Cole v. Richardson/Opinion of the Court

The judgment is vacated and the cases are remanded to the United States District Court for the District of Massachusetts to determine whether these cases have become moot.

Mr. Justice HARLAN, with whom THE CHIEF JUSTICE joins, concurring in the result.

The present appeals are from a single action commenced in the Federal District Court for the District of Massachusetts, by Mrs. Richardson, challenging the validity of Mass.Gen.Laws Ann., c. 264, § 14 (1959). That law requires all public employees to subscribe to a loyalty oath which reads as follows:

'I do solemnly swear (or affirm) that I will uphold and     defend the Constitution of the United States of America and      the Constitution of the Commonwealth of Massachusetts and      that I will oppose the overthrow of the government of the      United States of America or of this Commonwealth by force,      violence or by any illegal or unconstitutional method.'

Mrs. Richardson sought declaratory and injunctive relief against enforcement of the oath as a bar to her resuming employment with Boston State Hospital, and also sought damages for pay withheld by reason of her having refused to subscribe to the oath.

The District Court granted the requested declaratory and injunctive relief, but stated in its opinion, 'We cannot grant her [Mrs. Richardson's] request for back pay.' Accordingly, the formal judgment contained no allusion to the back-pay request.

Dr. Cole, the hospital superintendent, and another official in No. 679 appeal from the award of declaratory and injunctive relief. Mrs. Richardson has cross-appealed from the denial of back pay and by way of response to the appeal moved for summary affirmance and suggested, in the alternative, that the appeal is moot since the particular job she held has been 'discontinued.' In reply, Dr. Cole has submitted an affidavit asserting that '[e]mployment consonant with [Mrs. Richardson's] abilities and qualifications has been and is periodically available should she wish to apply for such employment.'

I fail to understand today's wholly unexplained and extraordinary disposition of remanding to the lower court to determine if these cases are moot. Since appellants in No. 679 have not disputed Mrs. Richardson's specific statement that the job she held is no longer in existence, there may be some question as to whether a controversy continues to exist in that case, although I would have thought this question one to be resolved by this Court, without the necessity of a remand. Certainly, however, there can be no question that a live controversy exists over the damages question.

I am, however, content to acquiesce in the Court's action because of the manifest triviality of the impact of the oath under challenge, a factor that may, I suspect, underlie today's unusual disposition.

Whether or not one considers that the District Court erred in what perforce amounts to an exercise in semantics, I would suppose that the vagueness contentions in this instance can, depending on how one defines his terms, be characterized as at least colorable for, as the opinion below aptly points out, almost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel. I do not, however, consider it a provident use of the time of this Court to coach what amounts to little more than verbal calisthenics. Cf. S.C.hase, The Tyranny of Words (1959); W. Empson, Seven Types of Ambiguity (1955). This kind of semantic inquiry, however interesting, should not occupy the time of federal courts unless fundamental rights turn on the outcome.

I think it can be fairly said that subscribing to the instant oath subjected Mrs. Richardson to no more than an amenity. No First Amendment considerations, in my view, are at all involved in these cases. This oath does not impinge on conscience or belief, except to the extent that oath taking as such may offend particular individuals. I also think it safe to say that the signing of this oath triggered no serious possibility of prosecution for either perjury or failure to perform the obligations of the oath. Indeed, I consider it most unfortunate that our past decisions in this field can be construed even to require solemn convocation of three federal judges to deal with a matter of such practical inconsequence.

Mr. Justice DOUGLAS, dissenting.