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political attitudes. Jurisprudential regimes identify relevant case factors and/or set the level of scrutiny or balancing the justices will use. These jurisprudential regimes have the potential to make a significant difference in the decisions of the justices. We identify a candidate jurisprudential regime, content-neutrality, which appears to govern the general area of free expression law. The Court applies the strictest standard of review to regulations of expression that target the content or viewpoint of expression. Relying on a series of statistical tests using logistic regression, we find that the justices take seriously this jurisprudential regime. oes law influence the justices of the U.S. Supreme Court as they decide cases? Some leading scholars of the Supreme Court assert that law makes little difference. According to the most extreme version of this position, justices largely follow their personal ideological preferences-a view that the Supreme Court itself did much to enhance in Bush v. Gore (2000). If this is true, then the Supreme Court differs from a small legislative body only in the selection and tenure of its members, its technical rules of procedure, and its inability, at least formally, to initiate issues to consider. Whether or not courts generally, and the Supreme Court specifically, differ from legislative bodies has major implications for how we think about the role of courts and analyze their processes and outputs. We contend that courts, including the Supreme Court, are different, and that part of this difference is the role of law in decision making. In this article, we describe and test a new approach to incorporating law into statistical models of Supreme Court decision making. At the same time, we do not reject the importance, or even the dominance, of attitudinal influences on the Court's decisions. However, we argue that one must move beyond the images of the role of law as a mechanistic, autonomous force to arrive at a legal model that is relevant at the Supreme Court level. Segal and Spaeth (1993, 1994; Spaeth and Segal 1999), the leading proponents of the attitudinal model of Supreme Court decision making, argue that justices of the Court are free to decide cases solely in line with their policy (attitudinal) preferences and almost always do so decide. According to this interpretation the justices' freedom to pursue their own policy goals is due to their specific institutional situation: They possess life tenure, sit at the pinnacle of the judicial hierarchy, seldom have ambition for higher office, choose which cases they will decide, and have little fear of being overturned by the elected branches of government, particularly in constitutional interpretation cases (Spaeth and Segal 1999). We do not dispute that the Supreme Court's institutional setting frees justices from the kinds of constraints that are faced by lower court judges, elected officeholders, or appointees serving either fixed terms of office or at the pleasure of some other officeholder. However, freedom from review or electoral accountability does not prevent the justices themselves from erecting other constraints that shape

W T He examine how the Supreme Court uses signals and indices from lower courts to determine which cases to review. In our game theoretic model, a higher court cues from publicly observable case facts, the known preferences of a lower court, and its decision. The lower court attempts to enforce its own preferences, exploiting ambiguity in cases'fact patterns. In equilibrium, a conservative higher court declines to review conservative decisions from lower courts regardless of the facts of the case or the relative ideology of the judges. But a conservative higher court probabilistically reviews liberal decisions, with the "audit rate" tied to observable facts and the ideology of the lower court judge. We derive comparative static results and test them with a random sample of search-and-seizure cases appealed to the Burger Court between 1972 and 1986. The evidence broadly supports the model. H ierarchical control of organizations is problematic throughout the realm of politics. Congress and presidents attempt to control agencies, upper levels of bureaucracies attempt to control lower levels, and higher courts strive to control lower courts. With incomplete information about their subordinates' decisions and knowledge, superiors in rule-based hierarchies often employ some form of auditing. In this article we study how the Supreme Court uses signals and indices from lower courts to pluck a relative handful of cases from a plethora of potential candidates for review. Our point of departure is the role of review in enforcing the doctrinal preferences of the Supreme Court within the judicial hierarchy. We begin by presenting a game-theoretic model of

Each year thousands of cases and litigants come to the Supreme Court. How can the Court find the most important cases to decide? The law of obscenity illustrates particularly well the Court's problem as it constructs its plenary agenda. Using data drawn from petitions for certiorari and jurisdictional statements filed with the Supreme Court from 1955 to 1987, we formulate and test a model of case selection in which professional obscenity lawyers and organized interests figure as critical elements in the process of agenda building. We also encounter strong evidence of the Court's differential treatment of several different litigants. Moreover, the calculus of selection changed markedly over time, as the Court itself changed; the Burger Court and Warren Court weighed several of the criteria quite differently.

How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations.The legal modelsuggests that the rule of law (stare decisis) is the key determinant. Theextralegalmodel posits that an array of sociological, psychological, and political factors produce judicial outcomes. To determine which model better accounted for judicial decisions, we used Supreme Court cases involving the imposition of the death penalty since 1972 and estimated and evaluated the models' success in accounting for decisional outcomes. Although both models performed quite satisfactorily, they possessed disturbing weaknesses. The legal perspective overpredicted liberal outcomes, the extralegal model conservative ones. Given these results, we tested another proposition, namely that extralegal and legal frameworks present codependent, not mutually exclusive, explanations of decision making. Based on these results, we offer an integrated model of Supreme Court decision making that contemplates a range of political and environmental forces and doctrinal constraints.

The role of the Supreme Court of the United States in national policy making has long been a subject of debate among students of the American legal system and of democratic theory. Both the relative influence of the Court vis-à-vis other political institutions and the implications of judicial review for principles of majority rule and democracy have been central to this discussion. Perhaps the most influential account of the role of the Court offered in recent years is Robert A. Dahl's 1957 article, “Decision-Making in a Democracy: The Role of the Supreme Court in National Policy-Making.” Dahl argues that the Court, like other political institutions, is a member of the stable ruling coalitions that dominate American politics, and that its decisions are generally supportive of the policies emerging from other political institutions.Consideration of the way Dahl interprets his own evidence, of Court decisions since 1957, and of other relevant evidence that is excluded from his analysis (particularly the activities of the Court in statutory construction and in cases arising out of states and localities) suggests that the Court participates more significantly in national policy making than Dahl's argument admits.

In the period from 1947 to 1976, the United States Supreme Court has denied certiorari in more than half the cases involving conflict with Supreme Court precedent or intercircuit conflict. In both instances, the denial rate has been higher in the Burger Court than in the Vinson and Warren Courts and denial has been greater for intercircuit conflict cases than for cases in which the ruling in the lower court was in conflict with one or more Supreme Court precedents. When conflict was conceptualized as a predictor of decision and examined along with federal government as petitioning party, economic issues, and civil liberty issues, it was found to have 4 to 7 times the predictive power of the other variables combined for the Vinson and Warren Courts. For the Burger Court, the petitioning party variable was found to be a better predictor than conflict, but conflict was a much better predictor than the subject variables. Discriminant function models using the four predictor variables were able to account for up to 36.9% of the variance in the Supreme Court's certiorari decisions, almost all of which was the result of the contributions made by the conflict and party factors.

There were no changes in the personnel of the Court during the 1947 term. The former Chief Justice, Charles Evans Hughes, Avho had retired from the Court on July 1, 1941, died on August 27, 1948. Justice Hughes had served on the Court from May 2, 1910, to June 10, 1916, and was appointed Chief Justice on February 13,1930, succeeding William Howard Taft. In characteristic fashion, the justices filed during the 1947 term a very large number of dissenting and concurring opinions liberally salted with spirited and often bitter judicial invective.

A protective tariff is constitutional. While most of us—Democratic party platforms to the contrary notwithstanding—had suspected that this was true, the Supreme Court, curiously enough, never passed on the question until its decision in Hampton v. United States. In that case the plaintiffs attacked the validity of the Tariff Act of 1922 on two grounds. In the first place, the so-called flexible tariff provision embodied in Section 315 was alleged to authorize an unconstitutional delegation of legislative power to the President. That section provides, in substance, that when the President, upon investigation, finds that differences in the cost of production here and abroad of articles produced in this country are not equalized by the tariff duties fixed by the act, he shall thereupon fix such new rates as will equalize these differences. The Court had no difficulty in rejecting this contention under the authority of Field v. Clark, in which the reciprocity sections of the Tariff Act of 1890 were sustained. Chief Justice Taft, speaking for a unanimous Court, reviews the general theory of the separation of powers and the doctrine that legislative power may not be delegated. He emphasizes, however, that each department may properly call upon the others for assistance “so far as the action invoked shall not be an assumption of the constitutional field of action of another branch.” The scope and character of this assistance, furthermore, “must be fixed according to common sense and the inherent necessities of the governmental coördination.”

The Supreme Court of the United States has been as impartial an umpire in national-state disputes as one of the members of two contending teams could be expected to be. This is not to impugn the wisdom or the fairness of the Supreme Court, but it is to say that the Supreme Court has been partial to the national government during the past one hundred and forty-four years of our experience with a federal system in the United States. The states, as members of the federal system, have had to play against the umpire as well as against the national government itself. The combination has long been too much for them.

The membership of the Supreme Court did not change during the 1944 term, but Mr. Justice Roberts resigned in July after the term had ended. Divisions in the Court were as numerous and as difficult to classify as before. Four justices dissented in twenty-seven cases, while three justices dissented in sixteen cases. The Court seems to be moving toward the old practice of the pre-Marshall period by which the justices wrote seriatim opinions. There is a depressing increase in the number of cases in which three, four, and even five justices feel impelled to write separate opinions.

The membership of the Supreme Court underwent but one change during the 1940 term. Mr. Justice McReynolds retired on February 1, 1941. Chief Justice Hughes retired on June 2, 1941, after the term had closed. The vacancies thus created were both filled during the summer recess. Mr. Justice McReynolds, a Tennessee Democrat, was Attorney-General in President Wilson's first cabinet, and was appointed to the Court in 1914. He has long been rated one of the most conservative of the justices and was a consistent and bitter opponent of the New Deal and all its works. Mr. Justice Van Devanter, who had retired in 1937, died on February 8, 1941.

No one who has followed the steady expansion of federal authority over the business of interstate carriers sanctioned by the Supreme Court in the Shreveport Case, Illinois Central R. Co. v. Public Utilities Commission, and Railroad Commission v. Chicago, B. & Q. R. Co., will view with surprise the unanimous decision of that tribunal in Dayton-Goose Creek R. Co. v. United States, sustaining the validity of the “recapture” clause of the Transportation Act of 1920. This clause provided in substance that since it is impossible to establish uniform rates upon competitive traffic which will adequately sustain all the carriers needed to do the business, without giving some of them a net income in excess of a fair return, any carrier receiving such excess shall place one-half of it in a reserve fund to be maintained by the carrier for certain specified purposes, and shall pay the other half into a general railroad revolving fund to be maintained in the interstate commerce commission. This fund is to be used by the commission to make loans to carriers to meet expenditures for capital account, and so forth.

“Pocket veto” is the term applied to the killing of a bill by the President by the process of retaining it without signing it when Congress adjourns before the bill has been in his hands ten days. The Constitution provides for the pocket veto by stating: “If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.” In the “Pocket Veto” case the Court decided that the word “adjournment” in this clause refers not merely to the final adjournment at the expiration of a Congress, but to any temporary or ad interim adjournment. In short, the President may effectively pocket veto a bill whenever Congress, by going home, prevents him from returning it within ten days. The Court thus gave judicial sanction to a practice which has been followed sporadically ever since the days of Madison.On June 24, 1926, a bill was presented to President Coolidge authorizing certain Indian tribes to sue in the Court of Claims. On July 3 the first session of the 69th Congress adjourned, and it did not meet again until December. It was not in session on July 6—the tenth day after the bill was presented to the President (Sundays excepted).

In November, 1930, Judge William Clark of the United States district court in New Jersey achieved nation-wide notoriety by a decision holding that the Eighteenth Amendment was not properly ratified and is therefore not a part of the Constitution. A prosecution had been brought against one Sprague, under an indictment charging unlawful transportation and possession of liquor in violation of the Volstead Act. This indictment Judge Clark quashed on the ground that the Eighteenth Amendment upon which the Volstead Act rests should have been ratified by conventions called for that purpose in three-fourths of the states, rather than by the legislatures of those states. This conclusion he supported by a long argument emphasizing the fundamental character of the constitutional change effected and the importance and necessity of having such a change accomplished by the agency of representatives elected by the people of the several states for that specific purpose. An appeal from Judge Clark's decision was at once taken by the government under the provisions of the Criminal Appeals Act of 1907. In fact, it was to meet just such situations as this that the act of 1907 was passed; for without the possibility of such appeal a decision of a lower federal court adverse to the constitutionality of a federal criminal statute might be final within the district concerned. No question of double jeopardy is raised by this procedure, since the accused is not placed in jeopardy until the trial jury is sworn and the quashing of the indictment occurs long before that point is reached.

The 1936 term of the Supreme Court will probably be rated a notable one. This is due both to the Court's own work, and to certain extraneous occurrences which could hardly fail to have some impact upon it. In any attempt to evaluate the work of this term, one should bear in mind the following facts: First, a month after the Court convened President Roosevelt was reëlected by one of the most impressive popular and electoral majorities in our political history. Second, in February the President submitted to Congress his proposal for the reorganization of the Supreme Court, including the enlargement of its membership by the addition, up to fifteen, of a new justice for every one remaining on the Court beyond the age of seventy. This proposal aroused violent opposition, the debates on it continued for many months, and ultimately the plan was defeated largely through the efforts of the President's own party. The discussions on this proposal were going on during much of the time in which the Court was sitting. Third, in every case in which New Deal laws were attacked, they were held valid. These results were accomplished in many instances by five-to-four margins, and in the Minimum Wage Case by a five-to-four reversal of a previous five-to-three decision.

In order to analyze the trend of the United States Supreme Court from the beginning of its 1936 term in October, 1936, to the end of the 1945 term in June, 1946, it is first necessary to state the situation at the beginning of this period.Before the pressure of our last great depression, the United States Supreme Court had found restrictions to exist upon the powers of the national government, and had found barriers against governmental power, both national and state. These barriers were found primarily in a small number of cases: Ribnik v. McBride, 277 U. S. 350 (1928), which restricted price regulation; Hammer v. Dagenhart, 247 U. S. 251 (1923), in which federal power was held not to extend to the shipment of child-made goods in interstate commerce; Adkins v. Children's Hospital, 261 U. S. 525 (1923), in which it was held that a statutory regulation of minimum wages for women was violative of due process of law; Adair v. United States, 208 U. S. 161 (1908) and Coppage v. Kansas, 236 U. S. 1 (1915), which sustained the so-called “yellow-dog” contract, and held that it was unconstitutional for either state or nation to forbid the employer's contracting that his employees should not belong to unions.These opinions have now been overruled or explicitly disregarded and the Court has expressed the further opinions that state powers in no way restrict the powers granted to the nation; and that the national power to spend for the “general welfare of the United States” is not limited by the direct grants of legislative power found in the Constitution.

The central point of interest in the work of the court the past term is supplied by the large attention given to the question of the rights and duties of labor under the law. The problem is approached repeatedly, both from the side of the state's police power and that of national power, and in the field of statutory as well as that of constitutional construction. Important results were also reached in interpretation of the “commerce” clause, both in its aspect as a source of national power and in its aspect—because of the doctrine of the exclusiveness of the power of Congress—as a restriction on the states; but especially in the latter aspect. However, the most interesting single decision of the term for students of constitutional theory and of government was one dealing with the national power of taxation.

As was indicated in a preceding article, the chief feature of the judicial year 1909–1910, from the point of view of Constitutional Law, was that the decisions, though numerous, were comparatively unimportant. On the contrary the chief feature of the constitutional decisions of the judicial year 1910–1911 was that an unusual number of them appeared to the public to be of great interest and consequence. Hence it is advisable to deal with the judicial year 1910–1911 in a manner wholly different from that which was adopted with its predecessor. The article covering the judicial year 1909–1910 collected all the constitutional cases in the Supreme Court of the United States, and, with the briefest possible indication of the point decided, distributed them among the several clauses of the Constitution which they served to annotate. For the judicial year 1910–1911, on the other hand, the plan adopted is to confine attention almost wholly to the few decisions making the year memorable. Thus it becomes possible to give a rather full statement of those few decisions and now and then to add comments.

The vacancies on the Supreme Court caused by the retirement of Mr. Justice McReynolds and Chief Justice Hughes were filled by President Roosevelt during the summer of 1941. When the Court convened in October, Mr. Justice Stone, originally appointed by President Coolidge, became Chief Justice. Chief Justice White was the only other associate justice to be promoted to the Chief Justiceship. Senator James F. Byrnes of South Carolina, and Attorney General Robert H. Jackson of New York took their seats as associate justices. Thus seven justices have been placed on the Court by President Roosevelt. Any idea, however, that these Roosevelt appointees conform to any uniform pattern of thought is belied by the fact that in the 75 cases in the 1941 term turning on important questions of either constitutional law or federal statutory construction, there were dissents in 36, and 23 of these dissents were by either three or four justices. No act of Congress has been declared unconstitutional since May, 1936, when the Municipal Bankruptcy Act was held invalid. Since 1937, the Court has overruled 20 previous decisions, mentioning them by name, while it has modified or qualified a number of others.

The Supreme Court of the United States, whose decisions not only define constitutional law but vitally affect national policy, has long held both an honored and a controversial place in American life. In no area do its decisions bring it more honor or more controversy than in the field of religion; for, as a member of the First Congress under the Constitution said, “the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand. … Thus, the same decision of the Court may be hailed by some as a great landmark in the struggle for religious liberty, and denounced by others as a serious invasion of liberty of conscience. For although it may be pleasant to dream of religion insulated from governmental touch, the dual membership of citizens in the state and in religious bodies insures that conscience and government will touch at some points with inevitable friction, and, to the conscience so touched, it makes little difference whether the governmental hand is that of a local school board, the Congress, or the Supreme Court of the United States.The Court has recently been attacked as antireligious, or at least as callous to our religious heritage, because of its decisions invalidating a state-prescribed prayer and state-prescribed Bible reading in public schools. The first of these decisions prompted the more excited outcry, but the two, at first singly and then together, have precipitated a renewed debate about the proper constitutional relationship between the state and religion.

Several of the cases already considered under the commerce clause involved further questions under the Fourteenth Amendment. Georgia's misuse of the mileage ratio in applying the unit rule to the taxation of wandering cars was found so arbitrary as to violate the requirement of due process. The minority insisted that “the case presents no question of taxing a foreign corporation with respect to personal property that never has come within the borders of the state.” This was not specifically denied by the majority who seem to base their decision on excessive valuation of property within the jurisdiction rather than on taxation of property outside the jurisdiction. Yet in substance the case is one of taxing extra-state values though not extra-state tangible objects.Missouri's excessive fee for certificates authorizing the issue of bonds secured by railroad property within the state, which was held an unconstitutional regulation of interstate commerce, was alleged by complainant to be a violation of the Fourteenth Amendment as well. The opinion of the court did not pass on the due-process question, but the cases cited under the commerce clause relied also on the Fourteenth Amendment.

From the historical point of view no more interesting case was decided last term than that of Missouri v. Holland, in which a bill in equity brought by the state of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of July 3, 1918, and the regulations made by the secretary of agriculture in pursuance of this act was finally dismissed, Justices Van Devanter and Pitney dissenting without opinion.The objectors to the statute and the underlying treaty based their argument upon the Tenth Amendment, supplemented by the proposition that the control of migratory birds within their respective limits is a power reserved to the states, and from these premises they proceeded to draw the conclusion that “what an act of Congress could not do unaided, in derogation of the powers reserved to the states, a treaty cannot do.” But, Justice Holmes answers in his opinion for the court, the treaty-making power is expressly delegated to the United States, treaties made under the authority of the United States are the supreme law of the land, and by article 1, section 8, Congress may pass all laws necessary and proper to carry valid treaties into effect.

On February 15, 1943, Wiley B. Rutledge, Jr., a judge of the United States Circuit Court of Appeals for the District of Columbia, took the seat on the Supreme Court vacated by the resignation in October, 1942, of Mr. Justice Byrnes. There were no other changes in the Court's personnel. Disagreement among the justices abated somewhat. In only a dozen cases of importance did either four or three justices dissent, as against some thirty cases in the last term. The Court overruled two earlier decisions, both recent; and the reversal in each case was made possible by the vote of Mr. Justice Rutledge.A. QUESTIONS OF NATIONAL POWER1. WAR POWER-CIVIL VERSUS MILITARY AUTHORITYWest Coast Curfew Applied to Japanese-American Citizens. In February, 1942, the President issued Executive Order No. 9066, which authorized the creation of military areas from which any or all persons might be excluded and with respect to which the right of persons to enter, remain in, or leave should be subject to such regulations as the military authorities might prescribe. On March 2, the entire West Coast to an average depth of forty miles was set up as Military Area No. 1 by the Commanding General in that area, and the intention was announced to evacuate from it persons of suspected loyalty, alien enemies, and all persons, aliens and citizens alike, of Japanese ancestry.

As the last summary in the Review of the decisions of the United States Supreme Court on constitutional questions included the cases at the October term, 1910–1911, it may be desirable now under a few headings to group the cases which seem to be of fundamental importance decided during the three judicial years commencing in 1911 and concluding in 1914. Without any numerical summary (which would be difficult and of little value in view of the fact that many cases in which constitutional questions are raised by counsel and briefly referred to by the court are of no significance as indicating any new development or application of constitutional provisions) it may safely be said that the number of important cases in which difficult constitutional questions have been decided has during this period been unusually large. As the activity of Congress in pushing its legislative power constantly closer to the line of its constitutional authority increases, the number of cases in which the limits of such authority are necessarily involved must also increase. But it may further be suggested by way of rough generalization that the principles of constitutional law relating to other subjects on the boundary line between state and federal legislative powers has become reasonably well established, and comparatively few cases of importance relating to their application have recently been decided by the Supreme Court.

Ever since the famous case of Marbury v. Madison in 1803, the United States Supreme Court has exercised the power of declaring acts of Congress unconstitutional and of refusing to enforce them as law. From the beginning, the exercise of this power has been the subject of great controversies as to both theory and practice. It has been assailed as subverting the true nature of our government. It has been stigmatized as the foundation of a judicial obligarchy. It has been attacked as a means for the nullification of the popular will as expressed in Congress. It will be the purpose of this paper, therefore, to inquire into the use of this power in relation to acts of Congress with especial regard to (1) the criticisms that have been made at various times throughout American history, and (2) the proposals that have been made to modify the exercise of this power.

As was pointed out a year ago in this Review, the Supreme Court was able to deal with the cases involving the New Deal which came before it during its 1934 term without any striking enlargement of judicial power and without the announcement of any novel constitutional doctrine. The N.R.A., the Gold Clauses, the Farm Bankruptcy Act, were dealt with by the familiar processes of deciding whether Congress had actually exercised a power not granted to it by the Constitution, or had exercised a granted power in a forbidden way. The New Deal issues which came to the Court during the 1935 term were quite as far-reaching in significance and were certainly not of a routine variety. They involved, in some cases, constitutional clauses never before interpreted by the Court. Some of the federal laws under attack were obviously exercises of delegated powers, but at the same time, they exercised delegated powers for purposes which were novel and which had been commonly supposed not to be within the reach of federal authority. In dealing with laws of this type, the Court brought forward and established as a working implement of constitutional construction the so-called doctrine of “dual federalism.”

The 1951 Term of the Supreme Court, during which there was no change in its makeup, continued to exhibit the behavior pattern of the previous Term, both in the mechanics of operation and the drift of decision. The work of the Truman Court is a compound of new Justices and the shifting concatenation of historical forces. It operates amidst the strains and tensions of the Cold War. The leading cases of this Term, dealing with such subjects as presidential seizure of private property, the treatment of aliens, by-products of the trials of Communists, and the pressure on civil liberties generally, all reflect the push of current history.The total number of dispositions during the 1951 Term, 1207, was almost the same as the number for the 1950 Term, which was 1202. There were only 83 signed opinions, as compared with 98 in the 1950 Term and 87 in the 1949 Term. Twenty-five years ago the number of signed opinions averaged around 200 per Term. The reduction in the number of signed opinions was matched by a growing number of dispositions on the merits by memorandum order. The Court disposed of 200 cases on the merits; 101 came up by appeal (in about equal numbers from the federal district courts and the state courts) and 99 reached the Court on certiorari (72 from the federal Courts of Appeals, 24 from state courts, and 2 from the Court of Claims). The Court continued to keep a tight rein on its discretionary jurisdiction.

The 1938 term of the Supreme Court brought substantial changes in its personnel. Mr. Justice Cardozo died on January 9, 1938. He was succeeded by Mr. Justice Frankfurter, who took office on January 30, 1939. On February 13, 1939, Mr. Justice Brandeis retired, and on April 17 Mr. Justice Douglas was appointed to fill his place. By the end of the term, therefore, four justices appointed by President Roosevelt had taken office. It is too early to appraise the results of these appointments upon the decisions and doctrines of the Court. One statement may be made, however, which throws some light upon the recent trend of judicial decisions. In preparing the present survey of the Court's decisions, some sixty cases were examined, all but one or two of them turning upon constitutional issues. In these sixty-odd cases, Mr. Justice McReynolds and Mr. Justice Butler, the two remaining members of the conservative “old guard,” dissented together twenty-five times. In several instances they were joined in dissent by Mr. Justice Roberts, and once or twice by the Chief Justice. In the main, however, they stood alone against a compact majority of six or seven justices. With the death of Mr. Justice Butler in the fall of 1939, Mr. Justice McReynolds stands like the boy on the burning deck amidst what obviously appears to him to be the imminent destruction of the old constitutional system.

Fred M. Vinson took his seat as Chief Justice of the United States at the beginning of the 1946 term; there were no other changes in the personnel of the Court. Mr. Justice Jackson returned to the bench after his year's absence in Nuremberg. Continuing disagreement among the justices was shown by the fact that in twenty-three cases four justices dissented, and in twenty-four cases three dissented. The number of concurring opinions filed remained high.

The Supreme Court of the United States during its 1925 term seems to have taken a vacation from the solution of major constitutional problems. Its activities provided very little newspaper copy. Most of the more important decisions could have been pretty accurately forecast upon the basis of previous adjudications, while the constitutional questions raised which could be deemed in any sense novel related to more or less technical or trivial matters. A considerable number of the more interesting cases dealt merely with matters of statutory construction and did not present constitutional issues at all. This comparative dullness of the judicial year's work is in sharp contrast with the achievements of the preceding term of 1924, in which at least six cases of genuinely first-rate importance were decided; while the Court has begun its 1926 term by handing down its epoch-making decision in the Myers case relating to the President's power of removal, and has followed it by the far-reaching ruling in the municipal zoning law case. This absence of judicial fireworks in the 1925 term may well serve to emphasize two facts sometimes overlooked in an appraisal of the work of the Supreme Court. The first is that in any judicial year an overwhelming proportion of the work of that tribunal is and must necessarily be of a humdrum and inconspicuous variety; useful and important in the sense that technical, detailed, and even trivial questions need to be answered authoritatively, but certainly not spectacular.

During the 1937 term, the Supreme Court underwent the first changes in its personnel since Mr. Justice Cardozo succeeded Mr. Justice Holmes in March, 1932. On June 1, 1937, Mr. Justice Van Devanter retired and was succeeded at the opening of the new term in October by Mr. Justice Black. On January 18, 1938, Mr. Justice Sutherland retired and was succeeded on January 31 by Mr. Justice Reed. During a substantial part of the term, Mr. Justice Cardozo was absent on account of illness, and his death occurred July 9, 1938. Mr. Justice Black, whose appointment had attracted much public comment, threw himself into the work of the Court with unusual vigor. During the term, he wrote the opinion of the Court in fifteen cases. He dissented in fourteen cases, in nine of which he wrote dissenting opinions. He concurred without substantial opinion in eleven cases, and wrote a concurring opinion in one other case. Mr. Justice Reed participated less actively, first because of the lateness of his appointment, and second because his prior service as Solicitor-General of the United States disqualified him from sitting in a considerable number of cases. These changes in the membership of the Court have altered the almost even division on the bench between the so-called conservatives and the so-called liberals. Without attempting to speculate as to the course of future decisions, it is significant that the irreconcilably conservative block of justices, consisting of Justices Van Devanter, Sutherland, McReynolds, and Butler, has been broken up.

Chief Justice Harlan F. Stone died on April 22. He was appointed Associate Justice by President Coolidge in 1925, and was elevated to the Chief Justiceship by President Roosevelt upon the retirement of Chief Justice Hughes in 1941. On June 7, President Truman nominated Fred M. Vinson, then Secretary of the Treasury, to be Chief Justice of the United States, and the Senate confirmed the nomination on June 20. Mr. Justice James C. McReynolds, who retired from the Court in 1941, died on August 24, 1945. Mr. Justice Jackson, who in May, 1945, had been appointed chief American prosecutor at the trial of Axis war criminals at Nuremberg, did not return to the Court during the 1945 term. On June 10, Mr. Justice Jackson, in Nuremberg, released to the press a statement sharply criticizing Mr. Justice Black for his failure to disqualify himself in Jewell Ridge Coal Corp. v. Local No. 6167, U.M.W. This case, which awarded coal miners “portal-to-portal” pay under the Fair Labor Standards Act, was decided by a five-to-four vote, and Mr. Justice Black's former law partner was attorney for the union. The statement, unprecedented in judicial history, made public record of a personal antagonism between the two justices, and elicited nation-wide press comment. Mr. Justice Black made no reply, and there have been no later repercussions of the incident.A court of eight justices decided twenty-three cases in which three justices dissented, and twenty-one cases in which two dissented. The Court overruled one earlier decision. This brings the list of overruled cases since 1937 to twenty-seven.

In previous issues of this Review Professor Wambaugh and the late Judge McClain have summarized the decisions of the Supreme Court on constitutional questions from 1909 to 1914. It is the purpose of this and a succeeding paper to deal in like manner with the decisions of the last three years. Owing to the number of cases decided during the triennium, the writer must content himself with the rôle of annalist and refrain from assuming that of analyst. For the benefit of those who desire fuller comment or criticism, references are given to articles and notes in various legal periodicals discussing the more important cases.Since the expiration of the October term of 1913, three changes have occurred in the personnel of the bench. Mr. Justice Lurton died July 12, 1914, and his successor, Mr. Justice McReynolds, took his seat October 12, 1914. Illness prevented Mr. Justice Lamar from participating in any of the decisions of the October term of 1915. He died on January 2, 1916. The commission of Mr. Justice Brandeis, who succeeded him, was not recorded until June 5, 1916, so that during the 1915 term only eight justices participated in the work of the court. Mr. Justice Hughes resigned June 10, 1916, to accept the Republican nomination for the presidency, and his successor, Mr. Justice Clarke, took his seat on October 9, 1916. The bench as at present constituted consists of Chief Justice White, appointed associate justice by President Cleveland and chief justice by President Taft; Mr. Justice McKenna, appointed by President McKinley; Justices Holmes and Day, appointed by President Roosevelt; Justices Van Devanter and Pitney, appointed by President Taft; and the three new justices appointed by President Wilson.

The Supreme Court has at last passed squarely upon the broad powers of the Federal Radio Commission over the business of broadcasting and has upheld them in a sweeping manner in the case of Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co. The general authority conferred on the Commission by the act of 1927 was enlarged in 1928 by provisions directing the Commission to maintain as great equality as possible in the allocating of broadcasting licenses among the zones created and further to distribute such licenses fairly and reasonably to the states within each zone according to population. In 1930, it appeared that Illinois had 55 per cent more than its quota of stations, while Indiana had 22 per cent under its quota. The Commission assigned to station WJKS at Gary, Indiana, operating rights on a frequency theretofore used by two Chicago stations. One of these, operated commercially by the respondent, used much National Broadcasting Company program material; the other, operated by the North Shore Church of Chicago, broadcast only religious programs. The effect of the order was to rule these stations off the air. It appeared that the Gary station had suffered from interference, and was furthermore equipped to serve its audiences with programs of unique interest.

The decisions arising under the commerce clause of the Constitution during the 1924 term of the Supreme Court did not involve any striking extension of national authority in that field. There was no case approaching in significance the Recapture Clause Case decided in the previous term. However, the reinforcement of a familiar principle through a striking application of it, or the lucid and pungent expression of an old doctrine, lends some significance to several cases which otherwise have no far-reaching importance.In the case of Brooks v. United States the court sustained the constitutionality of the National Motor Vehicle Theft Act of 1919. The act subjected to heavy penalties any one who transported or caused to be transported in interstate or foreign commerce any motor vehicle, knowing it to have been stolen, and any one who, with the same guilty knowledge, “shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce.” It is certainly no surprise to learn from the opinion of Chief Justice Taft that the power to regulate commerce which is broad enough to enable Congress to bar from interstate transportation lottery tickets, diseased cattle, adulterated food, prize-fight films, and the like, and to penalize the interstate transportation of women for immoral purposes, is a power which can likewise be used to punish those who abuse the privileges of interstate and foreign commerce by using them in the furtherance of larceny or the disposal of stolen goods.

During the 1939 term, President Roosevelt made his fifth appointment to the Supreme Court. Mr. Justice Butler died on November 16, 1939. Attorney-General Frank Murphy was appointed to this vacancy and took his seat on February 5, 1940. Presidents Lincoln and Taft also appointed five members of the Court; only President Washington and President Jackson appointed more than five. By his policy of choosing younger men, President Roosevelt reduced the average age of the members of the Court from seventy-two to sixty-one in less than three years. This change is important because it brings to the work of the Court younger and more vigorous men; it is also important because it extends the President's influence, through his appointment of justices, over a much longer period of time. It seems probable that we shall have a “Roosevelt Court” for many years to come.