Linus C. Pauling v. Robert S. McNamara

331 F.2d 796

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 18, 1964
• Docket: 17797
• Status: Published

Opinions

BURGER, Circuit Judge.

This appeal presents, for the second time in less than three years, an effort to enlist judicial power to stop all nuclear testing, including underground tests.

The complaint¹ filed by appellants sought a declaratory judgment to restrain and enjoin the Secretary of Defense and the members of the Atomic Energy Commission from detonating any nuclear weapons that produce radiation or radioactive atomic nuclei or alternatively to issue such injunction effective only when, and if, a similar injunction is issued by the Supreme Court of the Union of Soviet Socialist Republics from which, it is alleged, similar relief is being sought.

The District Court granted appellee’s motion to dismiss the complaint on the grounds that (1) plaintiffs had no standing to sue; (2) the complaint failed to state a justiciable controversy, (3) the actions and powers challenged were plainly authorized by law and the Constitution, and (4) the holding of the Court of Appeals, which affirmed the dismissal of a complaint in Civil Action ISTo. 866-58, was res judicata.²

m, a • x n 4. „„ , • The District Court was plainly correct „ . , on a pom s.

In light of the historic limits on judi•cial power vis-a-vis the other coordinate branches of government and especially in light of our prior clear holding that a ■claim such as now asserted presents no justiciable controversy,³ it is difficult to escape an impression that the appellants, no matter what their motives, may be more interested in exploiting the judicial process as an^ implement of propaganda than in securing any judicial mandates that could conceivably be anticipated.

As recently as 1950 Mr. Justice Frankfurter restated in very broad terms the scope of federal judicial power:

“Limitation on ‘the judicial Power of the United States’ is expressed by the requirement that a litigant must have ‘standing to sue’ or, more ■comprehensively, that a federal court may entertain a controversy only if it is justiciable.’ Both characterizations mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed.’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150, 71 S.Ct. 624, 95 L.Ed. 817 (1950) (separate opinion).

In our 1960 holding we tried, perhaps too tersely because the point seemed so plain, to make clear that decisions in the large matters of basic national policy, as of foreign policy, present no judicially cognizable issues and hence the courts are not empowered to decide them. We paraphrase our earlier opinion in em- , . . ,, , , , : ... ,, phasizmg that to temporize with these fundamental propositions by holding this case moot because the United States is presently committed to a suspension of atmospheric testing is to take some risk, however slight or remote, of seeming to invite further resort to the courts should testing be resumed. We are unwilling to suggest, even so indirectly, any erosion 0f the fundamental principle that the executive action challenged by the plead--¡ngS piain¡y falls jn that area where the Executive and Legislative Branches are gupreme and finalj reviewable only by the electorate, not by the courts. The language of the Court in Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948), is very much in point here;

«Such deeisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate; complex, and involve large elements of propheey. They are and should be undertaken onjy by thoge directly responsible to the people whose we]fare they adyance or imperiL They are deeisions of a kind for whieh the Judiciary has neither aptitudS) faciiities nor responsibility and which has long been held to belong in the domain of political p0Wer not gubject to judiciaI intru_ gion or inquiry. [Citing Coleman v. Miller, 307 U.S. 433; 454, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); United States v. Curtiss-Wright Corp., 299 U.S. 304, 319-321, 57 S.Ct. 216, 81 L.Ed. 255 (1936) ; Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918)].⁴

That appellants now resort to the courts on a vague and disoriented theory that judicial power can supply a quick and pervasive remedy for one of mankind’s great problems is no reason why we as judges should regard ourselves as some kind of Guardian Elders ordained to review the political judgments of elected representatives of the, people. In framing policies relating to the great issues of national defense and security, the people are and must be, in a sense, at the mercy of their elected representatives. But the basic and important corollary is that the people may remove their elected representatives as they cannot dismiss United States Judges. This elementary fact about the nature of our system, which seems to have escaped notice occasionally must make manifest to judges that we are neither gods nor godlike, but judicial officers with narrow and limited authority. Our entire System of Government would suffer incalculable mischief should judges attempi/ to interpose the judicial will above that of the Congress and President, even were we so bold as to assume that we can make better decisions on such issues.

Affirmed.

1 . The complaint purports to assert a class action on behalf of 115 U.S. citizens and more than 100 aliens, including nationals of several neutral and friendly nations, and of Poland, Czechoslovakia and Hungary.

2 . Pauling v. McElroy, 107 U.S.App.D.C. 372, 374, 278 F.2d 252, 254, cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960).

3 . Ibid.

4 . Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), cited by the dissent, is not in point; that case held only that the penal sanction of automatic forfeiture of United States citizenship could not be imposed without due process.