John Marshall Harlan II

“ Mr. Justice Frankfurter, for a majority, declared first that § 2281 made no distinction between the Supremacy Clause and other provisions of the Constitution as a ground for denying enforcement of a state statute, and second that Buder, Bransford, and Case could be distinguished on the ground that they presented no claims of unconstitutionality as such: 'If in immediate controversy is not the unconstitutionality of a state law but merely the construction of a state law or the federal law, the three-judge requirement does not become operative.' 369 U.S., at 157, 82 S.Ct., at 811. ”

“ What yet remains unclear, in spite of decisions by this and other courts, is the scope of the phrase 'upon the ground of the unconstitutionality of such statute' when the complaint alleges not the traditional Due Process Clause, Equal Protection Clause, Commerce Clause, or Contract Clause arguments, but rather that the state statute or regulation in question is pre-empted by or in conflict with some federal statute or regulation thereunder. ”

“ In contrast, a case involving an alleged incompatibility between state and federal statutes, such as the litigation before us, involves more confining legal analysis and can hardly be thought to raise the worrisome possibilities that economic or political predilections will find their way into a judgment. ”

“ Unless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great. ”

“ It might suffice to dispose of the three-judge court issue for us to hold, in agreement with what the District Court indicated, 230 F.Supp., at 410, that this case involves so much more statutory construction than did Kesler that a three-judge court was inappropriate. (We would indeed find it difficult to say that less or no more statutory construction was involved here than in Kesler and that therefore under that decision a three-judge court was necessary.) ”

“ Swift and Armour then brought this federal action to enjoin the Commissioner of Agriculture and Markets of New York from enforcing the State's labeling provisions, asserting that enforcement would violate the Commerce Clause and the Fourteenth Amendment of the Federal Constitution and overriding requirements of the federal poultry enactment. ”

“ Many of these turkeys are sold in New York. Section 193 of New York's Agriculture and Markets Law, McKinney's Consol.Laws, c. 69 [2] has been interpreted through regulations and rulings to require that these packaged turkeys be sold with labels informing the public of the weight of the unstuffed bird as well as of the entire package. ”

“ Efforts were made in Congress to limit in various ways the jurisdiction of federal courts in these sensitive areas. [11] State officials spoke out against the obstruction and delay occasioned by these federal injunction suits. [12] The sponsor of the bill establishing the three-judge procedure for these cases, Senator Overman of North Carolina, noted:
' (T) here are 150 cases of this kind now where one federal judge has tied the hands of the state officers, the governor, and the attorney-general * * *. ”

“ Although various types of state legislation were being challenged in injunctive suits, see Lockwood, Maw, and Rosenberry, The Use of the Federal Injunction in Constitutional Litigation, 43 Harv.L.Rev. 426 (1930) , most numerous and prominent were the railroad cases. Senator Overman noted that '* * * nine out of ten of the cases where application for an injunction has been made to test the constitutionality of state statutes have been railroad cases.' 45 Cong.Rec. 7254 (1910) .↑ E.g., Spooner v. McConnell, 22 Fed.Cas. 939 (No. 13245) (1838) .↑ See S. J. Buck, The Granger Movement, esp. ”

“ Jackson, The Struggle for Judicial Supremacy 48-68 (1949) ; 2 Warren, The Supreme Court in United States History 574 599 (1935) . For the related story of the use of the equity power in the labor field, see Frankfurter and Greene, The Labor Injunction (1930) .↑ See Hutcheson, supra, at 803-804.↑ See, e.g., 45 Cong.Rec. ”