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Minority Control of Court Decisions in Ohio
Published online by Cambridge University Press: 01 August 2014
Extract
The experience of Ohio with the requirement of concurrence of an extraordinary majority of the Supreme Court to declare a statute invalid is an illuminating commentary on the desirability of such a restriction. Much has been spoken and written on both sides of the question. Those who have seen laws embodying worth-while reforms invalidated by the courts, many times by bare majority decisions, have campaigned for a curtailment of the judicial prerogative. Publicists have expatiated on the evils of the situation. Textbook writers have embodied the arguments in their discussions. Teachers, it is to be feared, have quite glibly enlarged upon the necessity of unseating our “judicial obligarchy.”
The late President Theodore Roosevelt, addressing the Ohio constitutional convention in 1912, urged that body to propose an amendment providing for the recall of judicial decisions. He failed to convince the convention of the desirability of his remedy, but he succeeded in creating a feeling that something must be done; and an amendment to the judiciary article was adopted, reading as follows: “No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring the law unconstitutional and void.” Since the Supreme Court is composed of a chief justice and six associate justices, the restriction amounts to a requirement of the concurrence of six justices in decisions of this kind.
- Type
- American Government and Politics
- Information
- Copyright
- Copyright © American Political Science Association 1930
References
1 Art. IV., sect. 2.
2 Professor Holcombe errs in stating that the Ohio plan “provided simply that statutes should not be declared unconstitutional by the lower courts, nor by the Supreme Court unless at least six of the seven judges concurred in the decision.” State Government in the United States (rev. ed., 1926), p. 451Google Scholar.
3 For a list of resolutions offered in Congress, see Warren, Charles, Congress, the Constitution, and the Supreme Court (Boston, 1925), note to Ch. VI, pp. 220–221Google Scholar.
4 98 Ohio St. 446, 121 N. E. 646. Decided April 2, 1918.
5 Sect. 5052, General Code.
6 Morton v. State of Ohio, 105 Ohio St. 366, 138 N. E. 45 (1922); Royal Green Coach Co. v. Public Utilities Commission, 110 Ohio St. 41, 143 N. E. 547 (1924). In the Morton case, the statute was declared unconstitutional, though there is evidence that some of the judges were not fully convinced but concurred. The writer of the opinion in the Coach case believed the statute unconstitutional, but does not state how many of the justices agreed with him on that point. The case being heard by only six judges, the question might also be raised as to whether a unanimous concurrence would have been necessary to declare the statute void. The judge implies in the opinion that it would have been necessary.
7 116 Ohio St. 732, 158 N. E. 171. Decided March 29, 1927.
8 117 Ohio St. 622, 160 N. E. 855. Decided October 26, 1927.
9 Constitution, Art. XVIII, Sect. 3.
10 117 Ohio St. 507, 159 N. E. 564. Decided December 21, 1927.
11 108 Ohio St. 513, 141 N. E. 551. Decided November 13, 1923.
12 Section 1465-74, General Code.
13 116 Ohio St. 45, 156 N. E. 101. Decided March 8, 1927.
14 Section 1465-75, General Code, as amended, 111 Ohio Laws 218.
15 Section 3963, General Code. The clause relating to charitable institutions was held unconstitutional in Euclid v. Camp Wise Association, 102 Ohio St. 207, 131 N. E. 349. March 29, 1921.
16 City of East Cleveland v. Board of Education, 112 Ohio St. 607, 148 N. E. 350. May 26, 1925.
17 See note 15 above.
18 Constitution, Art. II, Sect. 26.
19 118 Ohio St. 295, 160 N. E. 902. Decided April 4, 1928.
20 Syllabus, paragraph 2.
21 27 Ohio Appellate 4, 160 N. E., 637. Decided June 10, 1927.
22 State, for the Benefit of Bredwell, et al. v. Hershner, et al., 118 Ohio St. 555, 161 N. E. 334. Decided April 18, 1928.
23 Hertz v. Woodman, 218 U.S. 205, 30 Supr. Ct. 621, 54 L. Ed. 1001, which cited several other cases as precedents.
24 Warren, Charles, Congress, the Constitution, and the Supreme Court (1925), Ch. IXGoogle Scholar.
25 The question of reasonable doubt has been covered thoroughly by Cushman, R. E. in “Constitutional Decisions by a Bare Majority of the Court,” 19 Michigan Law Review 771–803 (1921)CrossRefGoogle Scholar. See also Charles Warren, op. cit.; Hughes, Charles E., The Supreme Court of the U. S. (1928), pp. 237–241Google Scholar.
26 See Dicey, A. V., Law of the Constitution (8th ed.), pp. 154ffGoogle Scholar, and other authors cited.
27 Since this article was written, two additional cases have been reported in which a minority of the court determined the decision. State, ex rel. Bryant v. Akron Metropolitan Park District for Summit County, et al. (166 N.E. 407, March 27, 1929) upheld the constitutionality of the Park District Act (Sections 2976-1 to 2976-10i, General Code). Two judges concurred in the opinion. On the same day, the same judges upheld the Sanitary District Act (Sections 6602-34 to 6602-106, General Code), in Shook, et al. v. Mahoning Valley Sanitary District, et al. (166 N.E. 415). One judge did not participate in the latter case.
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