As the title indicates, this article calls attention to Justice Frank Murphy's jurisprudence which, it claims, helped develop an Equal Protection component of the Fifth Amendment's Due Process Clause as applied to actions of the federal government. This doctrine was eventually adopted by the Supreme Court in Boiling v. Sharpe, a companion case to Brown v. Topeka Board of Education. To present its argument, this article focuses on Justice Murphy's opinions in three infamous WW II cases involving war-time measures curtailing Japanese-Americans' civil rights and liberties, and a lesser-known labor case involving discrimination against African-American railroad workers. After examining the doctrinal history behind Justice Murphy's jurisprudence in this subject area, this article then briefly investigates why he was such a natural fit to take a leading role in the development of the Fifth Amendment Equal Protection doctrine by looking at his biographical experience. Through analysis of Justice Murphy's opinions, examination of the Frank Murphy Papers and those of several other Justices, and extensive correspondence with several former Supreme Court law clerks (including two of Justice Murphy's), this article asserts that Justice Murphy deserves some credit for laying the groundwork leading to the adoption of this important doctrine.
This article's primary purpose is to correct a historical oversight: Justice Murphy's contributions to this important doctrine have not properly been recognized by either case law or academic scholarship. Although passing references to his opinions have been made in several discussions of the doctrine, nothing definitive has been written on his critical role in this area.
Additionally, this article illuminates the background behind the adoption of the Fifth Amendment Equal Protection doctrine itself, as it played out among the Justices on the Supreme Court. This subject has not been deeply examined by legal scholarship. Thus, this article not only acknowledges Justice Murphy's role in the doctrine's development, it also contributes a new perspective on Supreme Court history and the Fifth Amendment Equal Protection doctrine.
Matthew J. Perry,
Justice Murphy and the Fifth Amendment Equal Protection Doctrine: A Contribution Unrecognized,
27 Hastings Bus L.J. 243
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol27/iss2/2