Public Affairs Associates, Inc. v. Rickover/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

It is conceded that the Declaratory Judgment Act is an authorization, not a command-a conclusion as well settled as is the proposition that the jurisdiction of federal courts is confined to 'cases' or 'controversies.' Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617. The requirements of a 'case' or 'controversy' and the propriety of the use of the declaratory judgment are at times closely enmeshed. In resolving those issues the Court has on the whole been niggardly in the exercise of its authority. Thus, in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, a taxpayer's suit to declare that a public school system could not be used for religious instruction was dismissed because there was not 'the requisite financial interest.' Id., at 435, 72 S.Ct. 397, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078-a decision with which I have great difficulty was given new dimensions. That case held that a taxpayer of the United States had no standing to challenge a federal appropriation, since the question was essentially a matter of public, not private, concern. Id., at 487, 43 S.Ct. at 601. This ruling was projected into the state field by the Doremus case, barring relief to those legitimately concerned with the operation of the public school system.

At times the question of the 'ripeness' of an issue for judicial review is brigaded with the appropriateness of declaratory relief. In Public Service Comm. of Utah v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291, relief was denied though a carrier's certificate to do an interstate business was placed in jeopardy by threatened state action. That principle was extended in Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, to deny relief in a situation comparable to a suit to remove a cloud from one's title. For a bank was being saddled with conditions by the Federal Reserve System that crippled its activities and restricted the market for its stock. On other occasions, 'mootness' has been used as the rubric to deny relief through the route of a declaratory judgment, even though the litigant was still insecure and in peril as a result of administrative action. Mechling Barge Lines v. United States, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317.

At other times the issue is said to be 'abstract' because of the lack of immediacy in the threatened enforcement of a law. Thus, a person must risk going to jail or losing his job to get relief. That was true in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989, a case involving Connecticut's birth-control law, and in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, involving Covil Service Rules restricting the political rights of federal employees.

The list is not complete. But these cases illustrate the restrictive nature of the judge-made rules which have made the federal courts so inhospitable to litigation to vindicate private rights. At no time has the Court been wholly consistent; nor have I. Compare Connecticut Mut. Life Ins. Co. v. Moore, 333 U.S. 541, 556, 68 S.Ct. 682, 92 L.Ed. 863 (dissenting opinion), with Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 82 S.Ct. 199, 7 L.Ed.2d 139. But my maturing view is that courts do law and justice a disservice when they close their doors to people who, though not in jail nor yet penalized, live under a regime of peril and insecurity. What are courts for, if not for removing clouds on title, as well as adjudicating the rights of those against whom the law is aimed, though not immediately applied?

Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222, is illustrative of what I deem to be the important role served by the declaratory judgment. A Negro who had not been arrested for riding a segregated bus brought a class action to have his rights and those of his class adjudicated. We held there was an 'actual controversy,' because it was clear that the local authorities were bent on enforcing the segregation law, though they had not enforced it against this plaintiff.

The opinion of the Court in this case seems to set declaratory relief apart as suspect; it leaves the innuendo that if the case were here under a different complaint, the result might be different. I share none of these disparaging thoughts. I agree, however, that no matter what the cause of action might be, the present record leaves gaps which make an adjudication impossible. The lack of evidence as to the extent to which Rickover's literary works were products of his office is fatal for me, though, of course, it would not be to one who considers those facts irrelevant to the legal issue. The approach we take today has often been used to abdicate the judicial function under resounding utterances concerning the importance of judicial self-denial. See, e.g., United States v. International Union United Auto. Workers etc., 352 U.S. 567, 590-592, 77 S.Ct. 529, 1 L.Ed.2d 563. It has also served to place undue emphasis upon the clarity and precision of the questions presented, as in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, where the Court subjected the appellant 'to the burden of undergoing a third trial' in order that the issues might be in a more 'clean-cut and concrete form.' Id., at 584, 67 S.Ct. at 1427. But on the present record I have no other choice, for without additional facts I must withhold decision.

Mr. Chief Justice WARREN, with whom Mr. Justice WHITTAKER concurs, dissenting.

With respect to those of Admiral Rickover's speeches written and delivered prior to December 1, 1958, I would affirm. The record made below and filed here is, I believe, adequate to support the judgment of the Court of Appeals that the Admiral's practice of distributing numerous copies of his speeches, without limitations as to the persons who would receive them or the purposes to which they would be put by the recipients, and without so much as a suggestion of a copyright claim, amounted to a dedication of those works to the public domain. At the same time, I recognize the inadequacy of the present record for determining now whether speeches on which a copyright notice had been placed were effectively protected by that notice from other than 'fair use,' and whether Public Affairs intended to make only 'fair use' of those works. I would, therefore, also affirm the remand to the District Court ordered by the Court of Appeals as to such speeches.

In the light of these views, I find it unnecessary to pass now on the questions raised in No. 36, and would dismiss that case as premature.

Mr. Justice HARLAN, dissenting.