Ortwein v. Schwab, 410 U.S. 656 (1973)

Author: Justice Marshall

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Ortwein v. Schwab, 410 U.S. 656 (1973)


I adhere to my dissenting opinion in United States v. Kras, 409 U.S. 434, 458 (1973), and would reverse the judgment on that basis. But even were I to accept the majority position in Kras, there are still important differences between that case and this one which, in my judgment, require that this case be set for argument.

In Kras, the majority correctly noted that "[t]here is no constitutional right to obtain a discharge of one’s debts in bankruptcy." Id. at 446. Therefore, the only issue in the case was whether the Government could, on the basis of a de facto wealth classification, limit access to a remedy which it could concededly deny altogether.

The question here is quite different. Appellants seek a judicial remedy for the action of an administrative agency which deprived them of a preexisting right. As my Brother DOUGLAS demonstrates, it is, at very least, doubtful that the Due Process Clause permits a State to shield an administrative agency from all judicial review when that agency acts to revoke a benefit previously granted.* I share the view of Mr. Justice Brandeis that

[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in which facts were adjudicated was conducted regularly.

St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (concurring opinion). Cf. Yakus v. United States, 321 U.S. 414 (1944); Crowell v. Benson, 285 U.S. 22 (1932).

That opportunity was denied in this case, and important benefits were thereby taken from appellants without affording them a chance to contest the legality of the taking in a court of law. Cf. Fuentes v. Shevin, 407 U.S. 67 (1972).

The extent to which the State may commit to administrative agencies the unreviewable authority to restrict preexisting rights is one of the great questions of constitutional law about which courts and commentators have debated for generations. See generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953); 4 K. Davis, Administrative Law Treatise § 28.18 (1958). Because I am not ready to decide that question summarily, sub silentio, and without the benefit of full briefing and oral argument, I must dissent from the Court’s decision.


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Chicago: Marshall, "Marshall, J., Dissenting," Ortwein v. Schwab, 410 U.S. 656 (1973) in 410 U.S. 656 410 U.S. 666. Original Sources, accessed June 4, 2023, http://www.originalsources.com/Document.aspx?DocID=LAAEG5NCQRJ3D7I.

MLA: Marshall. "Marshall, J., Dissenting." Ortwein v. Schwab, 410 U.S. 656 (1973), in 410 U.S. 656, page 410 U.S. 666. Original Sources. 4 Jun. 2023. http://www.originalsources.com/Document.aspx?DocID=LAAEG5NCQRJ3D7I.

Harvard: Marshall, 'Marshall, J., Dissenting' in Ortwein v. Schwab, 410 U.S. 656 (1973). cited in 1973, 410 U.S. 656, pp.410 U.S. 666. Original Sources, retrieved 4 June 2023, from http://www.originalsources.com/Document.aspx?DocID=LAAEG5NCQRJ3D7I.