FRANKFURTER, J., concurring. 335 U.S. garchic because it professes to act in the service of humane ends. As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a pace." Judges appointed for life whose decisions run counter to prevailing opinion cannot be voted out of office and supplanted by men of views more consonant with it. They are even farther removed from democratic pressures by the fact that their deliberations are in secret and remain beyond disclosure either by periodic reports or by such a modern device for securing responsibility to the electorate as the "press conference." But a democracy need not rely on the courts to save it from its own unwisdom. If it is alert-and without alertness by the people there can be no enduring democracy-unwise or unfair legislation can readily be removed from the statute books. It is by such vigilance over its representatives that democracy proves itself. Our right to pass on the validity of legislation is now too much part of our constitutional system to be brought 15 id. at 480, 487; to Edward Livingston, March 25, 1825, 16 id. at 112. See also the passage of Jefferson's Autobiography reprinted in 1 Writings, supra, at 120-22. And see Commager, Majority Rule or Minority Rights 28-38 (1943). 17 In time, of course, constitutional obstacles may disappear or be removed. Yet almost twenty years elapsed between invalidation of the income tax in Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601, and adoption of the Sixteenth Amendment. And it took twenty years to establish the constitutionality of a minimum wage for women: it was put in jeopardy by an equally divided Court in Stettler v. O'Hara, 243 U. S. 629, and found unconstitutional in Adkins v. Children's Hospital, 261 U. S. 525, which was not overruled until West Coast Hotel Co. v. Parrish, 300 U. S. 379, 400. The frustration of popular government, moreover, is not confined to the specific law struck down; its backwash drowns unnumbered projects that might otherwise be put to trial. 538 RUTLEDGE, J., concurring. into question. But the implications of that right and the conditions for its exercise must constantly be kept in mind and vigorously observed. Because the Court is without power to shape measures for dealing with the problems of society but has merely the power of negation over measures shaped by others, the indispensable judicial requisite is intellectual humility, and such humility presupposes complete disinterestedness. And so, in the end, it is right that the Court should be indifferent to public temper and popular wishes. Mr. Dooley's "th' Supreme Coort follows th' iliction returns" expressed the wit of cynicism, not the demand of principle. A court which yields to the popular will thereby licenses itself to practice despotism, for there can be no assurance that it will not on another occasion indulge its own will. Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling; it is also an exercise in prophecy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people. Its functions can be assumed by this Court only in disregard of the historic limits of the Constitution. MR. JUSTICE RUTLEDGE, concurring.* I concur in the Court's judgment in No. 34, Whitaker v. North Carolina. The appellants were convicted under *[This is also a concurrence in No. 47, Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., and No. 34, Whitaker v. North Carolina, decided together, ante, p. 525.] RUTLEDGE, J., concurring. 335 U.S. a warrant which charged only, in effect, that they had violated the statute "by executing a written agreement or contract" for a closed or union shop. There was neither charge nor evidence that the employer, after the statute became effective, had refused employment to any person because he was not a member of a union. The charge, therefore, and the conviction were limited to the making of the contract. No other provision of the statute is now involved, as the state's attorney general conceded, indeed as he strongly urged, in the argument here. As against the constitutional objections raised to this application of the statute, I agree that the legislature has power to proscribe the making of such contracts, and accordingly join in the judgment affirming the convictions. In No. 27, American Federation of Labor v. American Sash & Door Company, and in No. 47, Lincoln Federal Labor Union v. Northwestern Iron & Metal Company, as against the constitutional questions now raised, 1 The warrant, insofar as is material, charged that the appellants had entered into ". . . an illegal combination or conspiracy in restraint of the right to work and of trade or commerce in the State of North Carolina and against the public policy of the State of North Carolina, by executing a written agreement or contract by and between said employer and said Labor Unions and Organizations or combinations, whereby persons not members of said unions or organizations are denied the right to work for said employer, or whereby membership is made a condition of employment or continuation of said employment by said employer and whereby said named unions acquired an employment monopoly in any and all enterprises which may be undertaken by said employer are required to become or remain a member of a labor union or labor organization as a condition of employment or continuation of employment by said employer whereby said unions acquire an employment monopoly in any and all enterprises entered into by said employer in violation of House Bill #229, Session 1947, General Assembly of North Carolina, Chapter 328, 1947 Session Laws of North Carolina, and particularly sections 2-3 & 5 thereof, and Chapter 75 of the General Statutes of N. C. . . . 538 RUTLEDGE, J., concurring. I am also in agreement with the Court's decision, but subject to the following reservation. Because no strike has been involved in any of the states of fact, no question has been presented in any of these cases immediately involving the right to strike or concerning the effect of the Thirteenth Amendment. Yet the issues so closely approach touching that right as it exists or may exist under that Amendment that the possible effect of the decisions upon it hardly can be ignored. Strikes have been called throughout union history in defense of the right of union members not to work with nonunion men. If today's decision should be construed to permit a state to foreclose that right by making illegal the concerted refusal of union members to work with nonunion workers, and more especially if the decision should be taken as going so far as to permit a state to enjoin such a strike,3 I should want a complete and thorough reargument of these cases before deciding so momentous a question. But the right to prohibit contracts for union security is one thing. The right to force union members to work with nonunion workers is entirely another. Because of this difference, I expressly reserve judgment upon the latter question until it is squarely and inescapably presented. Although this reservation is not made expressly by the Court, I do not understand its opinion to foreclose this question. MR. JUSTICE MURPHY concurs in this opinion insofar as it applies to Nos. 34 and 47. 2 See note 3. 3 The syllogism might well be: The decisions in the present cases permit a state to make "illegal" any discrimination against nonunion workers on account of that status in relation to securing or retaining employment; strikes for "illegal objects" are "unlawful"; "unlawful" strikes may be enjoined; a strike by union members against working with nonunion employees is a strike for an "illegal object"; therefore such a strike may be enjoined. JUNGERSEN v. OSTBY & BARTON CO. ET AL. NO. 7. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.* Argued November 10, 1948.-Decided January 3, 1949. 1. All of the claims of Jungersen Patent No. 2,118,468, for a "method of casting articles of intricate design and a product thereof," held invalid for want of invention. Pp. 561-568. 2. An examination of the prior art as it existed at the time of this alleged invention reveals that every step in the Jungersen method was anticipated; and it appears that Jungersen's combination of these steps was, in its essential features, also well known in the art. Pp. 563-564. 3. Where centrifugal force was common as a means of introducing molten metal into a secondary mould, its use in an intermediate step to force molten wax into a primary mould was not an exemplification of inventive genius such as is necessary to render a patent valid. Pp. 564-567. 4. It is not sufficient to say that jewelry casting is a separate and distinct art where the patent is not restricted to the casting of jewelry and the prior improvements in the art of casting were so obviously applicable to the casting of jewelry that the patentee was bound by knowledge of them. P. 567. 5. Where invention is plainly lacking, the fact that a process has enjoyed considerable commercial success does not render a patent on it valid. Pp. 567-568. 163 F.2d 312, affirmed in part and reversed in part. 166 F. 2d 807, affirmed. Nos. 7 and 8. In a suit for a declaratory judgment that a patent was invalid and not infringed, defendant counterclaimed, alleging infringement and seeking an injunction. The District Court held certain claims valid but not *Together with No. 8, Ostby & Barton Co. et al. v. Jungersen, on certiorari to the United States Court of Appeals for the Third Circuit, and No. 48, Jungersen v. Baden et al., on certiorari to the United States Court of Appeals for the Second Circuit. |