Supreme Court Justices are paid to decide difficult cases. In 1951, however, Justice Felix Frankfurter heard a case he couldn’t decide.a His brethren voted to affirm the decision of the court below. But Justice Frankfurter couldn’t make up his mind. So he took the unusual—perhaps unique—step of filing an opinion neither affirming nor reversing, but dubitante, in doubt.
Editors are supposed to have opinions. That’s what they editorialize about. And BAR’s editor is certainly not shy about expressing his opinions—forcefully and unequivocally. But on the subject about which I write now, I must file dubitante. Perhaps some readers will come to my aid.
The subject is antiquities advertisements. Should BAR accept ads from dealers in authentic, original Near Eastern antiquities?
Several years ago, the appearance in BAR of a few small advertisements for antiquities produced a number of vociferous complaints. From the beginning, I found the merits of the case difficult to understand, so I decided that, for the time being, BAR would discontinue accepting such ads for publication until I could sort out the matter in my own mind and come to a final decision.