Judicial Overturn

When historians of the Supreme Court begin to write of the decade since 1932, they will be forced to give many a page to the antics of Jehovah's Witnesses. This little sect of religious zealots has caused the Court more headaches than any other group, and now it may lead the Court to the rarest of all judicial acts--reversal of an earlier decision. Last Monday the nine Justices announced that they would hear a second case involving Witnesses who refuse to salute the flag in public schools, and the history of the famous 1940 "Flag-Salute Case" indicates that a change of opinion may be forthcoming.

In the same month that saw Hitler's Low Countries Blitz and the obliteration of the French Republic, the Supreme Court held by an eight-to-one vote that a student whose religious scruples prohibited his saluting the flag could be dismissed from the public schools. That decision was a sudden shift from an outstanding ten-year record of liberality in civil-liberties cases. Then, a year later, three members of the majority recanted publicly, stating that they had been in error in the original decision. Justices Black, Douglas, and Murphy did not, however, reveal their reasons for voting with the majority.

Only one interpretation of the strange decision seems to hold water. With Hitler's armies smashing through France and with England apparently close to invasion, the Court began to suffer from a combined attack of war hysteria and patriotic jitters. After the tension had relaxed, three Justices saw their mistake and corrected it.

No decision in the past five years has harmed the Court so much as that of the "Flag-Salute Case." Sometime this term, another case involving an identical set of facts will come up for consideration. The Supreme Court will then have a chance to leave the siding on which it has been parked and get back on the main track in civil liberties questions. It can prove that a healthy nation need not force children to violate their religious principles by chanting what to them is a mere formula.