Pauling v. McNamara

• Decision Date: 23 December 1963
• Docket Number: No. 17797.,17797.
• Citation: 331 F.2d 796
• Parties: Linus C. PAULING et al., Appellants, v. Robert S. McNAMARA et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

331 F.2d 796 (1963)

Linus C. PAULING et al., Appellants, v. Robert S. McNAMARA et al., Appellees.

No. 17797.

United States Court of Appeals District of Columbia Circuit.

Argued November 15, 1963.

Decided December 23, 1963.

Petition for Rehearing Denied January 23, 1964.

Certiorari Denied May 18, 1964.

Mr. Francis Heisler, Chicago, Ill., with whom Mr. Oliver Ellis Stone, Washington, D. C., was on the brief, for appellants.

Mr. John C. Eldridge, Attorney, Department of Justice, for appellees. Asst. Atty. Gen. John W. Douglas, Messrs. David C. Acheson, U. S. Atty., Sherman L. Cohn and David J. McCarthy, Jr., Attorneys, Department of Justice, were on the brief for appellees. Mr. Morton Hollander, Attorney, Department of Justice, also entered an appearance for appellees.

Miss Marie S. Klooz, Washington, D. C., filed a brief on behalf of Austrian Pacifist Union, et al., as amici curiæ, urging reversal.

Before BAZELON, Chief Judge, and BASTIAN and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied January 23, 1964.

Certiorari Denied May 18, 1964. See 84 S.Ct. 1336.

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 No. 866-58, was res judicata.²

The District Court was plainly correct on all points.

In light of the historic limits on judicial power vis-à-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 emphasizing 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 of the fundamental principle that the executive action challenged by the pleadings plainly falls in that area where the Executive and Legislative Branches are supreme and final, 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 decisions 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 prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion 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...