On this day, Justice Frank Murphy was sworn in by the clerk of the Court, Charles Elmore Cropley. When the ceremony finished on February 5, 1940, Murphy followed his new colleagues to take a seat on the court next to Felix Frankfurter.
Murphy was nominated to replace Justice Pierce Butler, who died in November 1939. Murphy had a diverse political career up to that point, having been a judge on the Detroit Criminal Court—the Recorder’s Court—mayor of Detroit, Governor of the Philippines and then Michigan, and finally, Franklin Delano Roosevelt’s Attorney General. During his time on the Recorder’s Court, he presided over maybe the most significant case in the court’s history—that of Ossian Sweet, a black physician charged with the murder of a white man. When Sweet purchased a house on the fringe of a white neighborhood in Detroit, a mob formed to push him out of the neighborhood and when a rock thrown by someone in the mob shattering a window, a volley of gunfire came from the second story of the house, killing one in the crowd and injuring another. The ACLU hired famed defense attorney Clarence Darrow to defend Sweet and after the first trial ended in a hung jury, Sweet was acquitted. Murphy allowed the defense to present Sweet’s previous encounters with racism to the jury to argue the shots had been fired in self-defense and he reportedly described watching Darrow’s closing arguments as “the greatest experience of my life” and called Darrow “the most Christ-like man I have ever known.”
Murphy was not on the court for a full decade, but he wrote several notable opinions defending the civil rights of minority populations. 1944 was by far the most important year on the Court for Murphy.
In Falbo v. United States, a Jehovah’s Witness, who claimed to be a minister, argued that judicial review must be available to test the validity of the decision of the local board classification in a criminal prosecution for willful violation of an order directing a draft registrant to report. The Supreme Court denied the argument, with Murphy the lone dissenter. He said the case represented the “perplexing problem of reconciling basic principles of justice with military necessity in wartime.” Murphy thought the minister, who argued he was arbitrarily classified a “conscientious objector,” should be able to provide evidence in defense to a criminal prosecution for failure to obey the order. Powerfully, Murphy concluded that,
“Experience demonstrates that in time of war individual liberties cannot always be entrusted safely to uncontrolled administrative discretion. Illustrative of this proposition is the remark attributed to one of the members of petitioner's local board to the effect that 'I do not have any damned use for Jehovah's Witnesses.' The presumption against foreclosing the defense of illegal and arbitrary administrative action is therefore strong. Only the clearest statutory language or an unmistakable threat to the public safety can justify a court in shutting the door to such a defense.”
At the same year, the Court decided Korematsu v. United States, upholding the internment of Japanese-Americans by a 6-3 decision. Murphy dissent, along with Justice Jackson and Roberts. His dissent was the first Supreme Court decision to mention “racism,” as he opened his opinion bluntly stating that the order was “legalization of racism” and “This exclusion of ‘all persons of Japanese ancestry, both alien and non-alien,’ from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.” The “obvious racial discrimination” of the order violated the Fifth Amendment Equal Protection and Due Process rights of Japanese-Americans by “excommunicating them without benefit of hearings.” His conclusion was a powerful use of the country’s founding principles, intoning that,
“Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.”
Finally, in Steele v. Louisiana & Nashville Railroad Co., Murphy concurred separately from Chief Justice Harlan Stone’s majority in a case construing the Railroad Labor Act to limit remedies for suits to injunctions and damages for breach of the statutory duty of the bargaining representative to represent and act for the members of a craft without discrimination against Negroes solely because of their race. Murphy harshly condemned, “The utter disregard for the dignity and the wellbeing of colored citizens shown by this record” and felt the case could not be decided “solely upon the basis of legal niceties, while remaining mute and placid as to the obvious and oppressive deprivation of constitutional guarantees, is to make the judicial function something less than it should be.” He felt that the “accident of birth” should not decide claims to individual liberties. Murphy ended his brief opinion by referring to the “cloak of racism surrounding the actions of the Brotherhood in refusing membership to Negroes and in entering into and enforcing agreements discriminating against them, all under the guise of Congressional authority” and warned that “No statutory interpretation can erase this ugly example of economic cruelty against colored citizens of the United States” and that racism was “far too virulent today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation.”
Murphy’s sensitivity to protection of minorities was felt outside the court as well. On January 30, 1944, he helped formed as Committee Chair the National Committee Against Nazi Persecution and Extermination of the Jews to combat Nazi propaganda "breeding the germs of hatred against Jews” and to support the rescue of European Jews. Five years later, Murphy died at 59 from a blood clot.
Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.
