Felix Frankfurter

“ The easy but timid way out for a trial judge is to leave all casestried to a jury for jury determination, but in so doing he fails in his duty to take a case from the jury when the evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge.' Wilkerson v. ”

“ For my part, to overturn the judgments below simply involves second-guessing the Missouri Supreme Court, the Court of Appeals for the Seventh Circuit, and the Court of Appeals for the Second Circuit, on questions of fact on which they brought to bear judgments neither capricious nor unreasonable, and on which they made 'fair assessment of a record.'
I dissent also for another reason. No scientific or precise yardstick can be devised to test the sufficiency of the evidence in a negligence case. The problem has always been one of judgment, to be applied in view of the purposes of the statute. ”

“ He deemed wise decisions on substantive law within the indispensable area of the Court's jurisdiction dependent on a limited volume of business and on a truly deliberative process.
One field of conspicuous disregard of these vital considerations is that large mass of cases under the Federal Employers' Liability Act in which the sole issue is the sufficiency of the evidence for submission to the jury. [2] For many years, I reluctantly voted on the merits of these negligence cases that had been granted review. ”

“ But a different situation is presented when a class of cases is systematically taken for review. Then a Justice who believes that such cases raise insignificant and unimportant questions-insignificant and unimportant from the point of view of the Court's duties-and that an increasing amount of the Court's time is unduly drained by adjudication of these cases cannot forego his duty to voice his dissent to the Court's action.
The 'rule of four' is not a command of Congress. ”

“ It deserves to be recorded that Professor John Chipman Gray, a legal scholar with social insight, taught his students fifty years ago, before the first workmen's compensation law had been enacted, that it is anachronistic to apply the common-law doctrine of negligence to injuries suffered by railroad employees rather than have society recognize such injuries as inevitable incidents of railroading and provide compensation on that basis. ”

“ But there is a more basic reason why the 'integrity of the certiorari process' does not require me to vote on the merits of these cases. The right of a Justice to dissent from an action of the Court is historic. Of course self-restraint should guide the expression of dissent. But dissent is essential to an effective judiciary in a democratic society, and especially for a tribunal exercising the powers of this Court. Not four, not eight, Justices can require another to decide a case that he regards as not properly before the Court. ”

“ For this Court to take a case which turns merely on such an appraisal of evidence, however much hardship in the fallible application of an archaic system of compensation for injuries to railroad employees [9] may touch our private sympathy, is to deny due regard to the considerations which led the Court to ask and Congress to give the power to control the Court's docket. Such power carries with it the responsibility of granting review only in cases that demand adjudication on the basis of importance to the operation of our federal system ”

“ The failure of a Justice to persuade his colleagues does not require him to yield to their views, if he has a deep conviction that the issue is sufficiently important. Moreover, the Court operates ultimately by majority. ”

“ The most successful lawyers are, as a rule, continually engrossed in their own cases and they have little time and little respect for the speculative and hypothetical. The lawyers who have authority as leaders of opinion are men, as a rule, who have succeeded in their profession, and men naturally tend to be satisfied with the conditions under which they are succeeding.' Root, Addresses on Government and Citizenship, 479, 484. ”

“ Judicial reflection is a process that requires time and freedom from the pressure of having more work to do than can be well done. It is not a bit of quixotism to believe that, of the 63 cases scheduled for argument during the remaining months of this Term, there are a half dozen that could alone easily absorb the entire thought of the Court for the rest of the Term. ”

“ The Court does not, indeed it cannot and should not try to, give to the initial question of granting or denying a petition the kind of attention that is demanded by a decision on the merits. The assumption that we know no more after hearing and deliberating on a case than after reading the petition for certiorari and the response is inadmissible in theory and not true in fact. ”

“ The Court may well have had this discrimination in mind when it granted certiorari in the diversity cases of Gibson v. Phillips Petroleum Co., 352 U.S. 874, 77 S.Ct. 16, 1 L.Ed.2d 77, and decided it on the merits. A few more such decisions and a flood of petitions from this source may confidently be expected. Whether or not it be true that we are a litigious people, it is a matter of experience that clients, if not lawyers, have a strong urge to exchaust all possibility of further appeal, particularly when judicially encouraged to do so. ”

“ If in such situations it becomes the duty of one Justice among the disagreeing five not to 'forego' his right to dissent, then I do not see why it is not equally the duty of the remaining four, resulting in the 'rule of four' being set at naught. I thus see no basis in the circumstance that a case is an 'individual' one rather than one of a 'class' for distinctions in what may be done by an individual Justice who disapproves of the Court's action in granting certiorari. ”

“ No Justice is likely to vote to dismiss a writ of certiorari as improvidently granted after argument has been heard, even though he has not been convinced that the case is within the rules of the Court governing the granting of certiorari. In the usual instance, a doubting Justice respects the judgment of his brethren that the case does concern issues important enough for the Court's consideration and adjudication. ”

“ While in the nature of things litigants must assume the risk of 'improvidently granted' dismissals because of factors not fully apprehended when the petition for certiorari was under consideration, short of that it seems to me that the Court would stultify its own rule if it were permissible for a writ of certiorari to be annulled by the later vote of five objecting Justices. ”

“ Constant complaints have been made by successive Chief Justices about the large number of frivolous petitions that are filed each Term, 'frivolous' meaning that the issues are not deserving of consideration for review when judged by the Court's instructions to the bar. ”

“ He ran thirty to thirty-five yards along the track from the fire and, thinking himself far enough from the fire danger, stood near a drainage culvert watching the passing train for 'hotboxes.' The train caused the fire to come 'right up in (his) face.' Petitioner backed away with his arm over his face and fell down the incline of the culvert. ”

“ It involves the same general concept on which is based every 'negligence case' in the state courts and in the multitudinous cases in the federal courts on diversity of citizenship in which the question is merely one of common-law negligence; that is, it is the familiar type of litigation that is part of the day-to-day business of state and federal trial judges.
The 1908 Act denied the railroads the benefit of certain common-law defenses and the 1939 amendment, 53 Stat. ”

“ Strickland v. Seaboard Air Line R. Co., 350 U.S. 893, 76 S.Ct. 157, 100 L.Ed. 786;* reversal of judgment for plaintiff reversed.
Cahill v. New York, N.H. & H.R. Co., 350 U.S. 898, 76 S.Ct. 180, 100 L.Ed. 790;* 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075; reversal of judgment for plaintiff reversed.
Mr. Justice HARLAN, concurring in No. 46 and dissenting in Nos. 28, 42 and 59.
I am in full agreement with what my Brother FRANKFURTER has written in criticism of the Court's recurring willingness to grant certiorari in casses of this type. ”