A similar situation arose in 1967, when the House of Representatives refused to seat Adam Clayton Powell Jr., the outspoken congressman from Harlem accused of personal misconduct involving public funds. I was clerking for Justice Hugo Black two years later when he joined in the Supreme Court decision that the House lacked the power to deal with Powell’s conduct by refusing to seat him.
In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.
This is an interesting point. Because Justice Black viewed the refusal to seat dissident legislators in England as one of the worst abuses of power, he voted to reach out and decide a case that was basically moot. To wit, Dellinger endorses the Court's "refusal to avoid the Constitutional quagmire" (indeed, the Court went well out of its way to jump into the Constitutional quagmire to decide a mooted case). I would have felt better if Black's strong feelings on the meaning of US Constitution had been his motivation to decide Powell as opposed to his views on the practices in England. In his dissent in Powell, Justice Potter Stewart wrote:
I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception. The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners' prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.
. . . [O]n January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Understandably, neither the Court nor the petitioners advance the wholly untenable proposition that the continuation of this case can be founded on the infinitely remote possibility that Congressman Powell, or any other Representative, may someday be excluded for the same reasons or in the same manner. And because no foreseeable possibility of such future conduct exists, the respondents have met their heavy burden of showing that "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 393 U. S. 203.
. . . [D]ismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim, [Footnote 3/25] and it would avoid the necessity of deciding constitutional issues which, in the petitioners' words, "touch the bedrock of our political system [and] strike at the very heart of representative government." If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-348 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold.
"We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations." Public Affairs Press v. Rickover, 369 U. S. 111, 369 U. S. 112. "Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative." Eccles v. Peoples Bank of Lakewood Village, 333 U. S. 426, 333 U. S. 431.
In short, the case Dellinger relies upon is hardly a model of restraint. Quite the opposite. It is ironic to see it used to urge restraint on the Senate.
Speaking for me only
