MURPHY, FRANK (1890–1949)

president franklin d. roosevelt appointed Frank Murphy to the Supreme Court in 1940. Murphy, who had been mayor of Detroit and governor of Michigan, was attorney general at the time of his appointment as a Justice. As attorney general he created the Civil Rights Section (now division) of the Department of Justice and supported a vigorous antitrust program. As spokesman for the Supreme Court in constitutional matters, Murphy made modest but significant contributions. But as author of concurring and dissenting opinions in constitutional areas of individual freedom, Murphy voiced some of the more eloquent and impassioned defenses of human liberty in the Court's history.

Murphy's tenure on the Court spanned the decade of the 1940s. That period witnessed the consolidation of the federal and state power to deal with pressing economic and social problems. Murphy eagerly joined in this judicial retreat from the philosophy of lochner v. new york (1905). Murphy's contribution to the de-Lochnerization of constitutional law was highlighted by his opinions for the Court in North American Co. v. Securities & Exchange Commission (1946) and American Power & Light Co. v. Securities & Exchange Commission (1946). Those decisions validated the "death sentence" clauses of the public utility holding company act of 1935, the last major piece of new deal legislation to be challenged. In language reminiscent of john marshall's language in gibbons v. ogden (1824), Murphy declared that the commerce clause is "an affirmative power commensurate with the national needs." It gives Congress authority "to undertake to solve national problems directly and realistically, giving due recognition to the scope of state power," as well as to other constitutional provisions.

His first assignment to write a Court opinion produced a historic chapter in the development of freedom of speech. In thornhill v. alabama (1940) the Court held an Alabama antipicketing statute unconstitutional on its face. Murphy wrote that information concerning labor disputes is "within the area of free discussion … guaranteed by the Constitution." Such speech can be abridged only if there is a clear and present danger that substantive evils may arise before the merits of the discussion can be tested in the market of public opinion. The Court, though later permitting certain "time, place, and manner" restrictions on picketing, has never repudiated the Thornhill doctrine.

Another landmark free speech opinion written by Murphy was chaplinsky v. new hampshire (1942). Although controversial, the decision proved to be an influential forerunner of the Court's doctrinal notion that certain kinds of speech are of such slight social value as not to deserve full first amendment protection. Such speech, said Murphy, includes "the lewd and obscene, the profane, the libelous, and the insulting or ' fighting ' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Murphy also made a provocative contribution to the once raging judicial battle over whether the fourteenth amendment totally or only selectively incorporates the bill of rights. While agreeing with Justice hugo l. black's total incorporation doctrine, Murphy in a dissent in Adamson v. California (1947) proposed an "incorporation-plus" approach. A state proceeding, he wrote, may be so wanting in due process as to warrant constitutional condemnation "despite the absence of a specific provision in the Bill of Rights." Murphy's suggestion has proved functionally similar to the Court's final choice of the "selective incorporation approach."

Murphy was seldom assigned to write majority opinions in other constitutional areas. Among the few that he did write were the short-lived Fourth Amendment opinion in trupiano v. united states (1948) and the influential full faith and credit opinion in Industrial Commission v. McCartin (1947). Thus most of his deeply held views on the constitutional rights of individuals had to find expression in concurring and dissenting opinions. Through these he developed his judicial philosophy and expressed his ardent opposition to restricting the constitutional rights of racial and religious minorities, the economically disadvantaged, and those accused of crime.

The most durable and the most highly praised of all these individualized opinions is his dissent from what Murphy called "this legalization of racism" in korematsu v. united states (1944). The Court there upheld the wartime relocation of all persons of Japanese ancestry residing on the West Coast. Murphy dissected the military report upon which the relocation was based, and found the report filled with discredited and questionable racial and sociological factors beyond the realm of expert military judgment. To Murphy, the relocation was nothing more than racial discrimination that was "utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States." This dissent has been described by commentators as a classic in Supreme Court literature, and as one that "should be engraved in stone."

inFalbo v. United States (1944), Justice Murphy wrote that the law "knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution." His instinctive empathy for the constitutional rights of the oppressed and the unpopular constitutes Murphy's lasting contribution to the development of constitutional law.

Eugene Gressman
(1986)

Bibliography

Fine, Sidney 1984 Frank Murphy: The Washington Years. Ann Arbor: University of Michigan Press.

Howard, J. Woodford 1968 Mr. Justice Murphy. Princeton, N.J.: Princeton University Press.