Smith v. Allwright/Separate Roberts

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Smith v. Allwright by Owen Josephus Roberts
Separate Opinion
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Separate Opinion
Roberts


MR. JUSTICE ROBERTS.

In Mahnich v. Southern Steamship Co., 321 U.S. 96, I have expressed my views with respect to the present policy of the court freely to disregard and to overrule considered decisions and the rules of law announced in them. This tendency, it seems to me, indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors. I shall not repeat what I there said, for I consider it fully applicable to the instant decision, which but points the moral anew.

A word should be said with respect to the judicial history forming the background of Grovey v. Townsend, 295 U.S. 45, which is now overruled.

In 1923, Texas adopted a statute which declared that no negro should be eligible to participate in a Democratic Primary election in that State. A negro, a citizen of the United States and of Texas, qualified to vote, except for the provisions of the statute, was denied the opportunity to vote in a primary election at which candidates were to be chosen for the offices of senator and representative in the Congress of the United States. He brought action against the judges of election in a United States court for [p667] damages for their refusal to accept his ballot. This court unanimously reversed a judgment dismissing the complaint and held that the judges acted pursuant to State law and that the State of Texas, by its statute, had denied the voter the equal protection secured by the Fourteenth Amendment. Nixon v. Herndon, 273 U.S. 536 (1927).

In 1927, the legislature of Texas repealed the provision condemned by this court and enacted that every political party in the State might, through its Executive Committee, prescribe the qualifications of its own members and determine in its own way who should be qualified to vote or participate in the party, except that no denial of participation could be decreed by reason of former political or other affiliation. Thereupon, the State Executive Committee of the Democratic Party in Texas adopted a resolution that white Democrats, and no other, should be allowed to participate in the party's primaries.

A negro whose primary ballot was rejected pursuant to the resolution sought to recover damages from the judges who had rejected it. The United States District Court dismissed his action and the Circuit Court of Appeals affirmed, but this court reversed the judgment and sustained the right of action by a vote of 5 to 4. Nixon v. Condon, 286 U.S. 73 (1932).

The opinion was written with care. The court refused to decide whether a political party in Texas had inherent power to determine its membership. The court said, however: "Whatever inherent power a state political party has to determine the content of its membership resides in the state convention," and referred to the statutes of Texas to demonstrate that the State had left the Convention free to formulate the party faith. Attention was directed to the fact that the statute under attack did not leave to the party convention the definition of party membership, but placed it in the party's State Executive Committee, which could not, by any stretch of reasoning, be [p668] held to constitute the party. The court held, therefore, that the State Executive Committee acted solely by virtue of the statutory mandate and as delegate of State power, and again struck down the discrimination against negro voters as deriving force and virtue from State action — that is, from statute.

In 1932, the Democratic Convention of Texas adopted a resolution that

all white citizens of the State of Texas who are qualified to vote under the Constitution and laws of the state shall be eligible to membership in the Democratic party, and, as such, entitled to participate in its deliberations.

A negro voter qualified to vote in a primary election, except for the exclusion worked by the resolution, demanded an absentee ballot which he was entitled to mail to the judges at a primary election except for the resolution. The county clerk refused to furnish him a ballot. He brought an action for damages against the clerk in a state court. That court, which was the tribunal having final jurisdiction under the laws of Texas, dismissed his complaint, and he brought the case to this court for review. After the fullest consideration by the whole court, [*] an opinion was written representing its unanimous views and affirming the judgment. Grovey v. Townsend, 295 U.S. 45 (1935).

I believe it will not be gainsaid the case received the attention and consideration which the questions involved demanded, and the opinion represented the views of all the justices. It appears that those views do not now commend themselves to the court. I shall not restate them. They are exposed in the opinion, and must stand or fall on their merits. Their soundness, however, is not a matter which presently concerns me. [p669]

The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject. In the present term, the court has overruled three cases.

In the present case, as in Mahnich v. Southern S.S. Co., the court below relied, as it was bound to, upon our previous decision. As that court points out, the statutes of Texas have not been altered since Grovey v. Townsend was decided. The same resolution is involved as was drawn in question in Grovey v. Townsend. Not a fact differentiates that case from this except the names of the parties.

It is suggested that Grovey v. Townsend was overruled sub silentio in United States v. Classic, 313 U.S. 299. If so, the situation is even worse than that exhibited by the outright repudiation of an earlier decision, for it is the fact that, in the Classic case, Grovey v. Townsend was distinguished in brief and argument by the Government without suggestion that it was wrongly decided, and was relied on by the appellees not as a controlling decision, but by way of analogy. The case is not mentioned in either of the opinions in the Classic case. Again and again, it is said in the opinion of the court in that case that the voter who was denied the right to vote was a fully qualified voter. In other words, there was no question of his being a person entitled under state law to vote in the primary. The offense charged was the fraudulent denial of his conceded right by an election officer because of his race. Here, the question is altogether different. It is whether, in a Democratic primary, he who tendered his vote was a member of the Democratic Party. [p670]

I do not stop to call attention to the material differences between the primary election laws of Louisiana under consideration in the Classic case and those of Texas which are here drawn in question. These differences were spelled out in detail in the Government's brief in the Classic case and emphasized in its oral argument. It is enough to say that the Louisiana statutes required the primary to be conducted by State officials and made it a State election, whereas, under the Texas statute, the primary is a party election conducted at the expense of members of the party and by officials chosen by the party. If this court's opinion in the Classic case discloses its method of overruling earlier decisions, I can only protest that, in fairness, it should rather have adopted the open and frank way of saying what it was doing than, after the event, characterize its past action as overruling Grovey v. Townsend though those less sapient never realized the fact.

It is regrettable that, in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this court, which has been looked to as exhibiting consistency in adjudication and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.

Note[edit]

^  The court was composed of Hughes, C.J., Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts and Cardozo, JJ.