Trop v. Dulles: How Earl Warren's Contradicting Legal Opinions Secured Trop's Victory

Abstract

On March 31, 1958, the Supreme Court held in Trop v. Dulles that the Eighth Amendment’s prohibition on “cruel and unusual punishment” barred Congress from denaturalizing citizens as a punishment.1 It was an important result, albeit one announced by a highly regarded chief justice, Earl Warren, who in this instance could marshal the support of only three other members of the Court. The result was important, and the principles for which Trop stands are worthy of our respect. But there is so much more to the story, of a chief justice’s struggle to reach the result he wished and what that process tells us about the Court and the manner in which it functions. Albert Trop, the plaintiff in the case, was denaturalized a result of his courtmartial conviction for desertion in the time of war.2 The Court, in an opinion by Chief Justice Earl Warren, held that his punishment violated the Eighth Amendment and restored Trop’s lost citizenship.3 Today, Trop is known for its contribution to the Eighth-Amendment jurisprudence, with a particular focus on the plurality’s statement that the “amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”4 However, at the time Trop and its companion cases, Perez v. Brownell5 and Nishikawa v. Dulles,6 were argued, Trop was considered among the most important and controversial cases of the term,7 not due to the EighthAmendment question, but because the case represented fundamental questions of constitutional law, including “What’s the nature of Congress’ power? What’s the structure of the Constitution?”8 Despite the unexpected nature of the issue, Warren’s determination to decide the case in Trop’s favor and his willingness to change his theoretical views regarding congressional power led the case to be decided