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Justice Murphy participated in 1059 cases.
Joined with Majority826
Dissented185
Concurred31
Concurring in Judgment16
Did Not Participate46
Jurisdictional Dissent1

Murphy, William Francis (Frank)

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Birth: April 13, 1890, Sand Beach (now Harbor Beach), Michigan.

Education: University of Michigan, A.B., 1912, LL.B., 1914; graduate study, Lincoln's Inn, London, and Trinity College, Dublin.

Official Positions: Chief assistant U.S. attorney, Eastern District of Michigan, 1919–1920; judge, Recorder's Court, Detroit, 1923–1930; mayor of Detroit, 1930–1933; governor general of the Philippines, 1933–1935; U.S. high commissioner to the Philippines, 1935–1936; governor of Michigan, 1937–1939; U.S. attorney general, 1939–1940.

Supreme Court Service: Nominated associate justice by President Franklin D. Roosevelt, January 4, 1940, to replace Pierce Butler, who had died; confirmed by the Senate, January 16, 1940, by a voice vote; took judicial oath February 5, 1940; served until July 19, 1949; replaced by Tom C. Clark, nominated by President Harry S. Truman.

Death: July 19, 1949, Detroit, Michigan.


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William Francis (Frank) Murphy
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Noteworthy Opinions

William Francis (Frank) Murphy

The appointment of Frank Murphy in 1940 gave President Franklin D. Roosevelt a crucial fifth vote on a Supreme Court that had been dominated for two decades by a reactionary “horse-and-buggy” approach to the Constitution. Roosevelt tried to reshape the Court as a New Deal agency, but several of his eight nominees, most notably Felix Frankfurter, shed their liberal politics and veered to the right once on the bench. Murphy, however, began and ended his entire public career as a consistent, committed liberal. He is arguably the most liberal—even radical—justice to serve on the Supreme Court. His judicial opinions, often written in dissent, swept aside technical “niceties” in a quest for justice and “human dignity.” Often accused of voting with his heart, Murphy pleaded guilty to a visceral jurisprudence. “The law knows no finer hour,” he wrote, “than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution.”

Unlike many of his colleagues, Murphy was no mystery man; one can find no disparity between his upbringing and his judicial philosophy. But differences existed within his family that help to explain the demons that afflicted Murphy during his entire life. Moreover, Murphy's Irish heritage affected him in two very different ways. His father was a small-town lawyer, a Democrat, and freethinker in the Republican bastion of northern Michigan. His great-grandfather was hanged by the British as an insurrectionist, and his father was jailed as a youth in Canada for Fenian sympathies. Murphy adopted his father's radical politics, but he also absorbed his mother's devout Catholicism. This was not just parish piety; she instilled in him an equally radical religious vision that would not allow Murphy, he later wrote, to “remain silent in the face of wrong.”

The conflicts of Murphy's early years offer a clear guide to those of his judicial career. In high school and college, he loved debating and hated exams. He was popular, but had few close friends. He courted many women, but never married. Murphy was renowned for his generosity and equally noted for his egocentricity. He acted for the people and looked first at his press clippings. There was nothing about Murphy that was not calculated. He differed from judges who gave their votes to the government; his sympathies lay with those who “have been burned at the stake, imprisoned, and driven into exile in countless numbers for their political and religious beliefs.”

Murphy viewed law and politics as inseparable, and he pursued an ambitious political career, with the White House as the ultimate goal. First elected as a Detroit criminal judge in 1923, he reformed an archaic system. Clarence Darrow, who tried a racially charged case before Murphy, called him “the kindliest and most understanding man I ever happened to meet on the bench.” Murphy courted labor and minority groups, and was elected Detroit's mayor in 1930. Faced with massive unemployment, he instituted a welfare program that strained city finances but alleviated poverty.

Murphy helped Franklin Roosevelt win the White House in 1932 and was rewarded with the post of governor general of the Philippines, where he became popular by supporting the independence movement and bringing money from Washington for jobs and welfare. The political bug lured him back to Michigan in 1936. His inauguration as governor was followed by immediate crisis, when militant autoworkers began sit-down strikes that company and local officials met with judicial injunctions. Murphy called out National Guard troops to maintain peace while he worked behind the scenes to head off industrial warfare. The irony of his success was that both sides accused him of favoring the other, and Murphy lost his reelection battle in 1938.

The next year Roosevelt appointed Murphy to head the Justice Department. His major achievement was to set up the civil liberties unit, whose lawyers dusted off unused federal laws to prosecute local officials who abused—and even murdered—blacks and labor organizers. Murphy's crusading zeal made enemies, many of them Democrats; moving him to the Supreme Court allowed Roosevelt to find a more pliable replacement as attorney general. Murphy did not want to join the Court. Feeling he lacked the legal skill for the job Roosevelt was forcing him to accept, he lobbied instead for appointment as secretary of war. “I am not too happy about going on the Court,” he wrote a friend. “I fear that my work will be mediocre up there while on the firing line where I have been trained to action I could do much better.” Although several senators agreed with Murphy's self-assessment, and others considered him too radical, Roosevelt's clout secured his confirmation without objection.

It is not surprising that Murphy arrived at the Court with an inferiority complex: he was joining legal luminaries such as Chief Justice Charles Evans Hughes, who presided with Jovian firmness; Harlan Fiske Stone, former Columbia law dean; Felix Frankfurter, who lectured his colleagues like the Harvard law students he had taught; and William O. Douglas and Hugo Black, dissimilar in temperament but liberal allies on the bench. Murphy, in fact, had more prior judicial experience—eight years as a criminal judge—than any sitting justice, but his knowledge of constitutional law was sketchy, and he had never written an appellate opinion, but neither had Stone, Frankfurter, Douglas, or Black before their appointments. Like most junior justices, Murphy learned by on-the-job training, assisted by colleagues and bright law clerks. More than most justices, he relied on his clerks to draft opinions, which caused some grumbling from those who considered him lazy.

Three years before Murphy joined the Court, the “constitutional revolution” of 1937 had ended the reign of the judicial reactionaries who struck down most of the New Deal recovery measures Roosevelt had pushed through Congress. In 1938 the Court began to shift its agenda from property rights to human rights. The famous “footnote four” of Justice Stone's opinion in United States v. Carolene Products (1938) proposed a “searching judicial inquiry” of laws that were challenged as violating any of “the first ten Amendments” or as discriminating against racial or religious minorities. Murphy embraced the so-called “strict scrutiny” doctrine and the related position that First Amendment rights occupied a “preferred place” in the Constitution.

New justices are allowed to pick their first opinion, and Murphy's choice reflected his concerns for labor and free speech. The case, Thornhill v. Alabama (1940), challenged a state law that banned virtually all picketing by union members. Judges had often agreed that even peaceful picketing was not speech, but a form of intimidation. Murphy broke new ground in extending the First Amendment to picketers. He made a point of citing the Carolene Products footnote, and he struck down the statute “on its face” as violating the First Amendment. He also took note of “the circumstances of our time” in holding that “the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” Implicit in Murphy's opinion was his recognition that workers had fewer weapons in battles for public support than employers, who often controlled local newspapers. Picket signs helped to answer hostile news coverage and editorials.

Murphy's first opinion turned out to be one of his most influential and enduring. Thornhill has been cited in more than 300 opinions, and Justice Tom C. Clark wrote in 1969 that it was “the bedrock upon which many of the Court's civil rights pronouncements rest.” Critics have complained that Thornhill was phrased too broadly and limited the power of officials to protect streets and sidewalks from disruption. But Murphy effectively buried the ancient doctrine that picketing was unlawful in any form.

Murphy's commitment to Carolene Products and its protection of minorities was shaken by a case decided six weeks after Thornhill in June 1940. With war clouds looming, the Court in Minersville School District v. Gobitis upheld the expulsion from public school of a Jehovah's Witness student who refused on religious grounds to salute the American flag. Only Stone dissented from Frankfurter's majority opinion, which said that “national unity is the basis of national security.” Murphy had prepared a dissent but withdrew it to show his patriotic colors. Even more than Frankfurter, Murphy had a bad case of war fever. He shocked his colleagues by trading his judicial robe for a uniform in 1942, reporting for infantry training at Fort Knox.

This short army stint, however, did not keep Murphy from deserting Frankfurter's judicial platoon. Along with Douglas and Black, and a new recruit, Justice Wiley Rutledge, he joined Stone, now chief justice, in overruling Gobitis in 1943. Concurring in West Virginia State Board of Education v. Barnette (1943), Murphy answered Frankfurter in writing that “the real unity of America” rested not on coercion or conformity, but on religious freedom. “Reflection has convinced me,” he added, “that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.” The Barnette case split the Court into hostile factions. Frankfurter felt betrayed and derided Murphy as a conspirator in a judicial “Axis” that undermined political and military authority. Changing his mind from Gobitis to Barnette did not mean that Murphy had no judicial compass; rather, it showed his growing ability to separate personal emotions from the Constitution's dictates. In this regard, he displayed greater maturity and discipline than Frankfurter, who stuck to his belief that even schoolchildren should support the war effort.

Murphy demonstrated his commitment to principle by consistently supporting the Jehovah's Witnesses, who bitterly attacked his beloved Catholic Church. He dissented when the Court upheld in 1944 a state law that barred minors from selling religious literature on public streets. Murphy cited the Witnesses in Prince v. Massachusetts as “living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure.” He noted that Witnesses “have suffered brutal beatings; their property has been destroyed: they have been harassed at every turn by the resurrection and enforcement of little used ordinances and statutes.” Theological disputes aside, Murphy knew that Witnesses and Catholics had both suffered for their faith. “If Frank Murphy is ever sainted,” one colleague said, “it will be by the Jehovah's Witnesses.”

Even more than religious bigotry, Frank Murphy hated racism. As a criminal court judge, he knew that black defendants were treated more harshly than white defendants. And as mayor of Detroit, he saw the punishing impact of the Depression on minorities. During his army training in southern states, he saw the all-black chain gangs and the demeaning customs of segregation. Murphy wrote a friend that he was determined to redress the reality that “people of color” were denied “constitutional rights and any kind of social justice.”

When Murphy was forced to choose, however, between his wartime fervor and revulsion at racism, he succumbed to judicial paralysis. He faced this choice in Hirabayashi v. United States (1943), which produced a dramatic clash between the Constitution's “war powers” and its prohibition of racial discrimination. The case began with the Japanese attack on Pearl Harbor on December 7, 1941. More than 100,000 Americans of Japanese ancestry—two-thirds of them native-born citizens—became the victims of wartime hysteria and racism. Fueled by sensational (but false) reports of sabotage and espionage, military officials persuaded President Roosevelt to sign an executive order in February 1942 that authorized the removal of “any or all persons” from the West Coast. Congress backed the order with criminal penalties, and army troops herded the entire Japanese American population into “relocation centers” in isolated desert and swamp areas. Even liberals such as Earl Warren, then California's attorney general, supported this program of ethnic cleansing.

Only three young men, acting separately, had the courage to challenge the military curfew and exclusion orders that preceded the mass evacuation. They were arrested and convicted in brief trials, and then appealed their sentences to the Supreme Court. The justices first addressed the curfew orders in the cases of Gordon Hirabayashi, a University of Washington student, and Minoru Yasui, an Oregon lawyer and reserve army officer. Stone wrote for the Court in both cases, addressing the major issues in the Hirabayashi opinion in June 1943. “Distinctions between citizens solely because of their ancestry,” he admitted, “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Wartime pressures, however, allowed officials to place “citizens of one ancestry in a different category from others.” Stone blamed Japanese Americans for their plight: decades of discrimination resulted in “little social intercourse between them and the white population.” The chief justice deferred to military authority and ignored his Carolene Products footnote on racial discrimination.

Murphy was appalled by an opinion he considered “utterly inconsistent” with American ideals, and he drafted a stinging dissent. He denied that the Constitution allowed “one law for the majority of our citizens and another for those of a particular racial heritage.” And he said the internment of Japanese Americans “bears a melancholy resemblance to the treatment accorded to members of the Jewish race” by the Nazis. Frankfurter was offended by suggestions the Court was “behaving like the enemy” and pleaded with Murphy to withdraw his dissent. As he had in Gobitis, Murphy yielded. But his Hirabayashi concurrence retained the analogy to Nazi persecution and said the mass internment “goes to the very brink of constitutional power.”

Again, Murphy repented his vote with a vengeance. But this time he remained in the minority. In December 1944 the Court upheld the military exclusion orders in Korematsu v. United States. Fred Korematsu was a shipyard welder in California who violated the exclusion order because he wanted to stay with his Caucasian fiancŽe, but someone recognized him and called the police. Black wrote for the Court in affirming his conviction. Like Stone, Black agreed that laws which “curtail the civil rights of a single racial group” were subject to “the most rigid scrutiny.” And like Stone, he exempted from scrutiny military claims that Japanese Americans posed a security threat and that it was impossible to separate “the disloyal from the loyal” in this racial group.

Murphy was the only member of the liberal “Axis” to dissent in Korematsu. He charged the Court with plunging over the brink of constitutional power “into the ugly abyss of racism.” His carefully documented opinion showed that belief in “racial guilt rather than bona fide military necessity” had motivated the officials who urged the internment program. Murphy quoted the West Coast army commander who said all Japanese Americans belonged to “an enemy race” and the farm leader who admitted “wanting to get rid of the Japs” so that “white farmers can take over and produce everything the Jap grows.” And he accused the Court's majority of adopting “the cruelest of the rationales used by our enemies to destroy the dignity of the individual” and of opening the door “to discriminatory actions against other minority groups in the passions of tomorrow.” Murphy simply could not stomach what he called “this legalization of racism.”

Murphy's dissent in Korematsu stands as his most powerful opinion. His marshalling of the facts—which Black ignored or distorted—belies charges that Murphy lacked the skills of legal craftsmanship. It should be noted that he won vindication four decades later when federal judges vacated the convictions in the wartime internment cases. The judge who cleared Gordon Hirabayashi added more documentation to Murphy's charges that racial bias had motivated government officials. He hoped these facts would “stay the hand of a government again tempted to imprison a defenseless minority without trial and for no offense.” And the judge in Fred Korematsu's case echoed Murphy in writing, “The shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.” Murphy would have relished these posthumous tributes to his legal skills.

The bedrock principle of Murphy's view of the Constitution was that no person remained outside its protection, however unpopular or even hated. Communists, aliens, accused spies, even war criminals deserved all the rights of the most respected citizen. Murphy held government officials, from the police to the president, to the highest standards of behavior. For example, he dissented in 1945 from a decision overturning the federal conviction of a Georgia sheriff for beating a black prisoner to death. The Court held in Screws v. United States that a Reconstruction-era law making it criminal to act “under color of law” in depriving anyone of constitutional rights required strict proof of intent. Writing for the 5–4 majority, Douglas found insufficient evidence that Sheriff Claude Screws intended to deprive Robert Hall of a specific federal right when he killed the handcuffed prisoner with a tire iron.

Murphy was the only justice who voted to uphold both the law and the conviction. He faulted the majority for ignoring the clear language of the Fourteenth Amendment, “which firmly and unmistakably provides that no state shall deprive any person of life without due process of law.” Robert Hall “has been deprived of the right to life itself,” he wrote. “That right was his because he was an American citizen, because he was a human being.” It required only “common sense” to understand that a police officer who has “beaten and crushed the body of a human being” has violated the clearest demand of the Constitution.

In two politically charged cases, Murphy protected an admitted Communist from denaturalization and an alleged party member from deportation. Federal officials tried in 1939 to strip William Schneiderman of American citizenship on grounds that his Communist activities showed he was not “attached to the principles of the Constitution” when he was naturalized in 1927. Opposed to loyalty tests in general, Murphy objected to this retroactive test in particular. Writing for the Court in Schneiderman v. United States (1943), he blasted the government for seeking “to turn the clock back twelve years” and to deprive Schneiderman of the “priceless benefits” of citizenship for acts that were perfectly lawful. Murphy would grant to every new citizen—even Communists—the right “to think and act and speak according to their convictions, without fear of punishment or further exile so long as they keep the peace and obey the law.”

The government tried even harder to deport Harry Bridges, the controversial leader of West Coast maritime workers. Bridges came from Australia in 1920 and never applied for citizenship. He freely admitted his radical sympathies but denied Communist Party membership. Efforts to deport Bridges began in 1934 after a bloody waterfront strike in San Francisco, but several panels found no evidence he belonged to the party. In 1940 Congress passed a law allowing deportation of aliens who had at any time been “affiliated” with the Communist Party. Its sponsor proclaimed his “joy” that the government “should now have little trouble in deporting Harry Bridges and all others of similar ilk.” Government witnesses at a new hearing testified that Bridges agreed with Communist policies, and he was again served with a deportation order. The Supreme Court reversed the order in Bridges v. Wixon (1945), ruling narrowly that pivotal witnesses had given “untrustworthy” testimony. But the Court declined to decide whether “affiliation” with the Communist Party could justify deportation.

Although he agreed with the outcome, Murphy was outraged at this evasion of the constitutional issue. He put his most passionate language into a concurring opinion. “The record in this case will stand forever as a monument to man's intolerance of man,” he wrote. “Seldom if ever in the history of this nation has there been such a concentrated and ruthless crusade to deport an individual because he dared to exercise the freedom that belongs to him as a human being and that is guaranteed to him by the Constitution.” The final sentence of his opinion set out Murphy's vision of the Constitution: “Only by zealously guarding the rights of the most humble, the most unorthodox and the most despised among us can freedom flourish and endure in our land.”

Gen. Tomoyuki Yamashita was probably the “most despised” person who ever appealed to the Supreme Court. There was no doubt the Japanese troops he commanded in the Philippines had committed unspeakable atrocities, but there was considerable doubt that Yamashita ordered or even knew of these atrocities. An American military tribunal sentenced him to hang for violating the U.S. Articles of War. His appeal, prepared by U.S. Army defense lawyers, raised issues of due process, international law, and American treaty obligations. Stone urged the justices to take a “hands off” position on military authority. All but Rutledge and Murphy agreed, and Yamashita's execution quickly followed the Court's decision.

Even though his years in the Philippines had given Murphy a special sympathy for those who suffered “brutal atrocities” at the hands of Japanese troops, he still had a greater attachment to the Constitution. His dissenting opinion in In re Yamashita (1946) catalogued at length the procedural flaws in Yamashita's hasty trial. Due process guarantees applied to “any person” accused of crime. “No exception is made as to those who are accused of war crimes,” Murphy wrote. Yamashita was “rushed to trial under an improper charge” and deprived of basic rights. Murphy put the Bill of Rights in universal terms:

The immutable rights of the individual …. belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs. They rise above any status of belligerency or outlawry. They survive any popular passion or frenzy of the moment. No court or legislature or executive, not even the mightiest army in the world, can ever destroy them.

Not surprisingly, Murphy's last opinion was a dissent. And, not surprisingly, it dealt with another “despised” person, an accused Soviet spy named Gerhart Eisler, who had fled the country to avoid imprisonment. The Court voted to dismiss his pending appeal, but Murphy disagreed. The issues before the Court “did not leave when Eisler did” he said in Eisler v. United States (1949). Within weeks of this opinion, Murphy died of a heart attack. The inscription on his grave marker, in his Michigan birthplace, is simple: Frank Murphy/ Justice United States Supreme Court/ 19 July 1949.

But the final paragraph of Murphy's last opinion offered a fitting epitaph:

Law is at its loftiest when it examines claimed injustice even at the instance of one to whom the public is bitterly hostile. We should be loath to shirk our obligations, whatever the creed of the particular petitioner. Our country takes pride in requiring of its institutions the examination and correction of alleged injustice whenever it occurs. We should not permit an affront of this sort to distract us from the performance of our constitutional duties. I dissent.

Bibliography

The Frank Murphy papers are in the Michigan historical collections, University of Michigan, Ann Arbor, and contain virtually all of Murphy's Court papers and correspondence. The Eugene Gressman papers, also in the Michigan historical collections, are a valuable supplement to Murphy's papers. Sidney Fine, Frank Murphy: The Washington Years (1984), is the definitive account of Murphy's Supreme Court career. Two prior volumes in this massive biography cover the earlier parts of his public life. See also J. Woodford Howard Jr., Mr. Justice Murphy: A Political Biography (1968), a biography that is less detailed but somewhat more critical than Fine's work. Harold Norris, Mr. Justice Murphy and the Bill of Rights (1965), includes many of Murphy's opinions.

Two worthwhile articles are Eugene Gressman, “The Controversial Image of Mr. Justice Murphy,” Georgetown Law Review 47 (1959): 631, an admiring but insightful memoir by a former law clerk and longtime friend; and Archibald Cox, “The Influence of Mr. Justice Murphy on Labor Law,” Michigan Law Review 48 (1950): 769, an excellent review of Murphy's labor opinions. More recent articles include T.J. St. Antoine, “Justice Frank Murphy and American Labor Law,” Michigan Law Review 100 (2002): 1900; and M.J.J. Perry, “Justice Murphy and the Fifth Amendment Equal Protection Doctrine: A Contribution Unrecognized,” Hastings Constitutional Law Quarterly 27 (2000): 245.

Noteworthy Opinions

Thornhill v. Alabama, 310 U.S. 88 (1940)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (Concurrence)

Hirabayashi v. United States, 320 U.S. 81 (1943) (Concurrence)

Schneiderman v. United States, 320 U.S. 118 (1943)

Prince v. Massachusetts, 321 U.S. 158 (1944) (Dissent)

Korematsu v. United States, 323 U.S. 214 (1944) (Dissent)

Screws v. United States, 325 U.S. 91 (1945) (Dissent)

Bridges v. Wixon, 326 U.S. 135 (1945) (Concurrence)

In re Yamashita, 327 U.S. 1 (1946) (Dissent)

Eisler v. United States, 338 U.S. 189 (1949) (Dissent)

 

Document Citation
Murphy, William Francis (Frank), in Biographical Encyclopedia of the Supreme Court 371 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18168-979428.
Document ID: bioenc-427-18168-979428
Document URL: http://library.cqpress.com/scc/bioenc-427-18168-979428