IN DEFENSE OF THE SUPREME COURT\u27S PICKETING DOCTRINE

Picketing, pursued by state prohibition, has now found sanctuary in the Constitution. The Fourteenth Amendment recognizes it as free speech. But not always, says the majority of the Court. There has been sharp fire from both the Right and the Left. The criticism runs much as it did against the Duke of York\u27s generalship of his men. When they were half-way up they were neither up nor down. In a recent article Mr. Teller argues that picketing is not an exercise of free speech and should never have been constitutionally guaranteed as such. It was the first mistake of the Court that it did just that. Then, having carried the fort, the majority led by Justice Frankfurter fell back into a confused retreat which plunges into obscurity both the principle of protection and the principle of limitation. Incidentally, it established a precedent that the constitutional protection of a civil liberty may be qualified. This is far worse than that there be no protection at all. For Mr. Teller, half a loaf is worse than none. Justice Frankfurter is in even greater discredit with a distinguished and powerful wing of his own brethren and the important section of public opinion which it both leads and reflects. It is apparent to Justice Douglas that picketing is essentially a coercive technique. Its protection as free speech was necessarily a protection of its coercive effect, and as free speech (and here the two critics join hands) it cannot be qualified. Justice Frankfurter, in attempting qualification, either did not understand the implications of his own decision in the Swing case, or has not the courage to carry them through. Thus is the majority of the Court sadly boxed between two such traps of steely, inexorable logic. Yet there is a glimmer of comfort for the infralogical mind in the fact that such strong logic can arrive at quite opposite conclusions

Ripeness and Reviewable Orders in Administrative Law

The requirement of ripeness as a condition for judicial review is not so much a definable doctrine as a compendious portmanteau, a group of related doctrines arising in diverse but analogically similar situations. In its most general sense ripeness is a requirement not of the administrative action to be reviewed but of the judicial controversy between the plaintiff and the agency. Consider the case where an agency has gone no further than to threaten a certain action which the plaintiff in an equity or declaratory proceeding claims would be contrary to law: here, in all strictness, the controversy concerns not the legality of an administrative action but the construction of a statute or of the Constitution. Whether such cases are ripe for judicial intervention may involve not only the proper relation of agency and court but the existence of a controversy suitable for judicial determination. On the other hand, an agency may have taken definitive action; it may have, for example, promulgated a regulation or issued a complaint, served a subpoena or denied intervention. Whether these actions can be tested forthwith raises questions which are sometimes discussed under the rubric ripeness, sometimes exhaustion of remedies, sometimes standing. Discussion under any of these rubrics may suffice, but in certain cases the issue is faced more squarely under one than under another. In the famous Columbia Broadcasting System case, I would say that the question was primarily one of standing, since there were no administrative remedies available to the plaintiff; it was at least possible, though not likely, that those who could pursue such remedies might never invoke them. In short, the question was not so much whether the controversy was ripe but whether there was or at any time would be a justiciable controversy between the plaintiff and the defendant