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JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL and JUSTICE STEVENS joined, and in which JUSTICE BLACKMUN joined except for Part II-A-(1).
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.
CHIEF JUSTICE BURGER, with whom JUSTICE POWELL, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
JUSTICE POWELL, dissenting.
JUSTICE REHNQUIST, with whom THE
CHIEF JUSTICE and JUSTICE POWELL join, dissenting.
JUSTICE WHITE, concurring in the judgment.
The District Court found that the books were removed from the
school library because the school board believed them "to
be, in essence, vulgar." 474 F.Supp. 387, 397 (EDNY 1979).
Both Court of Appeals judges in the majority concluded, however,
that there was a material issue of fact that precluded summary
judgment sought by petitioners. The unresolved factual issue,
as I understand it, is the reason or reasons underlying the school
board's removal of the books. I am not inclined to disagree with
the Court of Appeals on such a fact-bound issue and hence concur
in the judgment of affirmance. Presumably this will result in
a trial and the making of a full record and findings on the critical
issues.
The plurality seems compelled to go further and issue a dissertation
on the extent to which the First Amendment limits the discretion
of the school board to remove books from the school library. I
see no necessity for doing so at this point. When findings of
fact and conclusions of law are made by the District Court, that
may end the case. If, for example, the District Court concludes
after a trial that the books were removed for their vulgarity,
there may be no appeal. In any event, if there is an appeal, if
there is dissatisfaction with the subsequent Court of Appeals'
judgment, and if certiorari is sought and granted, there will
be time enough to address the First Amendment issues that may
then be presented.
I thus prefer the course taken by the Court in Kennedy v. Silas
Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation
under the Fair Labor Standards Act. Summary judgment had been
granted by the District Court and affirmed by the Court of Appeals.
This Court reversed, holding that summary judgment was improvidently
granted, and remanded for trial so that a proper record could
be made. The Court expressly abjured issuing its advice on the
legal issues involved. Writing for the Court, Justice Jackson
stated:
"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.
"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions." Id., at 257.
We took a similar course in a unanimous per curiam opinion in
Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned
a summary judgment since it was necessary to resolve a factual
dispute about collaboration between one of the respondents and
a state legislative committee. We remanded, saying: "In the
absence of the factual refinement which can occur only as a result
of trial, we need not and, indeed, could not express judgment
as to the legal consequences of such collaboration, if it occurred."
Id., at 84.
The Silas Mason case turned on issues of statutory construction.
It is even more important that we take a similar course in cases
like Dombrowski, which involved Speech or Debate Clause immunity,
and in this one, which poses difficult First Amendment issues
in a largely uncharted field. We should not decide constitutional
questions until it is necessary to do so, or at least until there
is better reason to address them than are evident here. I therefore
concur in the judgment of affirmance.
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