Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

47  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  v. Ohio , 203 which sustained police stop-and-frisk tactics even in the absence of probable cause, as a judicial (and judicious) concession to public opinion, which had been agitated by the Court’s decision in Miranda v. Arizona two years earlier. 204 The apparent shift in the Court’s attitude toward time release programs for religious observan- ce in public schools between 1948 and 1952 205 and toward legislative investigation of alleged communists between 1957 and 1959 206 li- kewise may reflect the Justices’ recognition of the wisdom of making occasional concessions to adverse public opinion. Finally, the Court’s standing and legitimacy are most at risk when it renders unpopular or controversial decisions in bunches, rather than individually. The Court came under severe attack in the late 1950s–from Congress, the American Bar Association, the Confe- rence of State Chief Justices, and legal academics–because it took on so many controversial causes simultaneously. 207 Still reeling from the white South’s assault upon Brown , the Justices tempted fate by taking on the professional anti-Communists with its famous Red Monday de- cisions of 1957, 208 the law enforcement lobby with some forerunners of the 1960s criminal procedure revolution, 209 and federalism affician- dos with the beginnings of the habeas revolution. 210 This was too many powerful constituencies to offend at once, and the Court was forced to backtrack in the late 1950s, rejecting the broadest implica- tions of its Red Monday decisions in 1959 211 and generally absenting 203 392 U.S. 1 (1978). 204 See, e.g., Tracy Maclin, Terry v. Ohio ’s Fourth Amendment Legacy: Black Men and Police Discretion, 72 St. John’s L. Rev. 1271, 1317-18 (1998). 205 Compare McCollum v. Board of Education, 333 U.S. 203 (1948) (invalidating time release program) with Zorach v. Clauson, 343 U.S. 306 (1952) (sustaining a slightly different time release program). See, e.g., C. Herman Pritchett, Civil Liberties and the Vinson Court 11-14 (1954) (attributing the shift to the Court’s “dispos[ition] to use any available method to quiet the storm caused by the McCollum decision”); Melvin I. Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941-1953, at 236 (1997). 206 Compare Sweezy v. New Hampshire, 354 U.S. 234 (1957) and Watkins v. United States, 354 U.S. 178 (1957) (placing constitutional limits on legislative investigations) with Uphaus v. Wyman, 360 U.S. 72 (1959) and Barenblatt v. United States, 360 U.S. 109 (1959) (narrowly construing those limits). Murphy identies a “tactical withdrawal.” Murphy, supra note __, at 246. 207 See generally Murphy, supra note __, at 266 (arguing that the Warren Court made the mistake of taking on “too many powerful enemies at one time”). 208 See Watkins v. United States, 354 U.S. 178 (1957); Sweezy v. New Hamphsire, 354 U.S. 234 (1954); Yates v. United States, 354 U.S. 298 (1957). These are discussed in Murphy, supra note __, at 100-06. 209 See, e.g., Mallory v. United States, 354 U.S. 449 (1957); Jencks v. United States, 353 U.S. 657 (1957). 210 See Brown v. Allen, 334 U.S. 443 (1953). 211 See Uphaus v. Wyman, 360 U.S. 72 (1959); Barenblatt v. United States, 360 U.S. 109 (1959). These are discussed in Murphy, supra note __, at 229-31.