The Rights of Majorities and of Minorities in the 1961 Term of the Supreme Court1

But for two decisions, the 1961 term of the Supreme Court could have been characterized as one of the least interesting in recent years. Apart from Baker v. Carr and Engel v. Vitale no decision stands out as a major interpretation either of the Constitution or of national or state legislation. Not that there was any shortage of constitutional cases. In at least thirty such the Court gave decisions and written opinions. In a number of instances, some of which will be examined presently, acts of state legislation were held invalid. Some 63 cases involved the interpretation of acts of Congress; in none was a statute held unconstitutional. There was, in other words, a continuation of the point of view which the Court adopted in the spring of 1937, rather than a hostile disposition toward both state and national legislation dealing positively with the social and economic problems coming in the wake of that new (to the United States) combination of factors, the industrialization of much of the country and the acceptance of most assumptions of nineteenth century humanitarianism. Last year Professor McCloskey, writing in this Review on the 1960 term, quite properly limited himself to the consideration of cases dealing with civil rights. Yet before Charles Evans Hughes became Chief Justice in 1930, so few such cases arose that no one would have devoted even a major portion of an annual survey to them. Indeed, before the Civil War there was only one obscure case in which an act of a territorial legislature was held void as contrary to the guarantees of civil rights in the Constitution, and none involving either Congressional or state legislation. A few emerged in the decade after that War, but it was only with such cases as Strormberg v. California, Near v. Minnesota, Powell v. Alabama, Grosjean v. American Press Co., and DeJonge v. Oregon that the Supreme Court actively began to be the guardian of civil liberties.