Document Type

Book Chapter

Publication Date

1969

Abstract

Lawyers who practice regularly before the Supreme Court are likely to prepare their arguments with a specific Justice in mind. The choice does not necessarily tum on who might be the swing vote in a given case. Often it is just a matter of which Justice can be relied upon, because of his particular interests and his insight, to search out the strengths and weaknesses of the opposing positions, and to see that all the hard questions are asked. In a labor case during the early years of the Warren Court, that would usually have meant Justice Frankfurter. Later on, depending on the circumstances, it might have been Justice Harlan or Brennan or Fortas. It has probably never been the Chief Justice.

Yet now as I look back upon the whole sweep of the Warren Court's labor decisions over the past decade and a half, I am struck by the sudden suspicion that many members of the Supreme Court's labor bar may have outsmarted themselves. They were, perhaps, like the fabled fox who knew many things; they failed to recognize that it was the Chief Justice who knew the One Big Thing. For the major contribution of the Warren Court to the development of labor law has not depended on the kind of subtle statutory interpretation that is needed to wend one•s way through the labyrinthine secondary boycott passages of the Taft-Hartley Act. Instead, the Court's main achievement in the labor field involved a simple but fundamental restructuring of intergovernmental relations. What the Court did, in a series of decisions that were hotly controverted at the time but have quietly won general acceptance since, was to nationalize the regulation of labor relations in industries affecting interstate commerce. The Court's action reflected the same characteristically audacious Warren appToach toward established state institutions which was displayed in dealing with reapportionment and civil rights.

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