Sherman Minton

The Court he joined had lost Murphy and Rutledge in one summer, and Truman had filled both seats; with Vinson and Burton, his appointees were now four of nine. Within a term the Yale professor George D. Braden had named what replaced it. In "Mr. Justice Minton and the Truman Bloc," in the Indiana Law Journal of 1951, Braden counted the votes of Vinson, Burton, Clark and Minton and put the rule in a sentence: "when the Truman appointees go, they all go together; and as the Truman appointees go, so goes the Court." Minton dissented five times in his first term. The record on this site agrees with Braden. His closest colleague across seven terms was Tom Clark, with whom he voted the same way in 76.2 percent of the divided cases they shared, 395 of them; his furthest was Douglas, at 36.9 percent over 393. Philip Kurland, reviewing Pritchett's study of the Vinson Court in 1954, put it more sharply than Braden had: "If Vinson was a 'leader' at all it was of Mr. Justice Clark and Mr. Justice Minton and perhaps of Mr. Justice Burton." What the New Dealer brought to the bloc was not a change of heart. It was the same conviction he had carried into the fight of 1937, that the elected branches were entitled to what they had enacted, applied now from the other side of the bench. Wallace, his former clerk, wrote in 1959 that he approached the questions before him "primarily as problems of power" and that "if his resolution of some of these problems is open to question, this is not attributable to the absence of intellectual support for his conclusions but to the inherent difficulty of the problems."

His first term produced the two opinions that fixed his reputation. In United States ex rel. Knauff v. Shaughnessy, decided January 16, 1950, a German war bride who had served in the Royal Air Force and worked for the American Army was excluded without a hearing on confidential information, and Minton, for the Court, held that the Attorney General's order was the end of the matter: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Jackson, dissenting with Black and Frankfurter, answered with a sentence that has outlived the case: "Security is like liberty, in that many are the crimes committed in its name." Five weeks later, in United States v. Rabinowitz, the Court upheld the warrantless search of a stamp dealer's one-room office after his arrest, and Minton wrote the rule that governed searches for nineteen years: "The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." Trupiano v. United States, two years old, was overruled to the extent it had said otherwise. Frankfurter, in dissent, observed that "it is small consolation to know that one's papers are safe only so long as one is not at home." Braden, no admirer of the result, called Rabinowitz "honest, good opinion writing"; Chimel v. California overruled it in 1969, and Frankfurter's dissent became the law.

The loyalty years followed the same line. Adler v. Board of Education, argued in the first week of January 1952 and decided on March 3, upheld New York's Feinberg Law, under which membership in an organization the Regents had listed as advocating the overthrow of the government was prima facie ground for disqualification from the schools. Minton's opinion for the Court did not deny that beliefs and associations were at stake; it held that the state could ask about them. Teachers, he wrote, "may work for the school system upon the reasonable terms laid down by the proper authorities of New York," and if they would not, "they are at liberty to retain their beliefs and associations and go elsewhere." "One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty." Douglas answered that the law "inevitably turns the school system into a spying project." Black, Douglas and Frankfurter dissented; Keyishian v. Board of Regents took the opinion apart in 1967. Three months after Adler the steel seizure case came down, and Minton, with Reed, joined the Chief Justice's dissent, standing by the President who had been his seatmate. He did not write in Youngstown. When he wrote in the criminal cases his voice was unmistakable. Lutwak v. United States, in February 1953, concerned veterans who had arranged sham marriages in Paris to bring aliens in under the War Brides Act; asked to reverse for one wrongly admitted statement, he declined in a sentence the memorial resolution would quote back to the Court: "A defendant is entitled to a fair trial, but not a perfect one." The sentence before it is the man: "this record fairly shrieks the guilt of the parties."

The cases that trouble the picture are the race cases, and they trouble it in both directions. In Barrows v. Jackson, decided June 15, 1953, a homeowner was sued for damages for breaking a covenant that barred non-Caucasian occupancy, the device the Court had put beyond equitable enforcement in Shelley v. Kraemer five years before. Minton, for the Court, closed the gap: "The action of a state court at law to sanction the validity of the restrictive covenant here involved would constitute state action as surely as it was state action to enforce such covenants in equity." To reach it he let the seller assert the rights of buyers who were not before the Court, because the rule against doing so was "only a rule of practice" and was "outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained." Vinson dissented alone. Six weeks earlier, in Terry v. Adams, Minton himself had dissented alone, from the other side. The Jaybird Association of a Texas county had for sixty years held a whites-only pre-primary whose winners went on to take the Democratic primary and the general election, and eight justices, in three opinions, held that the Fifteenth Amendment reached it. Minton's dissent began, "I am not concerned in the least as to what happens to the Jaybirds or their unworthy scheme," and went on: "I am concerned about what this Court says is 'state action' within the meaning of the Fifteenth Amendment to the Constitution." What the Association did, he wrote, was "to conduct as individuals, separate and apart from the Democratic Party or the State, a straw vote." David Atkinson, who read the whole record in 1977, drew the line where Minton drew it: he "generally protected minority interests from irrational discrimination only when there was clear and persuasive evidence of direct state action." On the state's own schools there was no line to draw. At the conference of December 12, 1953, as Atkinson reports it from S. Sidney Ulmer's study of the justices' notes, Minton "could simply imagine no valid distinction based on race or color" and "was in favor of outlawing public-school segregation on both equal-protection and due-process grounds." He was one of the nine in Brown. The Statehouse in Indianapolis, where his bust stands, quotes him calling it "the most important decision of the century because of its impact on our whole way of life." What he thought the decision could do is in a letter of June 4, 1955, four days after Brown II, to an old Quaker acquaintance in Portland, Indiana, now in the Indiana Historical Society: "courts are awkward institutions and it is very difficult to enforce their decrees if there isn't reasonable acceptance."

The record on this site puts the numbers to the puzzle Friedman and Israel's chapter set out. The Supreme Court Database codes 658 of his 689 cases, and in them he voted for the liberal outcome 46.0 percent of the time against a bench average of 54.5 in the same cases: a gap of eight and a half points, nineteenth of the thirty-three modern justices by gap and eighteenth of thirty-three by share, the middle of the bench in a Court that had moved right with the Truman appointees and was about to move left again. He dissented in 13.5 percent of his cases, against a bench rate of 19.4; Braden's five dissents in the first term were the beginning of a habit. The areas tell the two halves of the career apart. In the First Amendment cases his liberal share was 26.8 percent against a bench of 54.1, and in criminal procedure 30.9 against 49.7: the loyalty and search cases, exactly where the Senate's New Dealer was expected and failed to appear. In economic regulation he was at 60.9 against 58.0, and in federal taxation at 71.1 against 63.3, above the bench in both: the senator of 1935 voting as he had always voted, for the government's power over business. He did not change. The questions did. The site's drift instrument does not run on so short a tenure, but the term-by-term series behind it shows the last movement of his career: in his first term his liberal share was 43.5 against a bench of 45.4, a gap of two points; in his last full term, 1955, it was 55.0 against 65.6. The Warren Court moved, and Sherman Minton moved with it, a step behind, and the distance between them grew every year he stayed.

The distance was one reason; the other was the anemia. In the resolution's words, by 1956 it "had progressed to the point where it affected his physical balance." Friedman and Israel's chapter records that in his last term "he had been forced to use a cane and had had difficulty concentrating and retaining arguments in his mind." He said so himself. TIME, in the issue of September 17, 1956, printed what he told reporters the day he announced it: "It's hard for me to walk more than a block, and this last term I had to take to a cane." "It affects my power to concentrate and think and retain arguments in my mind." And then the sentence by which he is remembered, when he is: "There will be more interest in who will succeed me than in my passing. I'm an echo." TIME headed the item "An Echo Fades." He added, in the same breath, "It is not an easy place to leave. I hate to go." The retirement took effect on October 15, 1956. The letter his colleagues sent him that day, printed at the front of volume 352 of the United States Reports, is warmer than the form usually allows: "If considerations other than your health had prompted your decision, we would have joined in urging you to remain with us in active service," and they had watched him carry on "without the loss of a single day in recent years, either from the Bench or the Conference." His reply is five sentences, and the third is the one: "It is with much regret that I take my leave of the Court and you, but it is comforting to know that I am still accepted as one of you." Warren announced it from the bench on October 16: "He has been more than our associate. He has been our companion." Eisenhower gave the seat to William Brennan, and the Court that had moved a step ahead of him kept moving.

The verdicts came in at once and they were not kind. Friedman and Israel's chapter, written by 1969, gathers them: Newsweek explained that "On the high bench, Shay Minton's old New Deal fire cooled"; the New York Times of September 9, 1956, in the chapter's summary, suggested that he had not been one of the great creative jurists in our history; the Nation called him "Exhibit A in demonstrating how little lower-court experience benefits a Justice." The chapter's own answer to the puzzle is the one this record supports. The commentators who found him inconsistent, it says, "ignored his own view of the harmony between the two parts of his career": as a senator "he had criticized Justices who had employed their power to destroy programs created by the other branches of the national government," and as a justice "he refused to behave as those anti-New Deal Justices had." It is the referee's letter again, and it is also the limit of the man. "After Chief Justice Vinson died," the chapter concludes, "Minton, in spite of his judicial experience, could not maintain his point of view as the dominant one on the Court. He retired as these views were once again becoming powerful forces in American life." The Bar of 1966 remembered someone the opinions do not show. "The dour judicial face, assumed on the bench and for official portraits, gave little hint of the delightful storyteller, the man of great warmth and deep compassion," its resolution says, and Warren added that "even while suffering from the illness which eventually caused his retirement, he always had a cheerful note in Conference and at our luncheon table."

He went home to the house in Silver Hills, "high above the Ohio River," visited the university at Bloomington, which had named him Professorial Lecturer in Law, sat for the bust the state unveiled in the Statehouse in December 1956, and lived nine more years. He died in New Albany on April 9, 1965, and was buried from Holy Trinity Church three days later. The Court met for him on May 2, 1966, with Thurgood Marshall, then Solicitor General, presenting the resolutions and Warren answering for the bench: "We enjoyed Justice Minton as a colleague; we cherished him as a friend; and we admired him as a dedicated public servant." His papers at the Truman Library are the drafts and notes of the opinions he wrote for the Court and nothing else, some 6,800 pages on cases and not one on the Senate. An echo is what is left of a voice after the voice has stopped. The voice was the Senate's of 1937, insisting that the people's branches be let alone to govern. It had carried the day by the time he reached the Court, and for seven years he was its faithful repetition there, until the Court found new questions the old answer did not fit. He was right about the interest. The seat went to Brennan, and the century followed Brennan. But he was the echo of something, and on the questions of 1937 he had been on the side that won.