I used to say that, as Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.
¶ "Advocacy Before the Supreme Court," Morrison Lecture, California State Bar (23 Aug 1951)
Reprinted in the Cornell Law Quarterly (Fall 1951) (full text). Also cite "Advocacy Before the Supreme Court," 37 A.B.A.J. 801, 803 (1951)
A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert.
¶ American Communications Ass'n v. Douds, 339 U.S. 382 70 S. Ct. 674, 94 L. Ed. 925 [1950]
It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.
¶ American Communications Association v. Douds, 339 U.S. 382, 442 (1950)
It is plain that there is wide variety in American religious taste. The [defendants] are not alone in catering to it with a pretty dubious product.
¶ United States v. Ballard, 322 U.S. 78 (dissenting) (1944)
[T]he price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.
¶ United States v. Ballard, 322 U.S. 78 (dissenting) (1944)
It is hardly lack of due process for the Government to regulate that which it subsidizes.
¶ Wickard v. Filburn, 317 U.S. 131 (1943)
No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.
¶ Concurring opinion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.
¶ Concurring opinion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
[T]he effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom[...] This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and, above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse.
¶ Dissent, Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
¶ Majority opinion, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts. One's rights to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
¶ Majority opinion, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice.
¶ Opening remarks at Nuremberg Trial of Hermann Goering (1946)
