Cain v. Kentucky, 387 U.S. 319 (1970)

In a per curium decision, based on Redrup v. New York (1967), the Supreme Court disposed of Cain v. Kentucky and reversed Kentucky’s ban of public showings of the film ‘‘I, A Woman.’’ Warren Burger, who had been confirmed as Chief Justice in 1969, and Harlan dissented. The Court disposed of two other cases (Hoyt v. Minnesota [1970] and Walker v. Ohio [1970]) in similar fashion, sparking dissents by Blackmun and Burger, respectively.

Until Burger’s appointment, per curiams ‘‘redrupping’’ cases followed a fairly standard format with a simple declaration, ‘‘The judgment is reversed. Redrup v. New York, 386 U.S. 767.’’ Harlan then would provide a dissent that cited his opposition in previous cases that the syllabus would summarize as ‘‘Mr. Justice Harlan would affirm the judgment of the state court upon the premises stated in his separate opinion in Roth v. United States . . . and his dissenting opinion in Memoirs v. Massachusetts . . . .’’ As the Court’s composition shifted and became more conservative, the use of per curiams and redrupping attracted new dissenters and declined in frequency.

Burger’s appointment meant that Harlan was no longer alone in his dissents to per curiams resting on Redrup’s authority. Both Burger and Harlan thought the Court’s majority in Cain failed to pay sufficient deference to the states. In Cain, they both issued separate dissents. Harlan modified his standard dissent, indicating he thought Ohio’s decision presented a ‘‘borderline question’’ but concluded he could not say the state exceeded the ‘‘constitutional speed limit’’ in banning public showings of the film. Burger complained the Court was inflexible and denied the states the opportunity to adopt their own standards or deal with the problem on their own terms.

In Walker, Burger cited his dissent in Cain but added he found no justification for the Court to assume the role of national, unreviewable board of censorship for the states, ‘‘subjectively judging each piece of material brought before it without regard to the findings or conclusions of other courts, state or federal.’’ Blackmun did not participate in Walker, but in Hoyt he dissented, arguing the Constitution did not ‘‘necessarily prescribe a national and uniform measure’’ dealing with obscenity, and he was joined by Harlan and Burger.

Burger, Blackmun, and Harlan constituted the core coalition to challenge the majority’s use of per curiams to overrule state courts that in their eyes conscientiously tried to apply the Supreme Court’s standards first laid out in Roth.

ROY B. FLEMMING

Cases and Statutes Cited

• Cain v. Kentucky, 397 U.S. 319 (1970) 
• Hoyt v. Minnesota, 399 U.S. 524 (1970) 
• Redrup v. New York, 386 U.S. 767 (1967) 
• Walker v. Ohio, 398 U.S. 434 (1970)