Mills v. Alabama/Dissent Harlan
Separate opinion of Mr. Justice HARLAN.
In my opinion the appellant is not here on a 'final' state judgment and therefore under 28 U.S.C. § 1257 (1964 ed.) the Court has no jurisdiction to entertain this appeal. Republic Natural Gas Co. v. State of Oklahoma, 334 U.S. 62, 68 S.Ct. 972, 92 L.Ed. 1212; cf. Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377.
Although his demurrer to the criminal complaint has been overruled by the highest court of the State, the appellant still faces a trial on the charges against him. If the jury  fails to convict-a possibility which, unless the courtroom antennae of a former trial lawyer have become dulled by his years on the bench, is by no means remote in a case so unusual as this one is-the constitutional issue now decided will have been prematurely adjudicated. But even were one mistaken in thinking that a jury might well take the bit in its teeth and acquit, despite the Alabama Supreme Court's ruling on the demurrer and the appellant's admitted authorship of the editorial in question, the federal statute nonetheless commands us not to adjudicate the issue decided until the prosecution has run its final course in the state courts, adversely to the appellant.
Although of course much can be said in favor of deciding the constitutional issue now, and both sides have indicated their desire that we do so, I continue to believe that constitutionally permissible limitations on the jurisdiction of this Court, such as those contained in § 1257 undoubtedly are, should be respected and not turned on and off at the pleasure of its members or to suit the convenience of litigants.  If the traditional federal policy of 'finality' is to be changed, Congress is the body to do it. I would dismiss this appeal for want of jurisdiction.
Since the Court has decided otherwise, however, I feel warranted in making a summary statement of my views on the merits of the case. I agree with the Court that the decision below cannot stand. But I would rest reversal on the ground that the relevant provision of the Alabama statute-'to do any electioneering or to solicit any votes (on election day) * * * in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held'-did not give the appellant, particularly in the context of the rest of the statute (ante, 216, n. 2) and in the absence of any relevant authoritative state judicial decision, fair warning that the publication of an editorial of this kind was reached by the foregoing provisions of the Alabama Corrupt Practices Act. See Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. I deem a broader holding unnecessary.
^1 At oral argument in this Court appellant's counsel conceded that a jury trial was still obtainable, see Ala.Code, Tit. 13, § 326; Tit. 15, § 321 (1958 Recomp.), and that it might result in an acquittal.
^2 Compare Local 438 Construction & General Laborers' Union, AFL-CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, 8 L.Ed.2d 236, and Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523. The three cases cited by the Court, ante, p. 218, fall short of supporting the 'finality' of the judgment before us. None of them involved jury trials, and in each instance the case was returned to the lower court in a posture where as a practical matter all that remained to be done was to enter judgment. What is done today more than over erodes the final judgment rule.