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Fred M. Vinson took his seat as Chief Justice of the United States at the beginning of the 1946 term; there were no other changes in the personnel of the Court. Mr. Justice Jackson returned to the bench after his year's absence in Nuremberg. Continuing disagreement among the justices was shown by the fact that in twenty-three cases four justices dissented, and in twenty-four cases three dissented. The number of concurring opinions filed remained high.

The Supreme Court's decisions dealing with civil liberties in the ten years under review fall into four groups: (1) cases involving the rights protected by the First Amendment—freedom of religion, speech, press, and assembly; (2) those concerned with racial discrimination; (3) cases enlarging the power of the federal government to protect civil rights against invasion by private persons; (4) war-time cases arising out of conflicts between civil liberty and military power. Decisions dealing with procedural due process and other rights of those accused of crime are discussed in another part of this symposium.I. FIRST AMENDMENT—FREEDOM OF RELIGION, SPEECH, PRESS, AND ASSEMBLYDuring the decade we are examining, the Supreme Court not only has decided a substantial number of cases involving freedom of speech, press, and religion, but it has developed a new and important judicial philosophy or doctrine with respect to them. In this judicial doctrine, three principles are fused. The first is that the four liberties protected by the First Amendment are so indispensable to the democratic process and to the preservation of the freedom of our people that they occupy a preferred place in our scheme of constitutional values.

Chief Justice Harlan F. Stone died on April 22. He was appointed Associate Justice by President Coolidge in 1925, and was elevated to the Chief Justiceship by President Roosevelt upon the retirement of Chief Justice Hughes in 1941. On June 7, President Truman nominated Fred M. Vinson, then Secretary of the Treasury, to be Chief Justice of the United States, and the Senate confirmed the nomination on June 20. Mr. Justice James C. McReynolds, who retired from the Court in 1941, died on August 24, 1945. Mr. Justice Jackson, who in May, 1945, had been appointed chief American prosecutor at the trial of Axis war criminals at Nuremberg, did not return to the Court during the 1945 term. On June 10, Mr. Justice Jackson, in Nuremberg, released to the press a statement sharply criticizing Mr. Justice Black for his failure to disqualify himself in Jewell Ridge Coal Corp. v. Local No. 6167, U.M.W. This case, which awarded coal miners "portal-to-portal" pay under the Fair Labor Standards Act, was decided by a five-to-four vote, and Mr. Justice Black's former law partner was attorney for the union. The statement, unprecedented in judicial history, made public record of a personal antagonism between the two justices, and elicited nation-wide press comment. Mr. Justice Black made no reply, and there have been no later repercussions of the incident.A court of eight justices decided twenty-three cases in which three justices dissented, and twenty-one cases in which two dissented. The Court overruled one earlier decision. This brings the list of overruled cases since 1937 to twenty-seven.

The membership of the Supreme Court did not change during the 1944 term, but Mr. Justice Roberts resigned in July after the term had ended. Divisions in the Court were as numerous and as difficult to classify as before. Four justices dissented in twenty-seven cases, while three justices dissented in sixteen cases. The Court seems to be moving toward the old practice of the pre-Marshall period by which the justices wrote seriatim opinions. There is a depressing increase in the number of cases in which three, four, and even five justices feel impelled to write separate opinions.

There were no changes in the personnel of the Court during the 1943 term. Disagreement amongst the justices mounted sharply. In seventeen cases, four justices dissented; three dissented in twenty others. Two cases overruled previous decisions of the Court, bringing to twenty-four the total list of reversals since 1937. One of the two recent reversals, that in the very important case holding the insurance business to be interstate commerce, was effected by a minority of the justices, who divided four-to-three.A. Questions of National Power1. The war PowerConstitutionality of Wartime Price Control and Rationing. In a group of cases, the Court came to grips with the constitutionality and construction of the Emergency Price Control Act of 1942. The most important of these was Yakus v. United States, involving a conviction in a federal district court in Massachusetts for a violation of the maximum prices fixed by the O.P.A. on the sale of wholesale cuts of beef. Yakus refused to obey the price regulation, declined to follow the procedure made available in the statute for protesting against it, and attempted in his criminal trial to challenge the validity of the price regulations and of the statute on which they rested. This he was not permitted to do. Speaking through Chief Justice Stone, the Gourt held the Emergency Price Control Act to be valid, not only in its substantive regulations, but also in the procedures set up for its enforcement. The Court's opinion dealt with four points.

On February 15, 1943, Wiley B. Rutledge, Jr., a judge of the United States Circuit Court of Appeals for the District of Columbia, took the seat on the Supreme Court vacated by the resignation in October, 1942, of Mr. Justice Byrnes. There were no other changes in the Court's personnel. Disagreement among the justices abated somewhat. In only a dozen cases of importance did either four or three justices dissent, as against some thirty cases in the last term. The Court overruled two earlier decisions, both recent; and the reversal in each case was made possible by the vote of Mr. Justice Rutledge.A. QUESTIONS OF NATIONAL POWER1. WAR POWER-CIVIL VERSUS MILITARY AUTHORITYWest Coast Curfew Applied to Japanese-American Citizens. In February, 1942, the President issued Executive Order No. 9066, which authorized the creation of military areas from which any or all persons might be excluded and with respect to which the right of persons to enter, remain in, or leave should be subject to such regulations as the military authorities might prescribe. On March 2, the entire West Coast to an average depth of forty miles was set up as Military Area No. 1 by the Commanding General in that area, and the intention was announced to evacuate from it persons of suspected loyalty, alien enemies, and all persons, aliens and citizens alike, of Japanese ancestry.

No nation has ever fought a tough war without overriding for the duration some of the civil liberties of its people. The war we are fighting is more than a tough war; it is a mortal struggle in which the life of constitutional democracy throughout the world is at stake. It presents a new kind of challenge to the vitality of American civil liberty. We know from grim experience that in the peace which follows a tough war, civil liberty faces new and increased dangers. High-keyed energies and emotions, suddenly released, seek a new outlet. Wartime patriotism tends to become peacetime intolerance, and wherever there is intolerance, the traditional civil liberties of unpopular minority groups are in grave danger of being brutally suppressed. The peace which will follow the war we are now fighting will be without precedent in the complexity of its problems, the power of the emotional reactions which it will generate, and the strength of the triumphant determination of our people to preserve intact the fruits of victory. This peace will bring in its wake an unprecedented temptation to abridge some of our basic civil liberties, and this new threat will be very dangerous indeed. This is the general subject which I wish to explore.What I have to say falls into three parts. First, I wish to review some of the salient features of our national experience with civil liberty problems down to the eve of the present war; and by experience I mean our thinking about these problems as well as our behavior with respect to them.