A. Jurisdiction
Louis Brandeis’ noted biographer, Alpheus Thomas Mason, echoed the Whitney concurrence when he wrote: “Miss Whitney had not, as she might have done, raised the question whether there was in fact a ‘clear and present danger’ manifest in her acts.” [146] That echo has reverberated down the halls of academe for almost eight decades; it is the conventional wisdom. That “wisdom,” however, both assumes too much and understands too little. For the matter is much more complicated. Brandeis was right to flag jurisdictional problems, but wrong in the way he resolved them.
From the beginning, Whitney was not a case that Brandeis wanted to hear. Recall that the Court first had denied jurisdiction over the appeal, and granted a rehearing only after Whitney’s counsel maintained that the California court’s certificate established jurisdiction. Even then, Brandeis might have been disinclined to hear the case, as revealed in his astute clerk’s 13-page typed memorandum. Had Brandeis’ brethren paid allegiance to the law tendered in James Landis’ memo, Whitney could not have remained on the Court’s docket.
According to that memo, there was no basis for finding a federal question in the Whitney trial and appellate court record. Among the reasons presented, the following were most significant:[147]
No federal claim raised at trial: Examining the trial record, only a demurrer to the information remotely suggested a constitutional claim. The demurrer asserted generally “that the facts stated do not constitute a public offense, for the reason that the purported statute therein referred to is void, invalid, and unconstitutional.” Citing six Supreme Court rulings, Landis emphasized “the doctrine that a mere assertion of unconstitutionality and invalidity will be taken to have had reference to the state and not the federal constitution.”
No federal claim raised by the certificate: Landis found the certificate suspect: “[T]he certificate in this case is really a stipulation by counsel approved by the court (not signed by any member of the court). Its effect is thus considerably weaker than the usual type of certificate signed by the presiding justice of the state court.” Moreover, the certificate alone was “incompetent to originate [a federal] question.” The only value of a certificate was to make more specific the federal claim that was already in the record.[148]
No federal question necessarily decided by the state court: Landis acknowledged that Supreme Court jurisdiction would lie if a state court actually decided a federal question but attempted to conceal its decision by failing to mention the federal claim in its opinion. Regarding the existing state of First Amendment law, however, Landis concluded: “[T]here must be something in the record (including the opinion) that the state court was led to suppose that the plaintiff in error claimed protection under some specific clause of the constitution. In view of the fact that the claim for protection in this case . . . is by no means fully and specifically developed by the decisions of the Supreme Court of the United States, it would seem to be highly erroneous to assume that the state court . . . necessarily decided that the statute was not in conflict with the federal constitution.
Thus, Landis (who would later serve as dean of the Harvard Law School) submitted that Whitney’s writ of error should be dismissed. Surprisingly, Brandeis dismissed the sound advice of his law clerk, and signed onto the majority’s dubious grant of jurisdiction to reach the federal First Amendment claim.
