranteed by the Fourteenth Amendment of the Constitution. Relying upon the Court's holding in Trauz v. Raich,[40] Justice Black argued that classifications which discriminated could be upheld as constitutionally valid only if shown to be reasonably related to some special state interest. He rejected California's attempt to distinguish its discriminatory classification from the Arizona employment law which had been held unconstitutional in Traux. The Court found it unnecessary to respond to Takahasi's allegation that the California law had been enacted, not to conserve fish, but to antagonize the Japanese aliens who earned their livelihoods as fishermen; the Court refused to pass on the motives which might have prompted the California state legislature, concluding that concern over fish conservation or regulation of commericial fishing activities could have provided sufficient motivation for the legislation under review.

Justice Murphy took a different view, which he expressed characteristically in his concurring opinion. Since "even the most cursory examination of the background of the statute demonstrates that it was designed solely to discriminate against"[40a] Japanese aliens, Murphy was enraged that the issue of racial discrimination could be ignored in the majority's opinion. As in his Oyama concurrence, Justice Murphy pierced the thin facade of legal argument presented in defense of the legislation, exposing to close scrutiny once again the noxious motive of racial hatred lurking just under the surface. Although his method was careful and considered, his language revealed his simmering anger. He pointed to the obvious charade attempted by California in trying to cloak repugnant and unlawful racial discrimination through a legislative act which appeared benign on its face. He called attention to the fact that the legislation under review had originally denied licenses only to Japanese aliens, but had been amended by a committee of the California legislature organized to deal with the Japanese resettlement which was concerned that the statute might be held unconstitutional. The committee's report forthrightly stated that potential legal problems could be eliminated by amending the statute to include all ineligible aliens. Murphy further documented that the revised statute was enacted even though there was an acknowledged need to increase rather than diminish the annual fish catch. Taken together, the facts established convincingly that fish conservation had very little to do with the discriminatory legislation. For Justice Murphy, at least, the evidence was overwhelming and the conclusion clear. The California law denied aliens commercial fishing rights not because they threatened any conservation program, or because their fishing activities presented any danger to the welfare of either state on nation. As Murphy concluded, they had been discriminated against solely because they were of "Japanese stock, a stock which has had the misfortune to arouse antagonism among certain powerful interests."[41]

Conclusion

In the cases discussed above in which Justice Murphy felt it necessary to write a separate concurring opinion, sufficient proof is provided to call into question the allegation that he knew nothing of legal analysis, or did not care. Although the language of his opinions carried unconcealed emotion, the underlying reasoning was generally quite solid. He relied on legal precedent, and looked to legislative history for clarification of legislative purpose.

In Duncan, Murphy employed the principle which lies at the heart of the common law system of jurisprudence: a prior decision controls where the facts of the present care are legally indistinguishable from those of that prior case. He applies that principle with thoroughness, considering with care each factual difference offered by the party seeking to escape application of the prior rule, evaluating each difference in the light of realistic common sense to see if it can be said to be legally significant and distinguishing. That others might reach different conclusions on the significance of those facts in no way undermines the precision of Murphy's analysis. In both Oyama and Takahashi, Justice Murphy used accepted legal techniques to follow the Holmesian mandate of careful consideration of statutes challenged as infringing upon individual liberties.

Given what cannot be considered an unreasonable judicial method, why was Murphy so harshly criticized for his performance as a justice? Without question, Murphy frequently refused to be constrained by the conventional wisdom that the court should avoid constitutional issues if other grounds existed for disposing of the case. Perhaps his failure to acknowledge his deviation from the principle, his flair for language which appealed to emotion as well as logic, his penchant for common-sense arguments, his frank refusal to countenance slight-of- hand legal analysis combined to lead many observers to overlook the careful craftsmanship and thorough analysis which Justice Murphy applied to his work on the Court. Perhaps his failure to acknowledge his many observers to overlook the careful crafts-deviation from that principle, his flair for language which appealed to emotion as well as Murphy applied to his work on the Court.

Endnotes

1. Gressman, Eugene, "The Controversial Image of Mr. Justice Murphy," 47 Geo. L. J. 631, 633-36 (1959); See also J. Woodford Howard, Mr. Justice Murphy (1968) at page 231.
2. Atkinson, D., "Retirement and Death in the United States Supreme Court--from Van Devanter to Douglas," 45 UMKC L. Rev 2, 13 n. 66 (1976); See also Howard, "Justice Murphy: The Freshman Years," 18 Vand. L. Rev. 473 (1965).
3. Additional literature on Justice Murphy includes Sidney Fine's Frank Murphy. The Detroit Years (1975), Harold Norris' Mr. Justice Murphy and the Bill of Rights (1965), C. Herman Prichett's Civil Liberties and the Vinson Court (1954).
4. Kurland, Philip P., "Book Review," 22 U. Chi. L. Rev. 297, 299 (1954).
5. Frank, John P., "Justice Murphy: The Goals Attempted," 59 Yale L. J. 1, 25 (1949).
6. Roche, John, "The Utopian Pilgrimage of Mr. Justice Murphy," 10 Vand. L. R. 396, 394 (1957).
7. Rank, supra note 5, pp. 3-4.
8. Ibid., p. 1.
9. Ibid., p. 4.
10. Arnold, Thurman, "Mr. Justice Murphy," 63 Harv. L. Rev. 289, 293 (1949).
11. "Murphy was not a deep or original social thinker. He was inclined to platitudinize. . . . His clarity definitely outran his death." Jolly, "The Social Philosophy of Frank Murphy," 42 U. Det. L. J. 585, 586 (1965).
12. Barnett, "Mr. Justice Murphy, Civil Liberties and the Holmes Tradition," 32 Cornell L. Q. 177, 317-21 (1946).

12a. Gressman, supra note 1, pp. 641-42.

13. Man, "Mr. Justice Murphy and the Supreme Court," 36 Va. L. Rev. 889, 916 (1950).
14. Roche, supra note 6, p. 396.
15. 327 U.S. 304 (1946).
16. 327 U.S. 304 (1946) Justice Murphy concurring, p. 325.
17. 71 U.S. (4 Wall.) 2 (1866).
18. 327 U.S. 324, 329.
19. Ibid., p. 330.
20. Ibid., p. 331.
21. Ibid.
22. Ibid., p. 332.
23. Ibid.
24. Ibid.; p. 334.
25. Ibid.
26. 332 U.S. 633 (1948).
27. The first was written by Justice Reed, who was joined by Justice Burton. The second was written by Justice Jackson.
28. 332 U.S. 633 (1948), Justice Black concurring, p. 647.
29. 332 U.S. 633 (1948), Justice Murphy concurring, p. 650. Justice Murphy was joined in his opinion by Justice Rutledge.
30. Ibid., p. 651.
31. Ibid., pp. 656-57.
32. Ibid., pp. 658-59.
33. Ibid., p. 662.
34. Ibid., p. 666.
35. Ibid., pp. 668-69.
36. Ibid., pp. 670-71.
37. Ibid., p. 671.
38. 323 U.S. 214 (1944) Justice Murphy dissenting, p. 233.
39. 334 U.S. 410 (1948).
40. 239 U.S. 33 (1915).
41. 334 U.S. 410 (1948), p. 422.
42. 334 U.S. 410 (1948), p. 427.