Speech #780224516

A majority of the whole Court had not then concurred. and. therefore. the case had been ordered to be reargued under the practice announced by the Chief Justice. This practice was undoubtedly founded on the sound principle that when the Constitution of the United States was involved a decision by a majority of the full Court would carry more weight and receive more public confidence than a decision by a mere majority of a quorum of Justices present. which is always of doubtful validity in any case. The records will show that this practice of Chief Justice Marshall was followed in 1845 by the Court under Chief Justice Taney in the case of Smith against Turner. involving the constitutionality of a New York immigrant law. At that time. owing to two vacancies on the bench and a division of opinion among the other seven Justices. there was no opinion concurred in by a majority of the full Court. and accordingly the case was ordered for reargument and not decided until 1849. In the recent insurance case. unfortunately. the four Justices rendering the opinion did not see fit to follow the practice of the Court by waiting before rendering their opinion until a majority Court should concur in a decision on the grave constitutional questions involved.