Casey v. United States (343 U.S. 808)/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice REED join, dissenting.

I do not believe we should take our law from the Department of Justice or from any other litigant. The reasons why the Department of Justice confesses error in a case may be wholly honorable. For example, those in the Solicitor General's office may be honestly converted to the point of view which their colleagues opposed below. I assume that is true in the present case. But I also know that litigants usually have selfish purposes. What the motivation behind a particular confession of error may be will seldom be known. We cannot become a paty to it without serving the unknown cause of the litigant. The practice in cases in which the Solicitor General confesses error was settled by Young v. United States, 1942, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832. When the Government confessed error on Young's petition for certiorari, the confession was not accepted but, instead, the petition was granted and the case set down for argument. 1941, 314 U.S. 595, 62 S.Ct. 59, 86 L.Ed. 480. In the unanimous opinion of the Court, two Justices not participating, the function of this Court upon the Government's confession of error was described with particularity:

'The public trust reposed in the law enforcement officers of     the Government requires that they be quick to confess error      when, in their opinion, a miscarriage of justice may result      from their remaining silent. But such a confession does not     relieve this Court of the performance of the judicial      function. The considered judgment of the law enforcement     officers that reversible error has been committed is entitled      to great weight, but our judicial obligations compel us to      examine independently the errors confessed. See Parlton v.     United States, 64 App.D.C. 169, 75 F.2d 772. The public     interest that a result be reached which promotes a      well-ordered society is foremost in every criminal      proceeding. That interest is entrusted to our consideration     and protection as well as that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the     criminal law cannot be left merely to the stipulation of      parties. Cf. Rex v. Wilkes, 4 Burr. 2527, 2551, 98 Eng.Rep. 327; State v. Green, 167 Wash. 266, 9 P.2d 62.' 315 U.S. at     258-259, 62 S.Ct. at page 511, 86 L.Ed. 832.

As a result, the Court proceeded to examine the errors urged by petitioner and, upon consideration of the record, reversed the judgment of the Court of Appeals.

The principles announced in Young v. United States, supra, were expressly reaffirmed in Gibson v. United States, 1946, 329 U.S. 338, 344, 67 S.Ct. 301, 304, 91 L.Ed. 331, cf. Marino v. Ragen, 1947, 332 U.S. 561, 562, 68 S.Ct. 240, 241, 92 L.Ed. 170. Moreover, the practice of this Court in cases in which the Solicitor General confesses error has followed the Young rule. Unlike today's per curiam, our recent per curiam orders and opinions have been careful to note that our reversal of a court of appeals judgment is based upon consideration of the record, not blind acceptance of a confession of error.

We sit in this cse not to enforce the requests of the Department of Justice but to review the action of a lower court. Here the Court of Appeals ruled that petitioners had no standing to complain of the search. That ruling is questionable in view of the intervening decision of this Court in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93. But the confession of error is not limited to that ruling. The Department of Justice now maintains that the District Court was in error in ruling in the government's favor on the issue of search and seizure.

The facts are not in dispute. The only question is the reach of our decision in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. That decision states a principle of constitutional law. Until it is reversed or modified, it prescribes a rule for the courts to apply according to their best lights, not according to the desires of either the prosecution or the defense.

Since the Court of Appeals did not reach that issue when the case was before it, we should at the very least remand the case to it for consideration of that question. If we are to decide it, we should do so only after full exploration of the facts and the law. Whatever action we take is a precedent.

I cannot state too strongly my belief that if the courts are to retain their independence, they must decide cases taken on the merits. A confession of error by a litigant is, of course, an important factor to take into account in studying a record. It may disclose an intervening decision on a question of law that undermines the lower court's conclusion; it may disclose perjury by an important witness or newly discovered evidence; it may disclose other factors which weaken the conclusion of the lower court. Or it may disclose a maneuver to save one case at the expense of another. Once we accept a confession of error at face value and make it the controlling and decisive factor in our decision, we no longer administer a system of justice under a government of laws.