Goldstein v. Cox (396 U.S. 471)/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

If summary judgment had been granted to appellant, there would be no question but that this Court would have jurisdiction under 28 U.S.C. § 1253 over an appeal from that judgment, as it would constitute an 'order granting * *  * an interlocutory or permanent injunction.' Similarly, there seems little room for argument that the denial of summary judgment to appellants constitutes an order 'denying *  *  * an interlocutory or permanent injunction,' since such injunctive relief was requested in appellants' complaint. The majority opinion relies on Switzerland Cheese Ass'n v. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23, as authority for dismissing this appeal for want of jurisdiction under 28 U.S.C. § 1253. In that case, however, the denial of summary judgment was based solely on the existence of a triable issue of fact; the summary judgment did not concern in any way the merits of the case. This case involves more. Appellants claimed that § 2218 of the New York Surrogate's Court Procedure Act was unconstitutional on its face. The denial of summary judgment constituted a rejection of this claim on the merits, as well as a denial of injunctive relief based on that claim. On this basis, I would find jurisdiction under 28 U.S.C. § 1253 to decide this appeal on the merits.