The Supreme Court Decisions

...First, it has been said that the Court encroached on the rights of Congress, the Executive, and the States in a manner which went beyond the Court's proper role, with the Watkins case as perhaps the prime example...

...As every reader knows by now, the cause of this latest controversy over the operations of our system of judicial review was a series of assertive Supreme Court rulings issued during the months of May and June...

...The Court also ruled that, in failing to instruct the jury as to the difference between advocating the overthrow of the Government as abstract doctrine and advocating this concept as action to be taken, the trial judge had ignored a vital distinction between tolerated words and punishable incitement...

...It is the liberals, fresh from last generation's fight against the "'nine old men," who are voicing the language of "second sober thought" and "constitutional limitation...

...together, the two buildings overlook the site of the United States Congress, as though in architectural rendition of Brac-ton's famous comment that government should be "under God and the Law...

...Instead, ignoring without comment the fact that the State Supreme Court found the questions put to Sweezy to be those the legislators wanted put, the Chief Justice declared that he could not find a clear intent on the part of the Legislature to compel questions which would infringe First Amendment rights...

...In the Watkins ruling, so many dicta embroidered Chief Justice Warren's opinion that Justice Frankfurter, concurring, felt compelled to write: "I deem it important to state what I understand to be the Court's holding Only by re-stating a precise ground could Frankfurter feel able to vote with the majority...

...now, they were part of a very large crowd...

...This seems to me to deserve a short evaluation: Nonsense...

...Apart from their Tightness or wrongness and the quality of their reasoning, what the 1957 civil liberty cases indicate is the emergence of a new alignment of forces within the Supreme Court...

...If the force of Black's argument and Warren's personality can bind the new Justice to the "foursome," there will be a standing majority of liberal activists...

...But when it provides for court trial of the contempt, as it did, and enacted a standard of pertinency, as it did, Congress cannot define the due process of law in terms of administrative convenience, as has been done in loyalty hearings and organization testing by the Attorney General...

...In one sense, the Court's rulings were a welcome event for the radical Right, since it gave this group its first opportunity in three profitless years to lash out at a solid target...

...Finally, a third criticism of the Court is that it has been relying on sociology and policy rather than law and precedent...

...His tendency to write as though he were still issuing veto messages as Governor of California rather than composing judicial opinions was noticed by most students of constitutional law as early as the segregation cases of 1954, when citation of social-science evidence was mishandled in the opinion...

...The first thing to notice about this reaction is that a good bit of the furor stems from newspaper reports which misread the decisions and commentators who compounded the misconceptions...

...The Court did not hold that suspected Federal employes are immune from dismissal on loyalty or security grounds by the heads of their agencies...

...To make up a Court, this foursome was able to win to its side Frankfurter and Harold Burton in the Jencks case, Frankfurter and Harlan in Watkins and in Sweezy, Frankfurter, Harlan and Burton with the three in the Yates case, Burton and Charles Whittaker in Konigsberg, and all four of these concurring justices in the Service decision...

...The Court dismissed the cases against five defendants because the Government's evidence could not make out a case of advocacy...

...A second charge is that the 1957 rulings were careless and fuzzy products, opinions which failed to provide the precision of reasoning and adequate rules of conduct which should come from the nation's high court...

...When one adds to this list of cases which excited public controversy the other important rulings of the 1957 term —opinions dealing with speedy arraignment before a magistrate, injunctions against peaceful labor picketing, arbitration under Section 301 of the Taft-Hartley Act, the status of professional football under Federal anti-trust laws, state legislative control of obscenity, military trials abroad for civilian dependents of servicemen, the diversity of citizenship needed to bring stockholders' suits in the U.S...

...In all except Service, where he did not participate, Justice Tom Clark was in dissent...

...If Service were a suspected Foreign Service officer today, he could be found to be a security risk by Secretary Dulles and dismissed, without violating any doctrine of the Supreme Court as to the Eisenhower program...

...In the non-unanimous cases discussed in this article (with the exception of the Yates case, in which Justice Brennan did not sit), the majority contained a four-man phalanx made up of Warren, Hugo Black, William 0. Douglas and Brennan...

...Of course, the entire nation was not disgruntled and there were some voices of support for the Justices — speeches by members of the House Judiciary Committee such as Emanuel Celler and Kenneth Keating, happy articles in the liberal weeklies, and a bit of puzzled but soldierly defense from the President...

...Or because defendant makes a charge of inconsistency, although he need not lay a foundation of proof to support this...

...v. Watkins...

...In fact, the Deep Southerners found that they were no longer thundering alone against the "usurpations" of the Supreme Court...

...In the Sweezy ruling, for example, Chief Justice Earl Warren embarked on a discourse about academic freedom and political expression (in the course of which he plainly misstated what the New Hampshire Supreme Court said on this point), but he pulled up short of placing his decision on such a tangible First Amendment ground...

...Congress might imprison Watkins under its power a< a legislature lo punish contempt...

...Those who sincerely believe in pure majority rule and distrust an appointive judiciary have a right to protest against the Court's most recent assertion of its right to a positive role in the shaping of constitutional policy...

...In the Service case, as in the previous Peters ruling, the Court based its reversal of dismissal on the failure of executive officials to comply with their own rules, not on any constitutional ground...

...This criticism seems to me quite valid with respect to several of the cases and has been the subject of much head-shaking in law school faculties...

...In the prosecution of a Mine, Mill and Smelter Union official for falsifying a Taft-Hartley non-Communist oath, held (7-1) that the defendant was entitled to see prior statements made about his alleged Communist connections to the FBI by testifying witnesses Harvey Matusow and J. W. Ford (U.S...

...Of such ideological reverses is the realpolitik of American democracy made...

...Interestingly enough, not all of the cases were situations where the Frankfurter-Harlan group took a narrow ground of decision and the Black-Warren faction adopted a large substantive interpretation...

...Three years later, the Chief Justice's faulty execution of essentially sound and politically delicate rulings is still evident and serves to mar Warren's impressive achievements as a unifier of the Court and a symbol of constitutional dignity beyond the capacity of the past chief to represent...

...Or, in the Service case, which group is closer to the legal tradition—the Justices, laying the action of Government administrators alongside their own regulations to see whether these have been followed, or critics who desire a different result in this case, which could only rest on a theory that the dictates of cold warfare or some principle of "higher justice" required the Court to ratify an unauthorized act...

...v. Yates et al...

...Other misconceptions of the 1957 rulings might be noted, but these should be sufficient to indicate that the Justices have been damned as much for what they did not do as for what they did...

...What the Court said was that reports given to the Government had to be made available to the defense (1) in criminal trials, (2) when the reporting person was now testifying in open court for the Government, and (3) when the report, described specifically by the defense, related to the events which formed the basis of the prosection...

...More significantly, anyone comparing the 1957 civil-liberty cases with the deferential ratification of Government anti-subversive action which was the majority rule in the late 1940s, or the cautious reassertion of citizen rights through insistence on procedural niceties which was the majority's technique in the early 1950s, can see that the present Court has chosen to strike a new balance...

...and in the second case, held (9-0) that it was a denial of due process to bar a qualified applicant because of his pre-1941 membership in the Communist party, his use of aliases to escape anti-Semitic employer policies, and previous arrests on political charges (Sell,ware v. New Mexico...

...He spent the last year as a visiting faculty member at Yale Law School...

...For single-mindedness of purpose to the exclusion of reality, the Siceezy opinion luis a certain superlative ring about it...

...If Bracton had been here to observe this latest skirmish, he might note sadly that these great clashes between judge and sovereign are now waged only on this side of the Atlantic...

...The recent scissoring of an FBI report in the trial of John Kasper in Tennessee illustrates the practical nature of the Jencks rule...

...In the New Hampshire contempt conviction of Alan F. Westin, member of the District of Columbia bar, is assistant professor of Cornell al Cornell University...

...By Alan F. Westin The Supreme Court Decisions The new balance on civil liberties The United States Supreme Court building in Washington stands alongside a gray structure housing the national headquarters of the Methodist Church...

...This range and number of cases—something not entirely within the Justices' control—helps in part to explain the high volume of criticism leveled at the Court...

...Marxist Paul Sweezy, held (6-2) that questions put to Sweezy about guest lectures he delivered at the University of New Hampshire and about his knowledge of Progressive party leaders were invasions of academic freedom and political expression which the Court would not assume the Legislature had intended its Attorney General to ask under the State Subversive Activities Investigation Act (Sweezy v. New Hampshire...

...What this argument overlooks is that the Watkins case was not simply a question of Congressional prerogative but also involved the integrity of the judicial process...

...With differing emphases, this seems to me to be applicable in the Jencks and Yates cases, and in the Mallory decision dealing with speedy arraignment...

...In the Sweezy case, it was Justices Frankfurter and Harlan who relied on the First Amendment and the "foursome" which chose a technical construction of the intention of the state legislature to avoid a constitutional issue...

...9 In the conviction of 14 West Coast Communist leaders under the Smith Act, held (6-1) that the "conspiracy to organize" section of the Smith Act could apply only to the act of organizing the party in 1945 and not to organizational maintenance since that date, thereby foreclosing indictments on the "organize" count after 1948, when the three-year statute of limitations had run...

...That Justices Black and Douglas, always the first to insist upon a First Amendment analysis, should have held aloof from the Frankfurter concurrence seems particularly ironic...

...we will present another view of the Court decisions by Earl Latham, chairman of the political science department at Amherst College...

...In the contempt prosecution of a UAW official for refusing to give the House Committee on Un-American Activities the names of persons he once knew as Communists but now believed to have left the Party, held (6-1) that a witness cannot be punished for contempt when the questions put to him were wide-ranging inquiries not pertinent to a properly defined legislative investigation (U.S...

...What deserves notice in the 1957 situation is that the critics who have been charging usurpation and invoking the traditional rhetoric of the Jeffersonians and Progressives are actually the conservative and right-of-center groups, who have traditionally defended the philosophy of judicial review...

...The explanation may be that Black and Douglas have had such amazing success in winning first the Chief Justice and then Justice Brennan to the position they had been maintaining in isolation since 1948 that they felt it would be politic to support the Chief Justice's "narrow" stand in the Sweezy case...

...This was considered subject to divestiture despite forty years of inaction toward the transaction by the Federal Trade Commission and the Justice Department (U.S...

...Justice William J. Brennan's opinion never explains the theory on which defendants art-allowed to see prior reports made to the Government: Is this because these are public property...

...If Bracton could have attended the Court's recent decision Mondays, strolled across Capitol Plaza to hear the Congressional reactions, and leafed through the flood of articles which have debated the Court's spring fashion, the good Briton would probably have noted that living under "the Law" was as ennobling and embroiling an adventure today as in 13th century England...

...Because they might impeach a witness...

...Such is the charge and counter-charge, the rhetoric, logic and internal politics of which constitutional battle is composed in the United States...

...Justice John Marshall Harlan's discussion of the advocacy issue was directed at the necessity to apply the same charge today as given in the Dennis case convictions of the Communist national leaders: one which emphasized that advocacy directed "to stirring people to action" was the offense covered by the Smith Act...

...What this suggests is that the kind of internal security case which came before the Court this term—essentially a situation where the outer limits of anti-subversive action were involved—produced an agreement upon result between the "liberal activist" forces of Black and Warren and the "constitutional equilibrium" position of Frank-further and Harlan, with the philosophy of the latter retained in several concurrences which stated alternative grounds of decision...

...What the Justices decided was: • In the case of two applicants for admission to the practice of law, held (6-3) that Bar examiners may not draw an inference of bad moral character from an applicant's refusal, on First Amendment grounds, to answer questions about his political affiliations (Konigsberg v. California...

...Of course, the underlying question of whether the Court went beyond its proper role is a larger issue which will depend on one's conception of the proper place for the judiciary in the American system of government...

...The Court did not declare in the Yates case that we should instruct juries that the Communist party is operating as a debating society or following parliamentary means...

...In most years, some group is likely to be offended by a particular ruling...

...In forthcoming issue...

...Yet the dominant reaction was critical, whether in the form of soft clucking from the Time-Life sages, bitter outcries from David Lawrence, or impeachment bills from angry Congressmen...

...his biography of the first Justice John Marshall Harlan will be published next spring...

...Those who voice this protest either mistake the scholarly apparatus of citations to non-legal materials for the legal syllogism which decided the case, or else deny the Court's right to weigh conflicting "policy" interests left vague under the Constitution, thereby challenging the essential feature of our judicial tradition since the days of that arch-weigher of interests, John Marshall...

...To take two illustrations: Who would be playing sociologist and who lawyer in the Jencks case— the Justices, applying Anglo-Saxon rules of trial practice so as to provide a witness with essential documents with which to impeach accusing witnesses, or the Jencks critics, whose contention rests on the bold hypothetical that unless due process is denied the FBI may not he able to round up as many informants, which might have a bad effect on the course of criminal prosecutions...

...Nor was it clearly explained whether, once the reports were shown to the defendant, it was up to him or to the judge to determine how much of the report could go into evidence and be considered by the jury...

...In an anti-trust prosecution of DuPont for violating the Clarion Act, held (4-2 thaT DuPont's purchase of a 23 per cent stock interest in General Motors in l917-1919 and a supplier contract between the two companies was a "vertical" stock acquisition forbidden by Section 7 as tending to create a monopoly...

...To the extent that the evidence showed a conspiracy to advocate action, Justice Harlan made it clear that re-convictions of nine of the defendants would be left untouched...

...In reviewing John Stewart Service's discharge from the State Department in 1951...

...The special feature of some of the 1957 cases may be that the kind of opinion written in the Sweezy and Watkins cases may become something of a signature of the present Chief Justice...

...The announcement by Representative Francis Walter that the House Un-American Activities Committee is changing its name to the House Internal Security Committee, presumably with a change in the Committee's mandate from concern with propaganda to a focus on security, shows that the Court's rulings have already had concrete effect...

...v. E. I. DuPont de Nemours & Co...

...To the extent that prosecution of second-string leaders and members might be supported only by reading into evidence Marxist revolutionary classics and instructions by Soviet teachers in 1924, plus proof of American party adherence to such doctrine, convictions would not be proper...

...This is not to suggest that what the Court has done is to issue a series of mild sermonettes or that the debate has really been about straw men...

...in 1957, a remarkably large number of vocal and powerful groups had their pet oxen gored by the Court's holdings: the business community, the FBI and the Justice Department, the State Attorneys General, the American Bar Association, most Congressmen, the patriotic societies, and many anti-Communists...

...v. Jencks...

...To the extent that critical reactions really represent a dissent from the post-McCarthy approach to internal security, I can only disagree with the protests by saying "Amen" to the Court's decisions and expressing my conviction that nothing essential to the ideological battle with Communism or effective anti-subversive efforts has been taken away by these cases...

...To be sure, few rulings of the Supreme Court, or any agency of government, emerge with machine-tooled perfection or provide flawless blueprints of future situations which may arise under a new rule...

...As Justice Felix Frankfurter's concurring opinion put this idea: "By [passing the Act of 1857] . . making the Federal judiciary the affirmative agency for enforcing the authority that underlies the Congressional power to punish for contempt, Congress necessarily brings into play the specific provisions of the Constitution relating to the prosecution of olTenses and those implied restrictions under which coinN function.'' In other words...

...What must be satisfied in the courts is that form of fair procedure which has evolved since colonial days and is within the special competence of the judiciary to administer...

...U.S...

...In the Jencks case...

...courts, the validity of the all-white clause of the Girard Orphan's School Trust in Philadelphia, and the right of Japan to try Army Specialist William Girard— the past term emerges as one distinguished for the range and number of large problems dealt with and the frequency with which the Court asserted a positive role in their resolution...

...After all, there is still the new Justice, Whittaker, who did not participate in most of the cases, to be won...

...for the remaining nine, the Court ordered a new trial under the proper charge to the jury...

...For example, contrary to genera] impressions: • The Court did not say in the Jencks case that reports of FBI operatives and confidential informants or the entire dossier relating to an accused individual or group had to be disclosed...

...held (8-0) that Secretary Dean Acheson's overruling of findings in Service's favor by a Department Loyalty Board and the Deputv UnderSecretary for Loyalty Review violated State Department regulations then in force, since those gave Acheson review authority only when a Board finding favorable to an employe was overturned by the Deputy (Service r. Dulles...

...What this article deals with are the attacks which have taken the form of charges against the Court for specifically judicial misconduct, and it is that to which I will proceed...

...To be more precise, the Court has put into legal terms the new balance on the issue of internal security which emerged after the McCarthy censure and has heretofore been registered largely by intangible (though powerful) developments—a bad press for the radical anti-Communists, a distate for extremist prescriptions on the part of "center" public opinion, a bland unconcern by the Administration for new Communist-hunting weapons...

...Therefore, he must treat the Attorney General as acting without legislative authority and hold the contempt conviction invalid...