BLACK AND DOUGLAS AFFIRMING

...Black and Douglas alone on the Court are standing fast to the American heritage...

...And it is significant that, on the same day as these front-paged decisions, the Court—over Black's and Douglas' protests — inconspicuously refused to review a case in which the New York Court of Appeals had authorized by a 4-3 vote the banning of Negroes from a semi-public housing project...

...The Attorney-General can easily remedy the small flaw that bothered Burton...

...On petition for certiorari" is by far the commonest way for a case to reach the Court, and such a petition is never granted unless at least four Justices vote Yes...

...Murphy and Rutledge had been even more ardent defenders of civil liberties than Black and Douglas—and the four, teaming together, had often been able to talk one more Justice to their side to make a bare majority in a freedom-of-speech case, a search-and-seizure case, a fair-trial case...

...No account of the anti-civil-liberties record of Vinson's Court would be complete without at least mention of the cases the Court did not hear...

...That decision, of course, was the one upholding the conviction of the eleven Communists whom Judge Medina had prosecuted (sic) in New York...

...That is what the Communists were jailed for: not treason, not spying, not sabotage, not any act of any sort, but for talking (and writing), for "teaching and advocating" Communism...

...It was plain from their past records, even before they took their seats, that Justices Clark and Minton did not share their predecessors' crusading zeal for the rights of individuals and that a swing away from civil liberties was about to begin...

...To anyone for whom the Bill of Rights means something more than pretty words preserved on parchment, the decision marked a frightening and frightened retreat, on the part of the supposed ultimate guardians of the people's liberties, away from democracy and toward the very type of police state that Communist Russia represents...

...For in the face of a Chief Justice and a Court majority who have succumbed, however sedately, to the hysteria of the times — following Senator McCarthy's rather than Mr...

...It is worth noting that Jackson and Frankfurter, despite their face-saving cracks at the Smith Act, both took even stronger positions than the Vinson quartet in giving Congress the go-ahead to undermine freedom of speech if it so chooses...

...They recorded their dissent, not against the decisions since technically there were here no Supreme Court decisions, but against the denial of certiorari itself...

...Justice Black, dissenting like Douglas, took the most extreme and courageous, if presently hopeless, stand for true freedom of speech in the history of the Court...

...It is in the segregation cases alone that Chief Justice Vinson, elsewhere an implacable foe of claimed civil rights, has consistently voted on the side of the angels...

...And Black and Douglas will have no part in cutting the people's liberties out from under them, nor will they sit silent and watch it being done...

...He concluded with an almost despairing hope that "in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society...

...But suffice it to say that in the seventeen civil rights cases the Court heard where there was enough of a question to produce even one dissenting vote, the claimed right won out in only five, most of them on minor issues...

...Here is where Justices Murphy and Rutledge are perhaps most sorely missed, for it was they who used to join with Black and Douglas in forcing many a civil liberties case to a hearing before their often grudging colleagues...

...His articles on public affairs have appeared in Harper's, Life, Look, The American Mercury, The Reader's Digest, and many others...

...They are chipping away at the real foundation of U. S. democracy just as surely as, in the Dennis decision, they blasted away at it...

...But it started slowly and someFRED RODELL, professor of law at Yale University, has written widely of the Supreme Court and its work for many legal journals and general magazines...

...The sad fate of the Bill of Rights at the 1950-51 term had been foretokened during the 1949-50 term...

...Last term, for instance, there was the Sacher case, brilliantly described by Prof...

...But the oath required of all Los Angeles employes was so broad and vague and backward-looking in its scope that Frankfurter and Burton joined Black and Douglas in outraged opposition...

...And in almost all these cases, as well as several fair-trial cases, Justices Black and Douglas—or occasionally one of them alone-—took pains to protest in a manner that was almost unheard of a few years back...

...Constitution to be embalmed in helium for all time...

...Justice Clark took no part in the case...

...This second decision was actually a victory for civil rights, albeit a skimpy and tenuous victory...

...Last term, just as the term before, there were perhaps a score of important Bill of Rights cases that the Court, by "denying certiorari," simply refused to take on at all...

...And the last term of Court was a sorry term for civil rights and liberties...

...There was the case where then-Senator Glen Taylor was fined for going into an Alabama church through the Negro entrance...

...Those held by fear or panic, along with the Chief Justice, were Justices Reed, Burton, and Minton, who joined in his opinion...

...With Clark not sitting as in the Dennis case, because of his recent Attorney-Generalship, the Court split evenly, 4 to 4, and thus automatically affirmed the lower court's 2-to-l decision in the government's favor...

...While Vinson was helping preserve the ink-and-parchment Constitution from the further ravages of time, two other Justices were planning to renew their fight to save the living Constitution—the Constitution in action—from the further ravages of Vinson and his like-minded colleagues...

...For it is doubtful whether any Supreme Court in our history has so relentlessly slashed away at the liberties apparently granted the people by their Constitution as has Vinson's Court of late, under his own unre-luctant leadership...

...Ill On another front, the federal loyalty program and loyalty oaths in general got a lift and a life from the Court last term...

...For the four Justices who plainly disapproved the entire tenor and manner of the loyalty program were here joined, on a rather small technical issue, by Justice Burton, who saw the procedure of putting and keeping organizations on the "subversive" list as a little too arbitrary and high-handed...

...By so narrow a whisker—but just as authoritatively as if the Court had spoken unanimously — the loyalty program with all its ugly star-chamber indecency got presumably final judicial benediction...

...It is also true that Chief Justice Vinson purported, by a sort of legal legerdemain, to follow the "clear and present danger" rule in his Dennis opinion...

...But the picture of the United States in 1951 preserving its liberties by packing them away, airtight and untouchable, for safe-keeping strikes much too close to symbolic truth...

...Not content merely to give the green light to the federal government's internal witch-hunt, Vinson's Court reached down last term to approve loyalty oaths on the state and local level...

...Dooley's brand of election returns—Justices Black and Douglas are taking on as hopeless a task for the term of Court just beginning as they took on for the last term...

...But by the 1950-51 term there was no mistaking the trend that had started so gradually and, to many, almost imperceptibly the term before...

...It is the custom of the Court in such a "divided Court" affirmance not to write any opinion nor even to announce how the Justices voted...

...Moreover, as Prof...

...Life's caption for this little ceremony was "Preserving our Liberties," and perhaps that is what Chief Justice Vinson thought he was doing too...

...When one member of the crowd threatened violence if Feiner went on speaking, the police arrested, not the threatener, but Feiner, and carted him off to be fined for breach of the peace...

...Feiner, campaigning for Henry Wallace on a Syracuse, N.Y., street corner, had drawn a largely hostile crowd...

...An apter phrase would be "Black and Douglas affirming...

...The summary brushing off of Bill of Rights petitions these past two terms has been most marked in the field of fair criminal trials, where as many as a dozen cases a year used to get a hearing and today there are practically none...

...And yet, in the deepest sense, it is not Black and Douglas who are dissenting...

...Even this victory for civil rights, although it publicly overshadowed several defeats, was a limited one...

...Maryland's oath, demanded of all political candidates, was so narrowly and guardedly phrased that not even Black or Douglas bothered to protest what thus became a unanimous decision...

...it is Vinson and his .crew who are dissenting—from what Life called "Preserving our Liberties...

...For Black and Douglas are well aware what their brethren are doing in turning down case after case that deserves to be heard...

...In the major test, the Bailey case, the Washington law firm of Arnold, Fortas and Porter had courageously challenged head-on (in the name of the fired Miss Bailey) the constitutionality of the entire federal program as applied to government employes...

...More technically, it upheld the constitutionality of the Smith Act under which the eleven were convicted...

...For the essence of the Dennis decision is not that eleven "miserable merchants of unwanted ideas," as Justice Douglas called them in dissent, were shipped off to jail—nor even that literally thousands more, by official estimate, may soon follow them in the biggest political manhunt in U.S...

...Vinson's Court gave its blessing, 6-to-3, to this shocking reversal of the proper role of the police—with Minton, somewhat surprisingly, joining Black and Douglas in dissent...

...10 The PROGRESSIVE But in another case, dealing with the Attorney-General's listing of "subversive" organizations, the no less than six separate opinions produced by the eight participating Justices made clear that, in the Bailey case, it was Jackson and Frankfurter who had joined with Black and Douglas in revulsion at the whole loyalty program...

...The extent to which Vinson has swung his Court against civil liberties is high-lighted by recollection of the very similar Terminiello case, two years before, where a bench that included Murphy and Rutledge refused to countenance the conviction of an offensive speaker whose remarks were far more provocative than Feiner's...

...the Court balked at outlawing all segregation as such...

...To suppose that the American Communists, by their words, pose an imminent threat (such as Holmes would require) or even any threat (which is the way Vinson twists Holmes) of the overthrowing of the U. S. government by force and violence is sheer idiocy...

...There is little sympathy in any quarter for these crackpots and outcasts whose screams for the protection of their personal civil rights are mocked by the political views they hold...

...only segregation that meant less favorable treatment of Negroes than of whites was forbidden...

...It came in a steady crescendo, climaxed by the Dennis decision on the last day of Court...

...If the Dennis decision was the worst, it was far from the only instance where Vinson's Court last term gave way to "present pressures, passions, and fears...

...The essence of the Dennis decision is that, despite the most famous Constitutional guarantee ("Congress shall make no law . . . abridging the freedom of speech . . .") the Supreme Court has now said to Congress— You may make and enforce a law which sends people to jail for the mere expression of political ideas...

...There was a case up from Georgia authorizing local movie censorship on the ground that motion pictures are in no way entitled to freedom of the press...

...Hence, "Black and Douglas dissenting"—whether from Dennis decisions or denials of certiorari—will continue to dot with protest the record of Vinson's Court...

...if the speech is likely to lead immediately to some dangerous act, then it can be forbidden...

...There were others...

...And the picture of the present Chief Justice taking part in any liberty-preserving ritual is a paradoxical picture indeed...

...But as Justice Douglas makes devastatingly clear in a dissent which will rank with the great dissents of the past, the Vinson application of the Holmes rule is a travesty of that rule—and makes a travesty of the free-speech guarantee as well...

...John Frank points out in his annual review of the Court's work in the Chicago Law Review, Justice Douglas voted for the claimed civil right in 15 of the 17 cases, Justice Black in 14, Chief Justice Vinson in three...

...Justice Jackson, concurring separately, thought the Smith Act was silly but also thought that no "clear and present danger" rule should limit Congress' power to deal with the conspiracy of Communism, free speech or no free speech...

...Yet "Black and Douglas dissenting" is likely to become more familiar and even more meaningful than was the phrase "Holmes and Brandeis dissenting," a quarter of a century ago...

...then this facet of the loyalty program, like the bulk of the program in the Bailey case, will patently get approval "by an equally divided Court" after some lower federal Court—as all of them do in these loyalty cases—has upheld the government...

...Among his books are "Woe Unto You, Lawyers," and "Fifty-Five Menj The Story of the Constitution...

...Freedom of speech in the old soap-box sense took a body blow in the Feiner case, which blue-prints a handy— and now legal—way for police to break up a meeting anywhere...

...Says Douglas: "Only those held by fear or panic could think otherwise...

...history...

...Charles Alan Wright in the September Progressive, where the lawyers in the Dennis case were jailed for contempt of court by Judge Medina...

...Nor is it only in the fair-trial field that the Court has been ducking its duty—and stifling civil liberties—by denying certiorari...

...Despite the overruling of a couple of recent and liberal Murphy decisions, despite the upholding of the anti-Communist section of the Taft-Hartley Act in a decision approving guiltrby-association and narrowing freedom-of-speech, despite the barely noticed refusal of the Court even to hear a score or so of important civil liberties cases, the big news of the year in the field was the Court's unanimous crackdown on segregation of Negroes in Southern state universities and Southern railroad dining-cars...

...There was a case involving the censorship of political speeches made over the radio under the Federal Communications Act...

...what subtly at the 1949-50 term...

...II It is true that Justice Holmes' old "clear and present danger" test had long been accepted as a small limitation on absolute free speech...

...Justice Frankfurter, also concurring, produced a voluminous scholarly tract in which he deplored Congress' cavalier treatment of freedom of speech and also deplored his own, obviously self-imposed inability to do anything about it...

...It was in the summer of 1949 that Justices Murphy and Rutledge died and were replaced by Justices Clark and Minton...

...The photograph was of Fred Vinson, Chief Justice of the United States, helping prepare one of the yellowing and crackle-edged sheets of the original parchment copy of the U.S...

...There were other decisions where other civil liberties took a beating from Vinson and his colleagues (with Black and Douglas almost always dissenting), as where the privilege against self-incrimination—publicized by the Kefauver crime hearings but even more pertinent politically today in questionings about Communist affiliations—was sliced so thin that one slight slip in answering one question can now "waive," or obliterate, the privilege...

...He would apparently take the words of the First Amendment at their face, do away with even the Holmesian "clear and present danger" limitation, and make free speech on "public matters" absolutely immune...