UNITED STATES REPORTS VOLUME 459 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1982 (Beginning of Term) October 4, 1982, Through February 22, 1983 Together With Opinions of Individual Justices in Chambers HENRY C. LIND reporter of decisions UNITED STATES GOVERNMENT printing office WASHINGTON : 1985 JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. BYRON R. WHITE, ASSOCIATE JUSTICE. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. LEWIS F. POWELL, Jr., Associate Justice. WILLIAM H. REHNQUIST, Associate Justice. JOHN PAUL STEVENS, Associate Justice. SANDRA DAY O’CONNOR, Associate Justice. retired POTTER STEWART, Associate Justice. OFFICERS OF THE COURT WILLIAM FRENCH SMITH, Attorney General. REX E. LEE, Solicitor General. ALEXANDER L. STEVAS, Clerk. HENRY C. LIND, Reporter of Decisions. ALFRED WONG, Marshal. ROGER F. JACOBS, Librarian. in SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, effective nunc pro tunc October 1, 1981, viz.: For the District of Columbia Circuit, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., Associate Justice. For the Second Circuit, Thurgood Marshall, Associate Justice. For the Third Circuit, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Warren E. Burger, Chief Justice. For the Fifth Circuit, Byron R. White, Associate Justice. For the Sixth Circuit, Sandra Day O’Connor, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, William H. Rehnquist, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. For the Eleventh Circuit, Lewis F. Powell, Jr., Associate Justice. October 5, 1981. Pursuant to the provisions of Title 28, United States Code, Section 42, It is ordered that the Chief Justice be, and he hereby is, assigned to the Federal Circuit as Circuit Justice, effective October 1, 1982. October 12, 1982. (For next previous allotment, see 423 U. S., p. VI.) IV DEATH OF MRS. BRENNAN Supreme Court of the United States MONDAY, DECEMBER 6, 1982 Present: Chief Justice Burger, Justice Brennan, Justice White, Justice Marshall, Justice Blackmun, Justice Powell, Justice Rehnquist, Justice Stevens, and Justice O’Connor. The Chief Justice said: Last Wednesday, Marjorie Leonard Brennan, wife of Justice Brennan, died, after a long and courageous struggle with illness. What marked her in a very special way that all who knew her admired, was her shining spirit and uncomplaining attitude. No one can really know what that kind of courage, in the face of long illness, calls for, but she inspired the love and admiration of all who knew her. Especially those of us who saw her frequently, marvelled at her courage and cheerfulness. The light of her spirit will be sorely missed, not only by her family, but all those who, over the years, witnessed her quiet strength, her smile, her determination to carry on with life and live it to its fullest. Marjorie Brennan truly lived her life to the fullest against great odds. As a mark of our sorrow, and of our affection for her, and for our Brother Justice Brennan and his family, and our deep and lasting affection for Marjorie Brennan, the Journal of the Court will record that adjournment of this Court today is in honor of her life, and her memory. v PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES IN MEMORY OF JUSTICE FORTAS* MONDAY, DECEMBER 13, 1982 Present: Chief Justice Burger, Justice Brennan, Justice White, Justice Marshall, Justice Blackmun, Justice Powell, Justice Rehnquist, Justice Stevens, and Justice O’Connor. The Chief Justice said: The Court is in special session this afternoon to receive the Resolutions of the Bar of the Supreme Court in tribute to our former colleague and friend, the late Justice Fortas. The Solicitor General is recognized at this time for the purpose of presenting those Resolutions which were adopted by the Bar. Mr. Solicitor General. Mr. Solicitor General Lee addressed the Court as follows: Mr. Chief Justice, and may it please the Court: The members of the Bar of the Court met this day and have adopted resolutions in honor of Justice Fortas. And I would ask leave of the Court to present those resolutions at this time. Abe Fortas, Associate Justice of the Supreme Court of the United States from 1965 to 1969, died at his home in Washington, D. C., on April 5, 1982. He was 71 years old, but even for a man whose career had been so rich, so varied, and ♦Justice Fortas, who resigned from the Court effective May 14, 1969 (395 U. S. in), died in Washington, D. C., on April 5, 1982 (456 U. S. V). VII VIII JUSTICE FORTAS so fruitful, his death cannot be said to have come in the fullness of time. Only a few days before, he had argued before the Court and neither his appetite for work nor his powers showed any signs of diminishing. The members of the Bar have met in the Supreme Court building on December 13, 1982, to commemorate him as one of the great figures of our profession, to survey his vast and diverse accomplishments, and to testify to the enrichment he brought to the law, to the arts, and to the nation. To recall the details of his life is to exhibit, as the historian Burckhardt said, only the “underside of the tapestry”: the knots and stitches, not the whole work. Abe Fortas was animated by a warmth, a compassion, a profound gravity that could be felt, that cannot be captured in words, but that made him who he was and whom we remember. Abe Fortas was bom in Memphis, Tennessee, on June 19, 1910. His Orthodox Jewish parents had emigrated from England. His father was a cabinetmaker who was also a sometime shopkeeper and jeweler. Abe was the youngest of five children and the family’s modest circumstances dictated that any achievement he enjoyed would be self-made. He worked his way through high school by playing the violin in a small dance band. The violin began as a source of pleasure, became a means of self-support (along with part-time work in a shoe store), and remained a passion throughout his life. His academic record led to a scholarship at Southwestern College, a Presbyterian institution in Memphis. There he was president of the drama and debating clubs and leader of the school orchestra. With a near-perfect academic record, he won the Peres Scholarship to the Yale Law School, which he entered in 1930 at the age of twenty. Propitious circumstances and the relentless application of his remarkable ability made Yale the turning point of Fortas’ life. He led his class academically, was Editor in Chief of the Law Journal, and authored a brilliant student note at the direction of William 0. Douglas, then a young Sterling Professor of Law who would later call Fortas “my prize student” and who would be an intimate friend for life. Fortas was JUSTICE FORTAS IX appointed assistant professor of law upon his graduation in 1933, but for the next four years his world had two centers, New Haven and Washington. During summers and semesters when he was not teaching he worked at the Agricultural Adjustment Administration, at the behest of two other Yale faculty members who had been drawn to the New Deal, Thurman Arnold and Wesley Sturges. In 1934, Fortas joined Douglas at the new Securities and Exchange Commission as a consultant. He became an important collaborator with Douglas in the preparation of a study of protective committees that led to major legislative revisions in reorganization proceedings under the Bankruptcy Act. Three years after joining the Commission, Fortas left the Yale faculty. In the meantime he had married Carolyn Agger. She, too, became a brilliant student at the Yale Law School and after her graduation in 1938 began the outstanding career as a tax lawyer that has continued to the present day. In 1939, at the age of twenty-nine, Fortas became General Counsel to the Bituminous Coal Division in the Department of the Interior. Two years later he became Director of the Division of Power in the Department. In that capacity he met a young Congressman named Lyndon B. Johnson who was interested in a proposed power project in his home state of Texas. The introduction led to a life-long friendship, which included Fortas’ representation of Johnson in the contested Texas Senatorial election of 1948 and in other less public matters. Talented young men, of whom Fortas was one of the best, were able to rise quickly in the New Deal. In 1942, at the age of thirty-two, Fortas became Under Secretary of the Interior. His legal abilities had been firmly established. In the new post he demonstrated the judgment and force required to become a successful second in command to Secretary Harold Ickes, the self-styled curmudgeon of the Roosevelt administration. Fortas won Ickes’ trust so quickly and to such a degree that he frequently substituted for the Secretary at Cabinet meetings. X JUSTICE FORTAS With the declaration of war after Pearl Harbor, the business of the Interior Department acquired new gravity. The Department was charged with administering the removal of Japanese-Americans from the West Coast and with overseeing the administration of martial law in the Hawaiian Territory. Fortas fought a determined, though unsuccessful, battle to prevent the relocation and internment of the Japanese-Americans. In later years he would tell associates that he was prouder of his efforts in that cause than in any other he undertook in more than a decade of government service. With Ickes, he also fought to ameliorate the harshest aspects of martial law in Hawaii during the War. Fortas’ tenure in the Interior Department was interrupted briefly when he resigned to enlist as an apprentice seaman in the Navy. Rejecting any high-level desk assignment in the service, he was in boot camp when a persistent serious eye ailment compelled his release and he was reappointed to his still-vacant post as Under Secretary. When the War ended, so did the New Deal. In January 1946, the law firm of Arnold and Fortas was organized in Washington, D. C. Its purpose as Fortas later recalled in a tribute to Thurman Arnold, “was to provide a means for its two partners to make a living.” For almost twenty years, Fortas managed the firm and built it into one of the leading institutions in the city and in the country. The firm was extraordinarily successful in satisfying the purposes of its founders, who later included Paul Porter, former Price Administrator during the War. But Arnold, Fortas & Porter was more than a lucrative practice meeting the needs of large corporate clients. During the period of the 1950s that Justice Douglas called the time of the “Black Silence of Fear,” the firm represented not only large companies but also private citizens who were victims of anti-Communist hysteria, such as Dorothy Bailey, Dr. John Peters, Owen Lattimore, and Dr. Edward Condon, Director of the National Bureau of Standards. The cases all involved the fundamental right of individuals to differ from orthodoxy and to join, or at least to associate freely, with others of similar JUSTICE FORTAS XI views. The issues on which the firm based its defense of such cases were drier and more legalistic. “Most of them,” Fortas later wrote, “involved fundamental questions of procedural rights: to specific charges, to confrontation and cross-examination, to judgments based solely on substantial evidence, to the presentation of a defense and to counsel.” Each victory was one of both substance and process. The mere fact that the firm would take an unpopular case was a repudiation of the orthodoxy that had swept the country during the period. But Fortas and his colleagues did not rest on symbolism. Each case, be the client Lever Brothers, Federated Department Stores or Ezra Pound, received the same meticulous care. In every case in which he was involved, Fortas was at once the manager and the master of the smallest detail. The temperament of the named partners in the firm was illustrated by Thurman Arnold’s description of how each would have handled a trial involving the United Fruit Company. “I would try it carload by carload, Paul would try it case by case, and Abe would try it banana by banana.” Mastery of detail requires time, and in addition to his remarkable intellectual ability Fortas had enormous stamina. From his earliest days in the New Deal, law was a fourteen-hour a day, six- or seven-day a week task. To junior colleagues he could be a humorless, somewhat distant perfectionist: no early draft of any document was ever quite satisfactory. Final approval was only achieved after the most exacting professional standards had been satisfied. Although Abe Fortas was identified with “causes,” he did not see the lawyer’s duty as service to a cause. The only duty was to the client, and not to the client’s wishes but to the client’s interests. In praising Thurman Arnold, Fortas obviously articulated a mutual view and his own credo in rejecting a new vogue: “As the young lawyer views many of today’s battles, the client is of relatively little importance. The cause, not the client, is the object of dedication. The client is a technical necessity, not a person whose life or welfare is at stake. The undertaking is shaped and prosecuted not in XII JUSTICE FORTAS defense or vindication of the client, but in maximum furtherance of the idea or program.” As he rejected representing causes instead of—and perhaps at the expense of—people, Fortas also refused to pass judgment on the relative moral worth of his clients. The function and responsibility of the lawyer was to serve and to represent “each client as an individual, whether the client was a corporate malefactor or a presumably saintly civil libertarian.” Two of Fortas’ most important victories were for clients who fell somewhere between the poles he thus identified. His representation of Monte Durham in 1954, by appointment of the United States Court of Appeals for the District of Columbia Circuit, led to a decision that for its time was a landmark in the modem attempt to bring into closer proximity legal rules and scientific knowledge concerning insanity. Less than a decade later, again by appointment of the court, he convinced the Supreme Court that Clarence Earl Gideon was entitled under the Constitution to a lawyer to defend him in state court for a petty offense. Both cases were constitutional watersheds. Abe Fortas was an advocate of not only the powerful and the penniless, but also of the arts. If his passion professionally was craftsmanship, his passion privately was music and art. The two merged symbolically, in the form of his desk at the firm, which was made from a Victorian grand piano. He was an effective supporter of the National Endowments for the Arts and for the Humanities. He arranged for Pablo Casals to play at the White House, and in later years he helped direct the John F. Kennedy Center for the Performing Arts. He once said that the only thing he could not live without was his music. Though he played for pleasure, his musical sense and skill were of a high order, and he played the violin and viola regularly with the talented professionals who were his friends, in the Sunday evening sessions at his home that he called The 3025 N Street Strictly No Refund Quartet. His violin was a 200-year-old Guidantus, the gift of violinist Isaac Stem, cellist Leonard Rose, and pianist Eugene Istomin. A month after Fortas’ death, Stem led a JUSTICE FORTAS XIII memorial concert at the Kennedy Center in memory of the man who worked to make the Kennedy Center a vital force in the arts, who with Stem successfully fought the destruction of Carnegie Hall, and who helped make the Hirshhom Museum a reality. Abe Fortas was a man of rare completeness—patron and practitioner of the arts, successful corporate lawyer and superb advocate, defender of the poor and the persecuted. His legal renown came as a “Washington lawyer,” but not of the breed sometimes thought to provide clients with influence more than advice. Fortas knew Washington from the inside, but his success rested on an intuitive knowledge, built from the ground up, of how bureaucracies worked and thus how they needed to be addressed. His grasp of the workings of government extended to both the recondite and the mundane details. When an elevator car carrying lawyers, judges, and administrators was trapped between floors in the Export-Import Bank on the way to a meeting, Fortas opened the operator’s panel, pulled a lever, flicked a switch or two and the car was once again on its way. When his fellow passengers expressed their astonishment, Fortas replied with the mock innocence he occasionally affected, “It’s really quite simple, for an insider.” Fortas made fun of his personal connections in other ways. He listed his business in the 1965 edition of WHO’S WHO IN THE SOUTH AND SOUTHWEST as “Presidential Adviser, c/o The White House, 1600 Pennsylvania Avenue, Washington, D. C.” The joke would later prove to be somewhat of an embarrassment when President Johnson named Fortas to be Associate Justice of the Supreme Court of the United States on July 28, 1965, but nothing could hide the fact that the President valued him as a trusted adviser and consulted him informally on a wide range of matters. Fortas was not eager to accept appointment to the Court, but Johnson styled the nomination as a call to “vital duty” and Fortas accepted. The President, noting Fortas’ well-known reluctance to assume public office again after twenty years in private life, declared that “the job has sought the man—a scholar, a pro XIV JUSTICE FORTAS found thinker, a lawyer of superior ability and a man of deeply compassionate feelings toward his fellow man.” Abe Fortas took the constitutional and judicial oaths on October 4, 1965, to become the ninety-fifth Justice to sit on the Supreme Court of the United States. In the four terms that he sat as an Associate Justice he wrote 106 opinions—forty opinions for the Court, twenty-one concurring opinions, and forty-five dissenting opinions. His importance to the Court and to the nation during the parlous times in which he sat cannot be measured by output. Part of his value lay, as Holmes said of John Marshall, in the fact that he, and not someone else, was there during “a strategic point in the campaign of history.” His opinions did not strive for rhetorical effect. He could reduce a penetrating insight to a barbed phrase and he could summarize a complicated constitutional concept in a glistening sentence, but the quality of his work is not reflected in a string of memorable pearls. Each opinion spoke crisply with the authority of a master craftsman who readily apprehended the facts and arguments and who then went to the heart of the matter without reinventing the wheel along the way. His passion broke through the surface rarely, and then usually in cases involving the civil rights of racial minorities or the investigative abuses of the police. In both areas, he rejected abstract characterizations that hid disagreeable truths, and he sought to make equal protection of the laws and freedom from self-incrimination living realities and not technical constructs. The days that Justice Fortas sat on the Court lent themselves to pat labels for characterizing complex social problems and the Court’s role in addressing those problems. How the future will regard his times is not for us to say, but it is certain that he brought to his task a mature vision that refused to accept simple formulas. “Constitutional commandments are not surgical instruments,” he wrote. “They have a tendency to hack deeply—to amputate/’ Avery v. Midland County, 390 U. S. 474, 497 (1968). He thus cautioned against the application of slogans to resolve problems JUSTICE FORTAS xv touching many institutions, and he warned that adjudication was an inefficient tool to preserve constitutional guarantees: “The full realization of our great charter of liberty, set forth in our Constitution, cannot be achieved by this Court alone.” Desist v. United States, 394 U. S. 244, 277 (1969). He also warned that courts should be chary of overreaching, especially where economic policy was at stake either in the interpretation of the antitrust laws or in the review of agency action: “The courts may be the principal guardians of the liberties of the people. They are not the chief administrators of its economic destiny.” B. & 0. R. Co. v. United States, 386 U. S. 372, 478 (1967). His greatest contributions to the jurisprudence of the Supreme Court touched on what he saw as the essence of the liberties guaranteed by the Constitution, the procedures used by the criminal justice system. In addition to numerous opinions on the Fifth Amendment, he wrote, in the case of In re Gault, 387 U. S. 1 (1967), the charter of juvenile justice. He was acutely sensitive to the constitutional and procedural rights of minors, not only those charged with breaking the law as in Gault, but also those who wished to criticize public policy, Tinker n. Des Moines School District, 393 U. S. 503 (1969), and those who sought to learn more than one-sided orthodoxy, Epperson n. Arkansas, 393 U. S. 97 (1968). And he pleaded that the First Amendment had room to protect individuals and families from the loss of their legitimate privacy. Time, Inc. v. Hill, 385 U. S. 374, 412 (1967). Abe Fortas’ tenure on the Supreme Court embraced a period in which the law and its fiiture were called into open question not only in the courtroom but also in the streets. Although he invested remarkable energy and industry in his court work, he could not ignore what he viewed to be multiple threats to the law and to its basic organizing principles for society. In 1968 he published a pamphlet which he had begun before he joined the Court, Concerning Dissent and Civil Disobedience. He argued that civil disobedience was sometimes appropriate, but that violence never was, because violence begat more violence and thus destroyed the opportu XVI JUSTICE FORTAS nities for peaceful social change. The book was strangely misunderstood by some as a manifesto for lawlessness, but nothing could have been further from Fortas’ purpose or belief. “Democratic processes do indeed function,” the small book concluded, “and they can bring about fundamental response to fundamental demands, and can do this without revolution, and despite the occasional violence of those who either reject or have not attained the maturity and restraint to use, and not to abuse, their freedom. This is an extraordinary tribute to our institutions.” To confound those who misread him, he elaborated his views in an address to the American College of Trial Lawyers in August of 1968. “I say proudly that I am a man of the law,” he began. He repeated his faith in the rule of law and his abhorrence of violence, but he also issued a warning: “We will not tolerate violence or lawlessness but at the same time we will protect and preserve—despite the onslaught of those whose purported adherence to constitutional principles conceals a danger to our institutions more virulent and dangerous than outright attack—the possibilities of peaceful and orderly change that our Constitution guarantees.” On June 27, 1968, President Johnson nominated Abe Fortas to be Chief Justice of the United States to replace Earl Warren, who had announced the day before that he would retire as soon as a successor was confirmed. The nomination never went to a vote in the Senate, because Fortas asked on October 3 that his name be withdrawn from consideration after stormy confirmation hearings where questions were raised about decisions made by the Court both before and during his tenure, about the pamphlet and about Fortas’ extrajudicial activities. The following Spring further questions were raised which, it became evident, could not be laid to rest short of a full confrontation. To Fortas, the political implications of the controversy transcended personal vindication. He knew, as he said, that “if I stayed on the Court, there would be a constitutional confrontation that would go on for months. I feel that there wasn’t any choice for a man of conscience. ” Against the urgings of friends and those who JUSTICE FORTAS XVII recognized the importance of his contribution to the work of the Court, he resigned from the Court on May 14, 1969. After the resignation, he resumed an active practice as an eminent and valuable member of the bar. The practice was remarkably varied, challenging and consuming. Of particular interest to him was the future of the Commonwealth of Puerto Rico, with which he had a long association and which he represented in his only argument before the Court after leaving it. He continued his manifold activities on behalf of the arts, and he occasionally lectured. Although his work and his avocation seemed to fill a twenty-five hour day, he always had time for friends. During the illness that forced Justice Douglas to retire from the Court, and in the years following, Fortas was on hand at a moment’s notice. The life of Abe Fortas was so full, so rich, and lived at such intensity that it is possible we do not fully know the man we have lost. He recognized his own complexity. The Supreme Court, he said, “brings you face to face with the problems of what you really believe, and that accounts for some of the transformations of men on the Court. Maybe if I’d stayed on the Court long enough I’d have discovered a Fortas under the Fortas under the Fortas. But it didn’t happen.” Abe Fortas was not so much a man of contradictions as a man of great tensions. An instinctive, emotional passion for justice and fair play underlay his quiet and controlled public reserve; the man who moved so easily in the corridors of power was acutely uncomfortable with the trappings of that power, so much so that he could not bear to ride in the back seat of a limousine alone, because he detested the distinction between the passenger and the driver that the seating arrangement symbolized; and the active and diverse social life that he and Carolyn so enjoyed was at odds with his lifelong gravity and social concern. Abe Fortas bore the burden of the same kind of conscience that he perceived in his friend and former partner Louis Eisenstein: “He believed in man and man’s capability. He believed—although life could not have been easy for him, because he was a sensitive instru XVIII JUSTICE FORTAS ment, responding too easily, too deeply, too quietly, too passionately to the vibrations of others—not only those whom he knew, whose sorrows impinged upon his life, but also to the unseen multitudes whose problems to him were not abstract, but a personal agony and a personal responsibility.” We would not honor Abe Fortas properly, however, if our memory were cast only in sadness at his departure. As he said of Eisenstein, in that deep, deliberate, somewhat mournful voice which none who heard it can ever forget: “The death of a remarkable man is not just an end. It is also a beginning. His death does not terminate his life. His life continues in each of those whom he has touched, and in thousands whom he never encountered, but whose lives are better and richer because he lived.” WHEREFORE, IT IS RESOLVED, that we, the Bar of the Supreme Court of the United States, express our grievous sense of loss upon the death of Justice Abe Fortas, that we acknowledge our professional debt to him for his accomplishments as a lawyer, public servant and public citizen, and that we gratefully recognize his enduring contributions to our profession, to the arts and to the nation: It is further RESOLVED, that the Chairman of our Committee on Resolutions be directed to present these resolutions to the Court with the prayer that they be embodied in its permanent records. The Chief Justice said: Thank you, Mr. Solicitor General. The Court now recognizes the Attorney General of the United States. Mr. Attorney General Smith addressed the Court as follows: Mr. Chief Justice and may it please the Court. The Bar of the Court met today to honor the memory of Abe Fortas, Associate Justice of the Supreme Court from 1965 to 1969. JUSTICE FORTAS XIX Justice Fortas came to this Court after two extraordinary decades in the private practice of law. He was the first lawyer appointed to the Court directly from private practice in 35 years. He brought to the Court not only the habits of mind of the outstanding private practitioner, but the deeply felt concerns that shaped his own life. As a young man, Justice Fortas came to Washington with the New Deal. He served with distinction at the Agricultural Adjustment Administration, the Securities and Exchange Commission, and the Department of the Interior— where he became the Under Secretary at 32. From 1946 until 1965, Justice Fortas engaged in the private practice of law—founding his own firm, which became an exemplar of the Washington practice. During this period, however, Justice Fortas did not forsake public service. He demonstrated the importance of the lawyer to the service of the public through his representation of a broad range of clients. By appointment of the United States Court of Appeals for the District of Columbia Circuit and this Court, he successfully represented indigent clients in two historic cases. In the latter instance, he made an important contribution to the work of this Court. In 1962, the Court appointed him to brief and argue the cause of Clarence Earl Gideon, a destitute Florida convict. The story is well known. And it is a story that will continue to tutor future generations of law students and lawyers concerning their responsibilities to the public as members of the bar. Justice Fortas’ keen intellect, and his intolerance for obscure arguments, were apparent both in his opinions and in the courtroom. One of Justice Fortas’ law partners has said that it was a dangerous gamble to answer a question from him unless it could be done with certainty, and that no one gambled more than once. Those who argued before him quickly learned the same lesson. If there was a weakness in a lawyer’s argument, it was often Justice Fortas who would question the advocate about it—and not let him easily escape. The advocate’s only consolation was that when his opponent was making a questionable point, it was again Justice Fortas XX JUSTICE FORTAS who would often ask the incisive question and pursue the issue relentlessly until the weaknesses of the argument were fully revealed. Although a member of this Court for less than four years, he played a central role in the significant changes wrought during that period. He wrote forty opinions of the Court during those four terms. Although considered by most a stalwart of the Warren Court, he revealed the nuances of judgment that characterized his superb intellect by writing twenty-one concurring opinions and forty-five dissents. On this Court—as in private life—Mr. Fortas was his own man— indeed, a most remarkable man whose unique insights were the result of exceptional experience, hard work, and a sharp intellect. After leaving the Court, Justice Fortas returned to the private practice of law, and to a diverse life in which he devoted much of his time to public service. He gave generously of his efforts to the John F. Kennedy Center for the Performing Arts and to the National Endowment for the Arts. From 1970 until his death he was a member of the Advisory Committee on Appellate Rules of the Judicial Conference of the United States. His law practice once again led him back before this Court, where he presented another memorable oral argument only two weeks before his death. President Theodore Roosevelt once said that in life, “The credit belongs to the man . . . who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause . . . .” Abe Fortas was such a man. Throughout his life—which spanned a turbulent era of change—Justice Fortas proved himself a brilliant lawyer and a tireless advocate for his clients and those principles he cherished. In public service and in private life, he spent himself fully for those things in which he believed. Those who agreed with him, and those who did not, all recognize that Justice Fortas was always a magnificent advocate—and so often a successful one. Mr. Chief Justice, on behalf of the lawyers of this nation and, in particular, of the Bar of this Court, I respectfully JUSTICE FORTAS XXI request that the resolutions presented to you in honor and celebration of the memory of Justice Fortas be accepted by this Court. The Chief Justice said: Mr. Attorney General and Mr. Solicitor General, the Court thanks you on behalf of the Bar for your presentations today in memory of our late colleague and friend, Justice Fortas. We ask that you convey to Chairman Koven and the members of the Committee on Resolutions our profound appreciation for these very appropriate resolutions. Your motion that these resolutions be made a part of the permanent records of the Court is granted. These resolutions of the Bar of the Court that you have presented, Mr. Solicitor General and Mr. Attorney General, reveal a man who, for all his skills as an advocate and for all his fine professional standing as a lawyer and as a Justice of this Court, was far more than a legal technician. There’s very little to add to the resolutions you have presented in terms of Abe Fortas’ career as a Justice, as a lawyer and as a public figure. In many respects, he was cut of the same cloth as so many of those Eighteenth Century figures in our history who were as much at home in the corridors of government as in the courtroom or in the concert hall. His services in government, as the resolutions have told us, began very early in his life, and very soon won him national recognition. He was always vigorous in his support of or in his opposition to measures and to people when he disagreed. His public rebuke of Senator Wayne Morse can really be appreciated best by the generation who remember Senator Wayne Morse as one of the powerful figures in the Congress of the United States, and as a leading spokesman for liberal causes. Few people cared and even fewer dared to cross swords with Wayne Morse in public debate. And Abe Fortas’ courageous opposition to the internment of Japanese Americans that has been referred to in the resolutions was another XXII JUSTICE FORTAS example of his willingness to oppose popular trends, including the entire force of President Roosevelt’s administration. I first became personally acquainted with Abe Fortas when I served on the Court of Appeals and worked with him on Circuit Judicial Conference Committees. He had returned to private practice by the time I came to this Court, and when we reactivated the important Judicial Conference Committee to review the appellate rules, I asked him to serve on it and he accepted. In private conversations with him, I found that he shared the view that judges and lawyers had a great obligation to work together to reduce the steadily mounting costs of appeals as cases became more complex and as the cost of printed records sometimes ran into literally small fortunes. Here his quick grasp of the realities, his vast experience in the law made him a very valuable contributor to the work of that Committee. Abe Fortas was deeply involved, as the resolutions have indicated, in the political life of the country much of his life, especially in the earlier years. But one could not accurately say he was a politician, as that term is commonly used in Washington. He was surely no hail fellow well met. He saved his warmth for his friends and his close associates. Yet, he played an important role in the political life on the level of ideas and issues, beginning with the stirring days of the New Deal. One can easily visualize Abe Fortas as counsel to the truculent Harold Ickes, seeking to restrain the public outbursts of that dynamic curmudgeon, as the Solicitor General’s resolution has described him, in order to protect the Secretary and enhance his effectiveness in government. Abe Fortas’ role in the political life of his times was largely on an intellectual level, as I have suggested. And as with any advocate, he performed with great zest and vigor on behalf of the young Lyndon Johnson in the Texas litigation that the Solicitor General has referred to. And, of course, we know the result of that case was to place Lyndon Johnson on JUSTICE FORTAS XXIII the ballot for United States Senator and open his national political career. I have said that Abe Fortas was as much at home in the corridors of government as in the courtroom, but that description fails to describe the complete man. From his childhood, he loved music and he never did forsake his beloved violin. Yet, it would have been unnatural for a fine musician, possessing the great talent that he exhibited, to confine his interest in the arts simply to music. Quietly and effectively he supported many causes of the arts on a broad scale, notably, the Kennedy Center, and it was his participation, at the request of President Johnson, that led to the Smithsonian Institution acquiring the great Hirshhom collection—and that was an essential step, for the project was not without vigorous opposition. The Solicitor General has referred to the final appearance of Abe Fortas as an advocate in this Court, and that came shortly before his death. That was the kind of case that called for his large grasp of the realities and the practicalities of the business of government, as well as an acute understanding of the relevant law. A unanimous Court found in favor of Puerto Rico, one of his long-time clients. Those who knew Abe Fortas as a cool, if not sometimes even a cold, steely advocate in the competitive arenas of the law and of government would have been somewhat baffled, I think, to have seen him as part of a string quartet with his musician friends in a private home. These groups, as the resolutions have noted, sometimes included some of the leading figures in the world of music, Isaac Stem, Judith Serkin, Leonard Rose. Abe Fortas was as much at home with the music of Brahms, Mozart and Rachmaninoff as with the treatises of Lord Coke and of Maitland. Although he was a very private person, he did not make a point of concealing his love for and the practice of music or his interest in the arts. Neither did he flaunt it or exploit it. His love of the arts was a sincere expression and it tells something about the breadth of the man and of his interests. XXIV JUSTICE FORTAS I was present, as many of you were, at the musicial memorial tribute in May at the Eisenhower Theater when some of the great artists of America paid tribute to this man with their music. We heard Isaac Stem, Slava Rostropovich and others who had shared private musical evenings with him. They played the Andante Movement from Mozart’s String Quintet, one of Abe Fortas’ favorites. It was their way of paying tribute to an Eighteenth Century man of the arts who was also a Twentieth Century man of the Law. Abe Fortas will be missed, not just by his life companion, Carolyn, and by his family and his friends and colleagues at the Bar, but by all those who have tried to make our Nation’s Capital a center for the beauty and serenity so essential today in the turbulent world that we live in. In a day of specialists and specialization, he will be remembered for his contributions on many levels. As his love of the arts and music enriched his life, it served also to enrich the life of this great city and of our country. TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1976 edition. Cases reported before page 801 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 801 et seq. are those in which orders were entered. Opinions reported on page 1301 et seq. are those written in chambers by individual Justices. Page AtiX........................................................... 1021 Abbitt v. Jordan................................................ 975 Abbitt v. Saied................................................. 975 Abbott & Associates, Inc.; Illinois v..................... 1012,1031 Abed; A. H. Robins Co. v...................................... 1171 Abramson; Federal Bureau of Investigation v..................... 812 Abshire; Rose v................................................ 1020 Ackerman v. DeLesstine......................................... 1017 Acme Quilting Co. v. Perfect Fit Industries, Inc................ 832 Adams v. Ballentine............................................ 1213 Adams v. Florida................................................ 882 Adams; Mennonite Bd. of Missions v............................. 903 Adams v. United States.......................................... 877 A & D Davenport Transportation, Inc. v. NLRB................... 1108 Addicks v. Cupp................................................. 842 Adkins v. Bordenkircher......................................... 853 Adkins; Bordenkircher v......................................... 878 Aerospace Corp.; Kalin v........................................ 804 Aetna Life & Casualty Co. v. Gurnee............................. 837 Agrillo-Ladlad v. United States................................. 829 Agsalud; Black Construction Corp. v............................ 1011 Ahr; Smith v.................................................... 859 Ahrendt v. United States....................................... 1147 A. H. Robins Co. v. Abed....................................... 1171 Aice v. South Carolina.......................................... 943 Aiken v. Citizens & Southern Bank of Cobb County................ 973 Air Express International Corp. v. National Labor Relations Bd. 835 Akron v. Akron Center for Reproductive Health, Inc.......... 814,940 xxv XXVI TABLE OF CASES REPORTED Page Akron; Akron Center for Reproductive Health, Inc. v........ 814,940 Akron; Crooks v............................................... 947 Akron Center for Reproductive Health, Inc. v. Akron....... 814,940 Akron Center for Reproductive Health, Inc.; Akron v........ 814,940 Alabama; Box v............................................... 1147 Alabama; Cook v.............................................. 1207 Alabama; Daniels v........................................... 1073 Alabama; Davis v............................................. 1019 Alabama v. Dickerson.......................................... 878 Alabama; Hinson v............................................ 1039 Alabama; Holcombe v. ......................................... 945 Alabama; Irwin v.............................................. 971 Alabama; Moore v............................................. 1041 Alabama; Stoner v............................................ 1128 Alabama ex rel. Forresster; Moody v......................... 1226 Alabama Furniture Co. v. Still.......................... 1093,1128 Alaska v. Boise Cascade...................................... 1156 Albano v. United States...................................... 1012 Albaugh v. Wood............................................... 972 Albert v. Pennsylvania........................................ 847 Alberta Gas Chemicals, Ltd. v. Celanese Corp............ 1092,1229 Alderson; Clark Oil & Refining Corp. v....................... 1205 Aldoupolis v. Massachusetts................................... 864 Aldridge v. Ohio.............................................. 841 Alexander v. Texas........................................... 1148 Alexander v. United States.................................... 876 Alexander v. White Earth Band of Chippewa Indians............ 1070 Alexandra v. United States.................................... 835 Alfonso v. Board of Review, Dept, of Labor & Industry of N. J. . 806 Alford; Barnett v. ........................................... 843 Alhambra City School Dist.; Routtenberg v..................... 1176 All-American Transport, Inc.; Pantoja v...................... 1172 Allan; Todd Shipyards Corp. v................................ 1034 Allard v. Benner............................................. 1111 Allegheny County School Bd. v. Hoots.......................... 824 Allen; Marshall Field & Co. v................................ 1207 Allen v. McCutcheon.......................................... 1044 Allen; Mueller v..................... 820,1033,1085,1100,1144,1196 Allen v. United States........................................ 876 Alleyn; Leathersmith of London, Ltd. v....................... 1209 Allsbrook; Hedrick v.......................................... 850 Allsbrook; Smart v........................................... 1218 Allstate Ins. Co.; Brady v................................... 1038 TABLE OF CASES REPORTED XXVII Page Allstate Ins. Co.; Karam v................................... 1070 Allstate Ins. Co.; Kuchta v............................. 1106,1229 Aloha Airlines, Inc. v. Director of Taxation of Haw.......... 1101 Aioi, In re................................................... 819 Alonzo v. United States...................................... 1021 Altman v. United States...................................... 1209 Alvarez v. Florida........................................... 1208 Alvarez v. Wainwright......................................... 968 Alvarez-Rodriguez v. United States............................ 871 Alvestad v. Monsanto Co...................................... 1070 Amada Enterprises v. National Labor Relations Bd.............. 864 Amalgamated. For labor union, see name of trade. Ambassador College v. Geotzke................................. 862 Americana Healthcare Corp. v. Schweiker...................... 1202 American Bank & Trust Co. v. Dallas County ... 941,966,1098,1142,1195 American Cast Iron Pipe Co.; Wrenn v.......................... 852 American Cyanamid Co. v. Oil Workers.......................... 905 American Electric Power Service Corp.; Am. Paper Inst. v. 904,1099,1196 American Electric Power Service Corp.; FERC v........ 904,1099,1196 American Express International Banking Corp.; Sabet v...... 858 American Future Systems, Inc.; Pennsylvania State Univ. v. .... 1093 American Ins. Co.; A. W. L, Inc. v........................... 1170 American Laundry Press Co. v. Rexrode......................... 862 American Motorists Ins. Co.; Wooten v........................ 1202 American National Bank v. Equal Employment Opportunity Comm’n 923 American Paper Institute v. Am. Elec. Power Serv. Corp. 904,1099,1196 American Stock Exchange, Inc.; Walck v....................... 1100 American Telephone & Telegraph Co.; Eagle v.................. 1071 American Telephone & Telegraph Co. v. Phonetele, Inc....... 818,1145 American Trucking Assns., Inc. v. Larson..................... 1036 Amfac Foods, Inc. v. Ore-Ida Foods, Inc....................... 989 Amis v. Internal Revenue Service.............................. 905 Amoco Oil Co.; Checkrite Petroleum Inc. v..................... 833 Amon v. United States......................................... 825 Amtrak; Dunn v. ............................................. 1039 Amtrak; Franks v............................................. 1070 Amusement & Music Operators Assn. v. Copyright Royalty Tribunal 907 Andale Co.; Toson v...................................... 913,1024 Anderson v. Bonin............................................ 1043 Anderson; Carter v............................................ 874 Anderson; Echols v............................................ 850 Anderson; Fisher v............................................ 801 Anderson; Gavin v. ......................................... 973 XXVIII TABLE OF CASES REPORTED Page Anderson v. Harless........................................... 4 Anderson v. New Jersey..................................... 1212 Anderson; Parker v........................................... 828 Anderson v. Spalding....................................... 1175 Anderson v. Washington...................................... 842 Andreas; Illinois v.......................................... 904 Andrews v. District of Columbia............................. 909 Andrews; Giacobbe v......................................... 801 Andrews v. Hughes........................................... 962 Andrews v. North Carolina................................... 946 Andrews; Timmons v.................................... 862,1093 Andrus Energy Corp. v. United States......................... 831 Angle v. Bowen............................................. 1210 Animal Matters Hearing Bd.; Neumaier v....................... 970 Anonymous v. O’Brien.................................... 968,1093 Anselmi; Scholl v............................................ 805 Antelman v. DeCataldo........................................ 906 Anthony Plaza, Ltd.; Hargett v. ............................ 1043 Anti-Monopoly, Inc.; CPG Products Corp. v................... 1227 Antonelli v. Illinois Bell Telephone Co..................... 1150 Antonelli v. Lippman........................................... 869 Antonelli v. United States.................................. 1073 Apel v. Wainwright.......................................... 1147 Apodaca v. United States....................................... 823 April Investments, Inc.; Old Mountain Properties, Ltd. v... 909 Aquila v. United States..................................... 1173 Archibong v. United States.................................. 1040 ARCO Polymers, Inc. v. Oil Workers............................. 828 Arellanes v. Hadden............................................ 849 Argonaut-Southwest Ins. Co.; DeBattista v...................... 836 Arizona v. Ash Grove Cement Co.......................... 903,1190 Arizona; Blazak v............................................ 882 Arizona v. California............................... 811,940,1012 Arizona; Jones v............................................. 911 Arizona v. Kaiser Cement & Gypsum Corp.................. 961,1191 Arizona; Manypenny v........................................... 850 Arizona v. McGraw-Hill, Inc.................................. 909 Arizona v. Navajo Tribe................................. 821,1084 Arizona v. San Carlos Apache Tribe...................... 821,1084 Arizona; Tison v........................................ 882,1024 Arizona v. U. S. District Court......................... 961,1191 Arizona Corporation Comm’n; Evans v........................ 808 Arizona Elec. Power Coop., Inc. v. Mid-Louisiana Gas . 820,1032,1067,1099 TABLE OF CASES REPORTED XXIX Page Arizona Governing Comm, for Annuity & Comp. Plans v. Norris . 904 Arizona State Dental Assn.; Boddicker v. ...................... 837 Arizona Superior Court; KPNX Broadcasting Co. v............... 1302 Arkansas; Ford v.............................................. 1022 Arkansas; Gruzen v............................................ 1020 Arkansas; Hall v.............................................. 1109 Arkansas; Hill v. ............................................. 882 Arkansas; Jennings v........................................... 862 Arkansas; Lascano v. .......................................... 942 Arkansas v. Mississippi........................................ 940 Arkansas; Oklahoma v........................................... 812 Arkansas; Ransom v............................................ 1018 Arkansas; Ruiz v............................................... 882 Arkansas; Singleton v. ........................................ 882 Arkansas; Thomas v............................................ 844 Arkansas; Tillman v........................................... 1201 Arkansas; Vinston v............................................ 833 Arkansas; Walker v........................................... 975 Arkansas; Williams v......................................... 1042 Arlington County v. United States.............................. 801 Armijo v. Jensen............................................... 838 Armijo v. Tandysh............................................. 1016 Armijo-Martinez; United States v............................... 810 Armstrong v. United States............................... 1102,1207 Armstrong v. Washington.................................. 1089,1189 Army and Air Force Exchange Service; Symanowicz v........... 1016 Arnold; Missouri v............................................ 1193 Arnold v. Ohio................................................. 841 Aronsen; Crown Zellerbach Corp. v............................. 1200 Arrandale v. United States..................................... 828 Arredondo v. Estelle........................................... 856 Arrington v. New York Times Co................................ 1146 Arroyo; Jones v............................................... 1048 Arthur; Stokes v............................................... 870 Arthur Young & Co. v. M. Bryce & Associates, Inc............... 944 Arthur Young & Co.; United States v. ......................... 1199 Artis v. California............................................ 942 Artuso v. New York............................................. 908 Asam v. Poodle Palace..................................... 859,1189 Asam v. Stanley........................................... 859,1189 ASARCO Inc. v. Idaho State Tax Comm’n.......................... 961 Ashcroft v. Department of Interior............................ 1201 Ashcroft v. Planned Parenthood Assn, of Kansas City, Mo., Inc. 814 XXX TABLE OF CASES REPORTED Page Ashcroft; Planned Parenthood Assn, of Kansas City, Mo., Inc. v. 814 Ashe; Commonwealth National Bank v............................. 1082 Ash Grove Cement Co.; Arizona v............................ 903,1190 Ashland Oil, Inc.; Phillips Petroleum Co. v. ................... 825 Ashmore v. Tarrant County...................................... 1038 A. S. Horner, Inc. v. National Labor Relations Bd.............. 1201 Associated General Contractors of America; James Snyder Co. v. 1015 Associated General Contractors of California, Inc. v. Carpenters . 519 Associated Grocers v. National Labor Relations Bd............... 825 Astorga-Torres v. United States................................ 1040 Atari, Inc.; North American Philips Consumer Electronics Corp. v. 880 Atchison, T. & S. F. R. Co. v. Interstate Commerce Comm’n .... 1096 Atherton v. Falcone, Gary & Rosenfeld, Ltd..................... 1215 Atkins; Weser v. .............................................. 1109 Atlanta Gas Light Co. v. Department of Energy................... 836 Atlas Tile & Marble Co. v. Shahady............................. 1146 Attia v. Internal Revenue Service............................... 877 Attorney General; Busbee v.................................... 1166 Attorney General; Irish People, Inc. v......................... 1172 Attorney General; Keith v. .................................. 1204 Attorney General; McClellan v. ................................. 947 Attorney General; McDermott v................................... 864 Attorney General; Meeker v..................................... 1208 Attorney General; Weigang v. ................................... 851 Attorney General of Ill.; Cramer v............................. 1016 Attorney General of Mass.; Bailey v. ................ ..... 970 Attorney General of Mich.; Doe v.............................. 1183 Attorney General of Mo. v. Planned Parenthood Assn, of K. C. .. 814 Attorney General of Mo.; Planned Parenthood Assn, of K. C. v... 814 Attorney General of N. J.; Perlman v. ......................... 1081 Attorney General of N. J.; Rodziewicz v........................ 872 Attorney General of Ohio v. Krause.............................. 823 Attorney General of S. C.; Ross v. ............................. 914 Attorney General of Va.; Simopoulos v.......................... 1140 Attorney Registration and Disciplinary Comm’n; Grant v..... 838 Auerbach v. United States....................................... 911 Aurelius; Stoneman v... 913,1024 Aurora County v. Olgilvie...................................... 1204 Austin; Lynn v. ................................................ 874 Austin v. United States........................................ 994 Autry v. Texas.................................. <............ 882 Auwaerter, In re..................................I............. 984 Avance; Smith v..................................