THE TRUTH ABOUT CONGRESS AND THE COURT
Rauh, Joseph L. Jr.
the TRUTH about Congress and the Court by JOSEPH L. RAUH, JR. The leaders of the attack upon the Supreme Court in the 85th Congress must feel like the owners of a baseball team that hit the...
...To reverse, by a legal monstrosity called H.R...
...Late Tuesday night, the liberal bloc did yield to Johnson's entreaties for a vote...
...But now the issue was joined on H.R...
...On Saturday Senator Joseph O'Mahoney, chairman of the Senate conferees on Mallory, agreed to write into the bill that "delay is to be considered as an element in determining the voluntary or involuntary nature of" confessions...
...What would have happened to the now-pending Nelson overruler if the Southerners had not sought bigger game is hard to tell...
...The supporters of the Court won the day, but their victory is no ground for complacency...
...Time now became the major asset of the defenders of the Court...
...Otherwise the next battle for the independence of the Court may not fare so well...
...To reverse the long-standing practice, recently reaffirmed by the Supreme Court, of federal judicial review of state criminal trials by habeas corpus...
...Senator Douglas rose and obtained the floor...
...Thursday morning, while the battle to recommit raged, the bill to overrule the Cole decision and extend the federal security program to non-sensitive jobs broke loose from the Conference Committee...
...3, not Nelson...
...They made it clear to Johnson that they understood the strategy of the anti-Court group to undermine confidence in the Court and that they intended to counter with a strong defense of the desegregation decisions...
...the Court's latest refusal to back down at Little Rock will doubtless fan the flames...
...The Adminnarks < istration favored each of its provisions...
...Above all the liberals were agreed upon the importance of a thorough defense of the Mallory principle that the government should not be permitted to use confessions obtained while federal agents were unlawfully delaying arraignment...
...Just as the deletion of Part III of the Civil Rights Act of 1957 (which would have permitted the Attorney General to enforce school desegregation) evidenced Congressional indifference to the desegregation decisions, so the Southern bloc sought in 1958 to undermine public confidence in the Court by overruling pro-civil liberties decisions...
...He is vice chairman of Americans for Democratic Action in charge of its civil liberties and civil rights programs...
...Had H.R...
...Douglas' purpose was two-fold: to force Johnson to abandon the other anti-Court measures and to make clear, in his own words, that "the real issue is the Supreme Court" and this amendment "puts that issue out in the open, right here on the floor of the Senate...
...The liberal bloc was fighting it desperately and the Southerners were demanding the right to vote on much broader bills...
...3, the Nelson decision (keeping states out of the "anti-subversive" field) and a host of other decisions preventing state action in labor and other areas preempted by federal law...
...The debate opened Tuesday, August 19, with only five days to go before Congress was now definitely scheduled to adjourn...
...but for the liberal bloc he would have engineered the passage of the three-bill package to overrule the Court...
...even the small band of Court defenders ended up somewhat astonished at their spectacular success in preventing the enactment of a single anti-Court bill...
...But feelers to Johnson's office that he agree to put aside the remainder of the three-bill package in return for an early vote on Mallory were of no avail...
...federal officers unnecessarily delay arraignment...
...The leaders of the attack upon the Supreme Court in the 85th Congress must feel like the owners of a baseball team that hit the opposing pitchers all over the lot but ended up scoreless after repeatedly leaving the bases loaded...
...their desks were piled high with books and draft speeches...
...For the attackers had things all their own way except in the last half of the ninth inning...
...Mud could be made to stick particularly if the Court could be made to appear "soft on communism" by Congressional overruling of decisions protecting the rights of Communists and alleged Communists...
...The attack on the Court in the last days of the 85th Congress came as no great surprise to anyone...
...But to refuse to bring them up meant reneging on the promise to the Southern bloc that they would have their crack at the Court before having to vote on foreign aid...
...the Conference proposal was in substance the House version overruling the Mallory principle...
...He deftly substituted the Nelson overruler as the pending business in lieu of the bill then on the floor and the Douglas amendment was no longer before the Senate...
...Labor and many other organizations which, up to now, had kept out of the fight, went to work for recommittal...
...and the Court fight was largely, though not completely, a thing of the past...
...Late Thursday night, the motion to recommit carried by a vote of 41 to 40...
...The liberals were in more or less agreement that the word "reasonable" improved the bill, but a number feared that even so the bill would confuse more than clarify and besides the word "reasonable" might get lost in conference...
...The end of the 85th Congress did not, however, end the battle...
...In the final analysis, the credit for the shut-out of the anti-Court team must go to the liberal bloc...
...He categorically rejected the idea "that we must embark on a one-way street...
...Senator Carroll quickly moved to recommit the entire bill, but before any action or even discussion could take place, Johnson hastily adjourned the Senate for the night...
...The week dragged on without action, but Russell finally won out...
...Yielding to this Southern demand and knowing he had the votes to table the Butler-Jenner measure, Johnson brought up a non-controversial bill concerning federal appellate procedure and immediately yielded to Senator Jenner to offer his bill as an amendment...
...At any rate, Senator John McClellan promptly offered H.R...
...This bill would have reinstated security screening for two million government employees engaged in non-security work with all the worst practices of the old loyalty and security programs...
...Hopes for Saturday adjournment faded...
...Clark's appeal was successful...
...Senators Clark and Frank Church had fought this provision in conference...
...early Friday, Clark appealed to Senator Johnson and to the chairman of the conferees, Senator Olin Johnston, not to bring this matter before the Senate in its final hours and threatened a lengthy floor fight...
...Then came the most dramatic moment of the entire debate...
...is only the other side of the Faubus coin...
...The Johnson three-bill package had great sales appeal...
...The narrowness of the margin will only incite the opponents of the Court to renew their attack...
...The let's-get-tough-with^the-Communists school would get the Nelson overruler and the states could go back to the ineffective game of looking for subversives...
...But Senators Carroll and Morse were equally determined to defend the Mallory principle...
...The original three-bill package was now a thing of the past...
...But this should not obscure his great service to the Court in obtaining the recommittal of the Nelson overruler with H.R...
...The Southerners had no thought that this ripper bill could be enacted into law...
...he had only yielded to the House conferees in return for other concessions...
...3 been tabled, it would have been extremely difficult for the liberals to defeat the Nelson overruler...
...While publicly demanding action on the Butler-Jenner measure, the Southern bloc quietly agreed with Senator Johnson that, instead, the Senate would consider a three-bill package —one to overrule the Nelson decision, a second to overrule, wholly or partially, the Mallory decision, and the third to prohibit federal review by habeas corpus of state criminal trials...
...To reverse the Mallory decision (preventing the use in evidence of confessions obtained while JOSEPH L. RAUH, JR., prominent Washington attorney, appeared as victorious counsel in many of the cases at stake in recent Congressional attempts to curb and reverse the U.S...
...Lyndon Johnson's undertaking to schedule this three-bill package before the Mutual Security Appropriation bill won him the double advantage of enlisting Southern support for foreign aid and of putting those who might talk at length against the anti-Court bills in the position of delaying foreign aid...
...To bring up the bills meant time and trouble...
...Senator Johnston actually did not favor the bill (his Civil Service Committee had strongly condemned the federal security program in 1955...
...Some he frightened with the possibility of the Douglas amendment being re-offered...
...Senator Johnson labored feverishly arranging pairs and getting agreements from pro-H.R...
...With adjournment so near at hand, the determined opposition of even a small band of liberal Senators might possibly prevent enactment of the three-bill package or any part of it...
...To the aid of the Southern bloc quickly came the professional "security corps"—with Chairman Francis Walter of the House Un-American Activities Committee and Senators William Jenner, John Marshall Butler, and Styles Bridges at the helm...
...In addition, both House and Senate had under consideration bills to reverse the recent passport decisions, and the Senate Judiciary Committee had reported out the revised Butler-Jenner Bill which would have reversed wholesale the recent pro-civil liberties decisions of the court protecting witnesses before Congressional investigating committees, reasserting the right even of Communists to freedom of speech, protecting admission to the professions from arbitrary state action, and barring the states from the anti-subversive field...
...As the week of August 11 opened, there was no secret about Majority Leader Johnson's plan to bring up the bill to overrule the Nelson case in a matter of hours and then follow with the rest of his three-bill package...
...Instead, their master plan called for undermining those decisions by Congressional action to overrule the Court on more vulnerable fronts and by Congressional indifference on the desegregation front itself...
...since H.R...
...White's equating of the policeman on the beat with the burglar under surveillance need hardly be taken seriously...
...Johnson himself did not favor the shut-out...
...This is all part of a 'reverse the Court' campaign," he went on, "which stems largely . . . from the earlier decision of the Supreme Court in the Brown case...
...In a shift of plans, Senator Johnson called up the Mallory bill and the big debate was on...
...it provided good cover to make piecemeal overrulings of the Court in other areas more palatable...
...After only a few hours' debate Wednesday, August 20, Senator Hennings' motion to table carried 49 to 41 in mid-afternoon...
...What seems undebatable is that the outcome of the struggle reinforced the independence of the Supreme Court and the vitality of our constitutional system...
...Congressional Southerners, being realistic men, early recognized that no constitutional amendment reversing the desegregation decisions had a ghost of a chance in Congress or the country...
...The Southerners could claim a triple Court overruling...
...3 attached to it and thus ending this major assault upon the Court...
...Whether the major credit for this shut-out should go to astute manager Lyndon Johnson or courageous pitchers Hubert Humphrey and Paul H. Douglas or brilliant legal fielders Thomas C. Hennings, Jr., John A. Carroll, Wayne Morse, Joseph Clark, Jacob Javits, and John Sherman Cooper, is still the subject of considerable debate around Washington...
...that we should overrule the Court, but never support the Court...
...But the Mallory case had held that unnecessary delay would invalidate confessions regardless of whether they were voluntary or involuntary...
...Senator Russell, in his own words as quoted in the New York Post, "used every kind of a poker on Johnson I could, cold poker and a hot poker...
...3 had not been tabled, it had to be defeated and the quickest way of doing this was recommittal...
...The Southerners were obviously unwilling to see the Douglas amendment come to a vote and Senator Johnson was unwilling to risk the possibility of a filibuster...
...by so doing they shattered Johnson's hope that the three-bill package of Court overrulers could go through without a time-consuming and party-splitting debate...
...Even more importantly, they committed themselves to an all-out fight in defense of the Court...
...A spokesman for Lyndon Johnson, Washington columnist William S. White, promptly attacked Senator Douglas in his syndicated column with the suggestion that Douglas' attempt "to have the United States Senate express its 'full support and approval' of the Court's decision...
...Senator Hennings wrung from O'Mahoney the admission that the language in the Conference Report was not in either the House or Senate versions of the bill and the Vice President, stretching things a bit in the interest of adjournment, sustained Carroll's point of order against the Conference Report...
...The bill as approved by the House completely reversed the Mallory case by providing that delays in arraignment would not render confessions inadmissible in federal courts...
...All day Thursday, August 21, the battle raged...
...As Senators Carroll, Hennings, Morse, Cooper, and Javits debated this point at length, Johnson became more and more apprehensive over the time being consumed on a bill expected to pass in an hour or so...
...In an effort to forestall this action, ten liberal Democratic Senators led by Humphrey and Douglas let Johnson know in no uncertain terms that they disapproved his proposed course of action...
...The Conference Report reached the Senate floor in the early hours Sunday morning...
...others he begged for help in getting adjournment Saturday...
...the Committee amendment inserting the word "reasonable' held by a two-vote margin, other amendments failed, and the bill passed with some dozen liberals and Senator Butler dissenting...
...As August arrived, the Southern bloc, led by Senator Richard Russell of Georgia, increased the tempo of its demands that the Senate take up the Butler-Jenner measure...
...Many who were indifferent to the desegregation issue were ready to join the assault upon the Court in the name of anti-communism...
...Johnson hesitated for several days...
...For the liberals Johnson held out the bait that the Butler-Jenner bill would be shunted aside and only these "minor" court overrulers enacted...
...The defeat of the motion to table was a blessing in disguise...
...He offered an amendment to the pending bill for himself and Senators Morse and Humphrey that Congress express "its full support and approval of the recent, historic decisions of the Supreme Court of the United States holding racial segregation unlawful...
...The habeas corpus bill even had the support of the Judicial Conference and thus the apparent support of Chief Justice Warren, although there was a well substantiated report that the Chief Justice now disapproved the measure...
...3 as an amendment to the Nelson overruler and the debate centered on the broader bill...
...The House had overwhelmingly passed and sent to the Senate bills: • To reverse the Cole decision (limiting the federal security program to sensitive jobs...
...Johnston quietly put the Conference Report in his pocket and nothing more was heard of the bill...
...Senator O'Mahoney was determined to get action before adjournment and was confident of approval by an exhausted Senate heading for home...
...To those who contended that Congress ought not approve or disapprove Court decisions, Senator Douglas calmly asked: "What have we been doing all afternoon...
...3 Senators to stay off the floor...
...The bill as approved by the Senate Judiciary Committee partially reversed the Mallory case by providing that "reasonable" delays in arraignment would not render confessions inadmissible...
...One can only hope that next time the civil rights organizations and the labor unions—yes, and the bar associations and the law schools—will all recognize that any bill which undermines the Court affects the interests of all...
...Everybody got something—except, of course, the Supreme Court, which would be overruled three times...
...it had been building up ever since the 1954 desegregation decisions...
...Only Mallory remained on the Congressional agenda...
...With the Vice President's ruling, the shut-out was achieved and Congress adjourned...
...The let's-do-something-about-law-enforcement school would get the Mallory overruler...
...Late Wednesday night, Senator Hennings moved to table H.R...
...3. To the surprise of almost everyone, since it was generally assumed that Johnson had counted the votes before Hennings made his move, the motion to table was defeated 46 to 39...
...on Saturday, August 16, the Senate Democratic Policy Committee announced that the three-bill package had been approved for action before adjournment...
...Johnson turned quickly to the remaining work of the Senate (foreign aid, etc...
...Despite the obvious absurdity of state action in the "anti-subversive" field, only a few Senators would have been willing to risk the "soft-on-Com-munism" onus that comes with opposition to any bill aimed at "subversives...
...For Lyndon Johnson himself, this was the perfect package—not only could all groups be placated by it, but the anti-Court bills could be gotten out of the way in a few hours before adjournment without major debate or substantial split in Democratic ranks...
...One can hope, too, that the pro-civil rights forces in Congress will recognize that the best defense of the Court, and the surest way to end the present attack, is by Congressional action implementing the desegregation decisions...
...A whole raft of bills to overrule Supreme Court decisions were in various stages of the legislative process as Congress raced for adjournment the first days of August...
Vol. 22 • November 1958 • No. 11
