Roberts Memorandum (November 9, 1945)
Justice Owen J. Roberts
A petition for certiorari was filed in Morehead v. Tipaldo, 298 U.S. 587, on
March 16, 1936. When the petition came to be acted upon, the Chief Justice spoke in favor
of a grant, but several others spoke against it on the ground that the case was ruled by Adkins
v. Children's Hospital, 261 U.S. 525. Justices Brandeis, Cardozo and Stone were in
favor of a grant. They, with the Chief Justice, made up four votes for a grant.
When my turn came to speak I said I saw no reason to grant the writ unless the Court
were prepared to re-examine and overrule the Adkins case. To this remark there was
no response around the table, and the case was marked granted.
Both in the petition for certiorari, in the brief on the merits, and in oral
argument, counsel for the State of New York took the position that it was unnecessary to
overrule the Adkins case in order to sustain the position of the State of New York.
It was urged that further data and experience and additional facts distinguished the case
at bar from the Adkins case. The argument seemed to me to be disingenuous and born
of timidity. I could find nothing in the record to substantiate the alleged distinction.
At conference I so stated, and stated further that I was for taking the State of New York
at its word. The State had not asked that the Adkins case be overruled but that it
be distinguished. I said I was unwilling to put a decision on any such ground. The vote
was five to four for affirmance, and the case was assigned to Justice Butler.
I stated to him that I would concur in any opinion which was based on the fact that
the State had not asked us to re-examine or overrule Adkins and that, as we found
no material difference in the facts of the two cases, we should therefore follow the Adkins
case. The case was originally so written by Justice Butler, but after a dissent had
been circulated he added matter to his opinion, seeking to sustain the Adkins case
in principle. My proper course would have been to concur specially on the narrow ground I
had taken. I did not do so. But at conference in the Court I said that I did not propose
to review and re-examine the Adkins case until a case should come to the Court
requiring that this should be done.
August 17, 1936, an appeal was filed in West Coast Hotel Company v. Parrish,
300 U.S. 379. The Court as usual met to consider applications in the week of Monday,
October 5, 1936, and concluded its work by Saturday, October 10. During the conferences
the jurisdictional statement in the Parrish case was considered and the question
arose whether the appeal should be dismissed on the authority of Adkins and Morehead.
Four of those who had voted in the majority in the Morehead case voted to dismiss
the appeal in the Parrish case. I stated that I would vote for the notation of
probable jurisdiction. I am not sure that I gave my reason, but it was that in the appeal
in the Parrish case the authority of Adkins was definitely assailed and the
Court was asked to reconsider and overrule it. Thus, for the first time, I was confronted
with the necessity of facing the soundness of the Adkins case. Those who were in
the majority in the Morehead case expressed some surprise at my vote, and I heard
one of the brethren ask another, "What is the matter with Roberts?"
Justice Stone was taken ill about October 14. The case was argued December 16 and
17, 1936, in the absence of Justice Stone, who at that time was lying in a comatose
condition at his home. It came on for consideration at the conference on December 19. I
voted for an affirmance. There were three other such votes, those of the Chief Justice,
Justice Brandeis, and Justice Cardozo. The other four voted for a reversal.
If a decision had then been announced, the case would have been affirmed by a
divided Court. It was thought that this would be an unfortunate outcome, as everyone on
the Court knew Justice Stone's views. The case was, therefore, laid over for further
consideration when Justice Stone should be able to participate. Justice Stone was
convalescent during January and returned to the sessions of the Court on February 1, 1937.
I believe that the Parrish case was taken up at the conference on February 6, 1937
and Justice Stone then voted for an affirmance. This made it possible to assign the case
for an opinion, which was done. The decision affirming the lower court was announced March
These facts make it evident that no action taken by the President in the interim had
any causal relation to my action in the Parrish case.
- [After Justice Roberts resigned from the bench Felix Frankfurter prevailed upon him to
explain his motivations in his vote in the Parrish case. Ten years later
Frankfurter published Roberts' Memorandum in the December, 1955 issue of the University
of Pennsylvania Law Review]