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The 1957 Employers' Liability Cases

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On February 25, 1957, the Supreme Court decided three personal injury cases arising under the Federal Employers’ Liability Act of 1908 (FELA) and a fourth under a related statute. On their face, these suits addressed only mundane aspects of tort law.

One of the appeals, for example, dealt with a railway conductor’s attempt to recover damages for a bruised hip caused by a train making an abrupt stop. Yet, these cases occasioned an unusually public rift between the Court’s majority and one of its most prominent members, Justice Felix Frankfurter. For Justice Frankfurter, the decision to review these cases clashed with modern conceptions of the Supreme Court as a body charged with setting broad legal rules for the nation, rather than with correcting errors in everyday lawsuits. Concerned by this departure from what he perceived to be the Court’s proper role, Frankfurter took the extraordinary step of refusing to render a vote in the cases. This protest precipitated the unusual circumstance of a further opinion in which Justice John Marshall Harlan stated for the Court that Justice Frankfurter did not have the right to abstain in protest. The tension between the justices over these otherwise unremembered cases highlights the competing visions of the Supreme Court’s role that unfolded in the middle of the last century.

To grasp the symbolic importance of the 1957 employers’ liability cases, it is necessary to understand a little about changes to the Supreme Court’s appellate process during the first half of the twentieth century. While the Supreme Court had routinely heard appeals in quotidian common-law suits throughout much of the nineteenth century, many judges and academicians had come to view the Court’s role differently by the early 1900s. Chief Justice William Howard Taft, for example, argued that the Court did not exist “to preserve the rights of the litigants” in individual cases. Federal courts of appeals and state appellate courts performed that function by reviewing trial-court decisions for errors. Taft argued that the Supreme Court’s role was “expounding and stabilizing principles of law for the benefit of the people of the country, passing upon constitutional questions and of other important questions of law for the public benefit.”

The Judges’ Bill of 1925 aimed to reify this vision by giving the justices control over most of their docket. Although a small subset of cases could still be appealed to the Court as a matter of right, in most instances litigants now had to petition the Court to review their case. As Taft had anticipated, the cases the justices opted to hear under this system typically presented legal issues of national significance or questions on which the courts of appeals had reached contradictory results.

FELA suits formed perhaps the most important exception to this general rule. An early attempt to combat the unsafe working conditions brought about by the expansion of America’s rail network, FELA permitted railway employees to sue their companies if they were injured while performing work involved in interstate commerce. As interpreted by the courts, the statute called on both state and federal courts to apply a national common law of negligence to FELA cases. This distinguished FELA suits from the run of tort cases, which usually arrived in the federal courts as diversity-jurisdiction cases between parties from different states. Following the Court’s landmark decision in Erie Railroad Co. v. Tompkins (1938), the federal courts applied state law in such disputes. FELA cases, however, allowed federal judges to continue interpreting tort law as they saw fit, and the Supreme Court regularly stepped in on appeal to shape the evolution of that body of law. This may partly account for the Court’s willingness to continue hearing FELA appeals long after review became optional. Both the Judges’ Bill and a 1916 precursor aimed specifically at FELA appeals gave the justices broad latitude to reject the appeals, but they continued to review FELA cases on a regular basis for decades.

Most of the Supreme Court’s early FELA decisions limited workers’ ability to recover damages against their employers. Some of these rulings interpreted tort doctrines in the railroads’ favor, some adopted a narrow view of interstate commerce, and others held that FELA precluded relief under more permissive state negligence and workers’ compensation schemes. By the late 1930s, however, many observers claimed that the Court’s FELA jurisprudence had begun to shift in favor of permitting employees to recover damages for a broader set of claims. In particular, the justices began applying a more liberal standard regarding the quanta of evidence required to sustain plaintiffs’ verdicts against railroads. In a 1949 case, the Court noted that recent FELA decisions had established this “standard of liberal construction” to serve “the Act’s humanitarian purposes[.]” Justice William O. Douglas put it even more bluntly in a concurring opinion in another case decided the same year. FELA, he stressed, was designed to “put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations,” and the Court should interpret the law accordingly.

Some of the Court’s members objected to this new trend in employers’ liability cases. While some of these objections hinged on the details of individual decisions, perhaps the most significant reservations lay with the choice to hear appeals in the first place. Justices concerned with the grant of review in such cases reasoned that the Court should not be in the business of deciding simple tort suits based on determinations that were unlikely to be strong guides for future cases.

The breaking point between the justices opposed to FELA review and those regularly voting to hear such cases came in 1957. The Court granted certiorari in three FELA appeals, as well as a fourth case decided under the Jones Act, which used the same tort standards as FELA. In two of the FELA appeals, the Court’s majority reinstated jury verdicts in favor of plaintiffs on the ground that appellate courts had applied too rigorous a test for the sufficiency of evidence in overturning the verdicts. In the third case, the Court held against a railway worker on distinct grounds. But it was the decision to review the cases that precipitated the greatest division between the justices.

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In Rogers v. Missouri Pacific Railroad Co. (1957), a six to three majority voted to reinstate a jury verdict for an injured railroad employee after the Missouri Supreme Court had reversed the verdict. Writing for five of the six justices in the majority, Justice William Brennan reasoned that the employee had produced enough evidence for the jurors to conclude that his fall down an embankment while fleeing a brushfire had been caused by his supervisors’ negligence. In Webb v. Illinois Central Railroad Co. (1957), the same configuration of justices reinstated a federal jury’s verdict for another worker injured in a fall, this time due to a large, concealed piece of cinder ballast (“clinker”) near a track. The Court reversed the U.S. Court of Appeals for the Seventh Circuit’s determination that the worker had not introduced enough evidence to show that the clinker was present through the railroad’s negligence.

Justice Brennan’s opinion in Rogers anticipated Justice Frankfurter’s objection that the Court should not have reviewed the cases. Brennan acknowledged that the Court had been unusually “vigilant to exercise its power of review in any case where it appears that the litigants have been improperly deprived [of the right to a jury in a FELA case].” That the Court had recently sided with the plaintiffs “in a relatively large percentage of the cases reviewed,” was hardly surprising since “special and important reasons for the grant of certiorari in these cases [were] certainly present” where courts had invalidated a plaintiff’s jury verdict.

In the third case, Herdman v. Pennsylvania Railroad Co. (1957), however, the Court did not rule for the plaintiff. There, eight justices voted to affirm the Court of Appeals for the Sixth Circuit’s directed verdict for a railroad against the conductor who had injured his hip during an abrupt stop. Again writing for the majority, Brennan reasoned that the conductor had not adduced any evidence indicating negligence on the part of his coworkers or employers, and thus could only rely on a res ipsa loquitor (“the thing speaks for itself”) instruction. Such an instruction permits jurors to infer negligence if the manner of the injury is such that it could not ordinarily occur in the absence of a breach of the duty of care. However, Brennan reasoned that trains might need to make sudden stops for any number of reasons. Such stops occasionally injured those on board regardless of whether the train was properly or negligently operated, such that the conductor was not entitled to a res ipsa loquitor instruction. Despite the result in Herdman, the decision to review the trial court’s directed verdict was arguably consistent with Brennan’s suggestion that greater scrutiny was required when judges made rulings that reversed (or in this instance precluded) jury decisions in FELA cases. And, indeed, in the non-FELA companion suit, the Court reversed a decision granting a directed verdict against an employee injured while scooping ice cream aboard a ship on the grounds that he had produced enough evidence to go to a jury.

Frankfurter was unpersuaded. In a lengthy dissent covering all four cases, he claimed that the Court should not review any appeals of this nature, let alone prioritize appeals where plaintiffs had lost. Unusually, he began his dissent with a quote from Harvard Law Professor Paul Freund’s 1956 address to the American Historical Association on “The Liberalism of Justice Brandeis.” According to Freund, “Despite the human appeal of [FELA] cases, [Justice Louis] Brandeis never allowed himself to regard them as the proper business of the appellate jurisdiction of the Supreme Court.” Frankfurter suggested that Brandeis had properly understood what the majority appeared to have forgotten: The Court’s job was to hear only those cases that addressed important national issues likely to be repeated in subsequent cases. Moved by the “human appeal” of employer liability suits, Frankfurter claimed, the Court had imprudently abandoned this role.

Significantly, Frankfurter’s dissent did not simply take issue with the Court’s reasoning regarding the merits of the suits. Rather, Frankfurter bluntly refused to take any position on cases that, he argued, should never have been under consideration in the first place. Responding to this unusual state of affairs, Justice Harlan (who had himself dissented on the merits in all the cases except Herdman) wrote a separate opinion on behalf of the remaining justices stating that once four justices had voted to hear a case, all the others had to pass on the case. Frankfurter could dissent, but (presumably barring grounds for recusal or absence), he had to participate.

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Justice Frankfurter remained defiant, claiming that “not four, not eight, Justices can require another to decide a case that he regards as not properly before the Court.” Frankfurter explained that “for many years, I reluctantly voted on the merits of these negligence cases …, [but] I have found it increasingly difficult to acquiesce in a practice that I regard as wholly incompatible with the certiorari policy.” Frankfurter appended to his dissent a list of the FELA petitions granted by the Court and summary of the result in each case, which intimated a clear transition from pro-defendant to pro-plaintiff outcomes. “I would not continue a bad practice to aid a few plaintiffs,” Frankfurter wrote, “because there was once a bad practice that aided a few defendants. One still does not commit two wrongs to ‘do right.’”

Frankfurter’s private correspondence suggests that he reacted bitterly to Harlan’s response to his dissent. Frankfurter surreptitiously questioned Harlan’s “conscience” and the others’ knowledge of the law of negligence. Even his public dissent, moreover, evinced an urgency and depth of emotion that belied the seemingly simple issues presented in these cases. It was redolent of an underlying tension between the desire to do justice to individual litigants and the need to establish broad precedents in cases to come that is at the heart of the judicial role. For Brennan and others in the majority, the humanitarian promise of FELA militated in favor of making an exception to the Court’s usual appellate policy. For Frankfurter, adherence to that policy, and thus to what he deemed the Court’s proper role as an institution, took precedence over the considerations of any individual case. Indeed, in a subsequent dissent later in 1957, Frankfurter suggested that the Court’s policy amounted to an abuse of judicial discretion that he was ethically bound to protest.

The Supreme Court continued to review FELA cases in the years following the feud between Frankfurter and his brethren. In the first few years, some of these cases continued to revolve around case-specific questions like the sufficiency of evidence. With time, however, this became a less prominent feature of the Court’s FELA jurisprudence. Increasingly, the Court became more apt to take only those FELA cases that presented major legal questions. In Parden v. Terminal Railway Co. (1964), for example, the Court divided sharply as to whether FELA abrogated states’ sovereign immunity. Although FELA remains in force and continues to provide a conduit for workers’ suits, the Court seldom hears cases of the sort that occasioned such powerful debate in 1957.

Winston Bowman, Associate Historian
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Further Reading:
Leiman, Joan Maisel. “The Rule of Four.” Columbia Law Review 57, no. 7 (1957): 975–992.

Purcell, Edward A., Jr. Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958. New York: Oxford University Press, 1992.


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