nated to the primary question-the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.13 The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.14

It is so ordered.

Senator ERVIN. Will you find the exact passage?

I am not complaining about that decision. There are a number of other ones. And I am going to mention only one which is the case of Williams v. North Carolina, which I had the task of trying the second time that it was tried in the courts of North Carolina.

In this case the Supreme Court repudiated a long line of decisions which is illustrated by Haddock v. Haddock which held that the full faith and credit clause of the Constitution did not require a court to recognize the validity of divorce obtained upon substituted service unless the divorce was rendered by the State which was the State of matrimonial domicile.

As the Associate Justice said in that case:

They recognize the right of the State and compelled another State to accept the exercise of the power to dissolve a marriage by a process by which— he said— ·

they disturbed settled family relationships by a procedure which we would not recognize if the suit were one to collect a grocery bill.

In other words, in that case a man left North Carolina, left his wife without any knowledge of where he had gone, went to the State of Nevada, stopped at a motor court, stayed there 6 weeks, brought his suit for divorce, published the notice in the Nevada paper, and got a divorce.

And the court held that if he had any residence in Nevada that North Carolina had to recognize that destroyed his wife's right to share in his property, destroyed her right to receive support at his hands, notwithstanding the fact that she did not even know where he was and did not know that the decree had ever been handed down, did not know that the suit was pending.

Which is another case where they changed the established law in order to substitute the personal notions of the majority of the Court

13 "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

"(a) would a decree necessarily follows providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice; or

(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

"5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (b) — "(a) should this Court formulate detailed decrees in these cases;

"(b) if so, what specific issues should the decrees reach;

"(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

"(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees-"

14 See Rule 42, Revised Rules of this Court (effective July 1, 1954).

for what had been adjudicated to be the law of the land in times past. Senator O'MAHONEY. When was that case handed down?

Senator ERVIN. It was handed down sometime around 1940-I might miss a year one way or the other.

The order ought to have held in that case on the facts there was no evidence of any kind of residence in Nevada.

The second time I tried it and put that question to the jury. The North Carolina jury having more gumption than the Supreme Court of the United States, they nullified the effect of that deicsion in that particular case and holding no residence, which the Court ought to have held on the evidence in the case because there was no evidence of residence.

Now, not only has the Supreme Court of the United States usurped the power of Congress and the States to amend the Constitution, but it has time and again nullified during recent years congressional acts. The most remarkable case of that kind, the most glaring one I call it, is Girouard v. The United States.

I happened to be in the Court the day that opinion was handed down in 1956. That was the day that Chief Justice Stone suffered his fatal heart attack. And I have never been able to escape the conviction that all of the pain in the heart of Chief Justice Stone on that day was not physical.

There was a decision in construing the act of Congress which provided that no person could become a citizen of the United States unless they were willing to take an oath which pledged them to support the Constitution of the United States against all enemies both foreign and domestic.

Three times that question has been before the Supreme Court of the United States, during the preceding 25 years, as to whether or not the oath adopted by the Immigration authorities was consistent with the statute. And that oath was that a person was required to take an oath to bear arms if need be in defense of the United States before they could become a citizen of the United States.

Now that interpretation was clearly correct because it is not only an actual impossibility but a linguistic impossibility for anybody to defend the United States or its Constitution against all of its enemies if he is unwilling to bear arms against an enemy who comes to destroy the United States by force or violence. Notwithstanding the fact that there were three decisions of the Supreme Court approving that interpretation of the statute and notwithstanding the fact that every time Congress had met there had been a bill introduced to change that statute, and every time Congress had rejected the bill or failed to act on it, and notwithstanding the fact that Congress had reenacted the law in exactly the same terms after it had been so construed three times by the Supreme Court, the majority of the Supreme Court on that day overruled that decision.

And the reason they overruled that decison was because the majority of them did not like the way in which Congress had exercised its constitutional power to legislate.

To be sure they did not say that "We are overruling these previous decisions, and putting a new construction on an act that has been three times construed, because we don't like the way that Congress has legislated." But I tell you if they had said that it would have been a

far better reason than any of the reasons they gave which I will not stop to enumerate.

That is the reason they did it. No one can read those opinions and the dissenting opinion of the very able dissenting Chief Justice Stone without coming to that conclusion.

Senator LANGER. What was the vote on that?

Senator ERVIN. About 5 to 4, as I recall it.

I want to go a little further here. I am passing from these revolutionary decisions on constitutional questions and statutory subjects. The Supreme Court of the United States during recent years has substantially impaired the doctrine of stare decisis and the stability of the law of the land which this doctrine formally insured by overruling, repudiating, or ignoring its established precedence of earlier years. Former Justice Owen J. Roberts-the late Justice Owen J. Roberts, made this comment in this connection in his dissenting opinion in Smith v. Allright:

The reason for my concern is that the instant decision overruling that announced about 9 years ago tends to bring adjudication of this tribunal into the same class as the restricted railroad ticket good for this day and train only.

I want to say, as a man who spent 30 years in connection with, and active years in the administration of justice as a practicing lawyer, and as a judge, that I am firmly convinced that law is absolutely destitute of social value unless it has some stability, and unless it can be ascertained by a study of the precedence which laid down the law, because as lawyers we are told that law is a rule of action. And certainly a lawyer cannot guide his clients as to their action, if law is so unstable that a court has no respect for its own prior decisions. And the decisions of the court, as Mr. Justice Roberts said, are as “like a restricted railroad ticket."

I could go into a great many of these decisions but it would take up time of the committee unnecessarily.

The Supreme Court during recent years has handed down a line of decisions which are wholly inconsistent with the constitutional principle that the States of the Union are indestructible.

This is particularly true in the field of criminal law. I might add in connection with that, in the field of criminal law the Supreme Court of the United States has virtually abolished the doctrine of res adjudicata, insofar as the trial of criminal cases in State courts is concerned.

Under the doctrine of res adjudicata, and in its rightful sense as it has been applied throughout the generations, a judgment of a court is conclusive, not only as to the things which were actually litigated but it is conclusive as to the things which could have been litigated within the purview of the issues involved.

The Supreme Court has handed down a great many decisions which have for years afterward permitted the reopening of cases and relitigating of matters in State courts on things which could and should have been dedicated in the original case.

Then another line of decision which is particularly destructive of the capacity of the States to enforce their own laws with reasonable dispatch in their own efforts against their own citizens has been this line of decision in which the Supreme Court has overemphasized during recent years, giving the lowest Federal judge the right to nullify

upon a writ of habeas corpus the decision of the highest courts of the State.

These decisions have made it extremely difficult for the State courts to enforce criminal laws of the States in the States' own courts against the citizens of the States. And they have gone so far as to allow the lowest Federal judges to nullify the decision of the highest courts of the State, even in cases where application was made to the Supreme Court of the United States to review the original decision of the Supreme Court of the State on the writ of certiorari which has been denied by the Supreme Court of the United States itself.

When I protest about these matters I am not a lone voice crying in a legal wilderness.

In August 1954 the chief justices of the 48 States of the Union passed a unanimous resolution appealing to this Congress to pass a law to curtail the practice of the lowest Federal courts of nullifying the decisions of the highest court of the State. And a bill to that effect has passed the House at this time and is now pending before this committee. And this committee ought to take and report that bill out favorably and let it be passed at this session. These are not things in times past, all of the complaints I have about the Supreme Court of the United States.

I want to call your attention to three decisions at the current time. The first one is Chessman v. Teets, reported in volume 350, at page 3. In this case, apparently, I do not know what the defendant was, but I assume he was a resident of California. If that assumption is correct, then you have this situation:

The trial court of the State of California tried a resident of California for committing a capital felony under the law of California. The defendant was sentenced to death. He appealed to the Supreme Court of California, which affirmed the judgment.

Then after that he went into the district court in California, the lowest Federal court sitting in California, upon a petition alleging that at the time the Supreme Court of California passed upon his appeal it had a false record before it as to what had transpired in the trial court; that the falsity of the record was due to the collusion between the prosecuting attorney and the court reporter.

Now, the district judge out in California dismissed the petition. And the circuit court affirmed that decision. And it came up here to this Court. And in a per curiam decision the Supreme Court of the United States held, on October 17, 1955, that the circuit court had erred in affirming the judgment of dismissal by the district court and the district court had erred in failing to go in and determine this question of fact, whether or not the Supreme Court of California had a true record before it at the time it passed on this appeal. Now, mind you, they cite in support of this decision Mooney v. Houlihan in the 294 United States Report at 103.

There is not a syllable in this case, the Chessman case, to the effect that this man had ever made any application to the Supreme Court of California, or to any of the courts of California, to determine whether or not the record which the Supreme Court of California had before it at the time it affirmed the appeal was a false or true record, but they cite this case to sustain their ruling, a case which dismissed a similar petition, on the grounds that the courts of California were presumed to be interested in enforcement of the law and

enforcement of the 14th amendment, and that the Federal courts would not entertain jurisdiction unless and until all State remedies had been first used.

There is not a suggestion in the Chessman case that this man had to make any application to the Supreme Court of California or to the other courts of California for relief.

Senator WILEY. The point was not raised in the Supreme Court of California at all?

Senator ERVIN. No; entirely a new thing.

In other words, if the district courts are going to have the power to determine, in the first instance, the question whether or not the highest court in the State had a true or false record before it, then passed on an appeal from one of its own trial courts, we have come to the day when the States are no longer indestructible.

We may have an indissoluble Union but, certainly, not composed of indestructible States.

Senator MCCLELLAN. Let me ask you a question. I am not familiar except by newspaper reports.

Would that not mean any final adjudication in any State can reach its way to the Supreme Court of the United States simply by an allegation in a lower Federal Court to the effect that the decision of the court was based on a false record?

Senator ERVIN. Absolutely. I mean that every case that is tried in the State trial court and is affirmed by the highest court of the State can be relitigated in the trial court to determine whether the courts of the State had a true record. The Supreme Court had a true record before it.

I want to talk about two other decisions briefly.

Senator WILEY. Was there anything else in the case, or just that point?

Senator ERVIN. That is all it alleges. It is very short. It is a per curiam decision. Did not even give it the dignity of writing out a full opinion.

Senator WILEY. Did the lower Federal court dismissing it give an opinion to the effect that there were no facts to establish the allegation?

Senator ERWIN. Said it did not state a cause of action. And presumably it does not appear, but the case cited to sustain this ruling holds exactly opposite on that kind of an allegation, that the Federal courts have no jurisdiction in the first instance.

We have some bases here. I studied a little law in North Carolina and attended Harvard and sat at the feet of Mr. Warren, quite a celebrated teacher there. And "Bull" Warren used to ask the students questions:

"Now, Mr. So and So, when you answer that question, make a noise like a lawyer."

I want to call attention and discuss very briefly the case of Pennsylvania against Nelson which was handed down on April 2, 1956, which is the so-called Sedition case.

Out in that case Steve Nelson had been convicted under the sedition law of the State of Pennsylvania. And the Supreme Court started out and made me think of "Bull" Warren's statement, because it started out making a noise like a lawyer.