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The Supreme Court and McCarthy-Era Repression

The Supreme Court and McCarthy-Era Repression: One Hundred Decisions

ROBERT M. LICHTMAN
Copyright Date: 2012
Pages: 312
https://www.jstor.org/stable/10.5406/j.ctt3fh3hp
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  • Book Info
    The Supreme Court and McCarthy-Era Repression
    Book Description:

    In this volume, attorney Robert M. Lichtman provides a comprehensive history of the U.S. Supreme Court's decisions in "Communist" cases during the McCarthy era. Lichtman shows the Court's vulnerability to public criticism and attacks by the elected branches during periods of political repression. The book describes every Communist-related decision of the era (none is omitted), placing them in the context of political events and revealing the range and intrusiveness of McCarthy-era repression._x000B__x000B_In Fred Vinson's term as chief justice (1946-53), the Court largely rubber-stamped government action against accused Communists and "subversives." After Earl Warren replaced Vinson as chief justice in 1953, however, the Court began to rule against the government in "Communist" cases, choosing the narrowest of grounds but nonetheless outraging public opinion and provoking fierce attacks from the press and Congress. Legislation to curb the Court flooded Congress and seemed certain to be enacted. The Court's situation was aggravated by its 1954 school-desegregation decision, Brown v. Board of Education, which led to an anti-Court alliance between southern Democrats and anti-Communists in both parties. Although Lyndon Johnson's remarkable talents as Senate majority leader saved the Court from highly punitive legislation, the attacks caused the Court to retreat, with Felix Frankfurter leading a five-justice majority that decided major constitutional issues for the government and effectively nullified earlier decisions. Only after August 1962, when Frankfurter retired and was replaced by Arthur Goldberg, did the Court again begin to vindicate individual rights in "Communist" cases--its McCarthy era was over._x000B__x000B_Demonstrating keen insight into the Supreme Court's inner workings and making extensive use of the justices' papers, Lichtman examines the dynamics of the Court's changes in direction and the relationships and rivalries among its justices, including such towering figures as Hugo Black, Felix Frankfurter, Earl Warren, William O. Douglas, and William J. Brennan, Jr. The Supreme Court and McCarthy-Era Repression: One Hundred Decisions tells the entire story of the Supreme Court during this unfortunate period of twentieth-century American history._x000B_

    eISBN: 978-0-252-09412-5
    Subjects: Political Science, History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Author’s Note
    (pp. ix-xii)
  4. INTRODUCTION: Political Repression and Court-Curbing
    (pp. 1-12)

    The McCarthy era, which began in the late 1940s and continued for more than a decade (years after Senator Joseph R. McCarthy’s censure by the Senate in 1954 and his death in 1957), was the longest of the several periods of political repression that punctuate American history. These episodes were largely the products of wars and national crises. The McCarthy era stemmed from a prolonged “Cold War” with the Soviet Union and its satellites following World War II, accompanied by a much shorter “hot” war against two Asian Communist states, the Korean War (1950–53), that resulted in sizable American...

  5. 1 Defining the McCarthy Era
    (pp. 13-23)

    The more remarkable aspect of the McCarthy era is not that political repression occurred but that its duration and scope were so broad. A combination of circumstances and events following World War II, international and domestic, quite predictably held the seeds of repression:

    With the glow of America’s victory still fresh and a period of peace and normality in prospect, the Soviet Union, a valued ally in the war, abruptly became a dangerous antagonist, forging a bloc of satellite Communist nations and seeking aggressively to expand its influence throughout the world.¹

    The confrontation was not only military and economic but...

  6. 2 The Justices of the Vinson Court, Douds, and the Start of the Court’s McCarthy Era (OCTOBER TERM 1949)
    (pp. 24-36)

    When, on Monday, October 3, 1949, the Supreme Court convened for its new term, one new justice was present, and the chairs of two other justices were vacant. One of those absent was William O. Douglas who, riding horseback in the Cascade Mountains of Washington state on the final day of his summer vacation, was thrown from his horse and suffered multiple broken ribs and a punctured lung. The other vacant chair, draped in black, belonged to Wiley B. Rutledge, who died three weeks earlier at age fifty-five after a cerebral hemorrhage; his replacement, Sherman Minton, had been nominated by...

  7. 3 Dennis, the Attorney General’s List, Loyalty Programs, Contempts, and More (OCTOBER TERM 1950)
    (pp. 37-47)

    The flow of “Communist” cases quickened in the 1950 term, and the scope of the cases widened greatly. The Court continued to acquiesce in the government’s actions, but not entirely.

    During the term the Court addressed basic issues relating to the attorney general’s list of “subversive” organizations and the federal-employee loyalty program. It considered contempt convictions arising from the refusal of three witnesses to give information to a federal grand jury in Colorado. It decided the first of a stream of state and city public-employee discharge cases, this one involving Los Angeles city employees. And it decided a First Amendment...

  8. 4 Deportations, Fallout from Dennis, and the Rosenberg Case (OCTOBER TERMS 1951 AND 1952, SPECIAL TERM 1953)
    (pp. 48-63)

    The Court’s decisions in the 1951 and 1952 terms again largely sustained government action. Deportation issues predominated, with the Court issuing seven signed decisions in deportation cases over the two-year span. Three other decisions were spawned by Dennis, two relating to punishment of Dennis defense attorneys. The Court also ruled on the validity of a loyalty oath required of Oklahoma’s public-school teachers and on New York City’s loyalty program for its teachers. And it considered for the first time loyalty measures applied by the Army to its draftees—in this case, a medical doctor.¹

    In June 1953, at the end...

  9. 5 The Coming of the Warren Court, the Emspak Trilogy, and Brown’s Consequences (OCTOBER TERMS 1953 AND 1954)
    (pp. 64-77)

    Vinson’s July 16 Rosenberg opinion was his last. On September 8, 1953, he died in his home, at age sixty-three, of a massive heart attack. Vinson’s death was received with an outpouring of praise for him from Eisenhower, Truman, and many of the justices. The New York Times cited “his exceptional ability as a negotiator, a trouble-shooter, a reconciler of conflicting views.” News stories that reported his death also speculated on his successor, with the name of three-term California governor Earl Warren, who only a few days earlier announced he would not seek another term, most prominently mentioned.¹

    Shortly after...

  10. 6 Nelson, Cole v. Young, and the Beginning of the Campaign against the Court (OCTOBER TERM 1955)
    (pp. 78-90)

    The flow of decisions in “Communist” cases became heavier in the 1955 term, with the Court handing down nine signed decisions. The government won three, including a major decision upholding the Immunity Act of 1954 (one of Congress’s election-year anti-“subversive” efforts), but two of the cases it lost generated the most discussion, almost all critical of the Court. The year 1956 marked the onset of the spate of court-curbing bills Congress would consider.

    The nine decisions ran the gamut of government action against “subversives”: two contempt cases, one of them against a defense lawyer; a deportation and a denaturalization case;...

  11. Illustrations
    (pp. None)
  12. 7 The “Red Monday” Decisions, Jencks, and a Crescendo of Anti-Court Attacks (OCTOBER TERM 1956)
    (pp. 91-108)

    The Court’s level of resistance to repressive McCarthy-era government action reached its zenith in the 1956 term. There were no sweeping constitutional holdings. “Procedural fault-finding and statutory interpretation,” Robert G. McCloskey wrote, “are still the order of the day.” But the Court’s direction was unmistakable. So also was the intensity of the anti-Court reaction and the impetus given by its decisions to court-curbing legislation.¹

    The Court issued eleven signed decisions in “Communist” cases, and the government lost them all. Four were issued the same day, June 17, 1957, a day critics called “Red Monday.” Two other significant cases were decided...

  13. 8 Beilan, Lerner, and the Court’s Shift, Passport Cases, and Congress’s Court-Curbing Climax (OCTOBER TERM 1957)
    (pp. 109-126)

    The effects of the anti-Court campaign began to be reflected in the Court’s decisions during the 1957 term. “The anti-Court bills,” Lucas Powe wrote, “caused Frankfurter to get religion again.” The justice believed, Powe explained, that Congress was questioning “whether an independent judiciary might be too high a price to pay when the cost was the eradication of the loyalty-security program. . . . Frankfurter was ready to save the Court; prudence dictated the Court yield in this area.” This view, almost incontrovertible in succeeding terms, was only partially confirmed in the 1957 term.¹

    The continued heavy flow of “Communist”...

  14. 9 Barenblatt, Uphaus, and the Court in Retreat (OCTOBER TERMS 1958 AND 1959)
    (pp. 127-143)

    Events moved quickly at the Court following Congress’s adjournment on August 24, 1958. Four days later, convened in a special term, it heard argument in the Little Rock school-desegregation controversy. On September 29, it issued an unprecedented joint opinion by all nine justices, declaring that the constitutional rights of black students “are not to be sacrificed or yielded to the violence and disorder which followed upon the actions of the Governor and Legislature.”¹

    The special term completed, Harold Burton, suffering from Parkinson’s disease, announced his retirement from the Court, at age seventy, after thirteen years as a justice. He was,...

  15. 10 Scales and CPUSA, Wilkinson and Braden, and Konigsberg II and Anastaplo—a Full-Scale Retreat (OCTOBER TERM 1960)
    (pp. 144-160)

    The 1960 term saw a sudden and final outpouring of decisions in “Communist” cases—fifteen signed decisions. The government prevailed in nine (a tenth had a mixed result), every one over the dissenting votes of Black, Warren, Douglas, and Brennan. The decisions included Scales, which upheld the constitutionality of the Smith Act’s “membership” clause, and CPUSA v. SACB, which sustained the registration provisions of the Internal Security Act. Decisions in two contempt-of-Congress cases confirmed that after Barenblatt the First Amendment posed no obstacle to committees seeking to compel disclosure of “Communist” affiliations. And in two bar-admission decisions, the Court ruled...

  16. 11 Frankfurter’s Departure, a Near-Decision in Gibson, and the Era’s End (OCTOBER TERM 1961)
    (pp. 161-170)

    Flux characterized the 1961 term. Two justices left the Court, both unexpectedly for health reasons. Whittaker retired on March 29, 1962, at age sixty-one, after suffering a nervous breakdown. Only a week later, Frankfurter, seventy-nine years old, collapsed at his desk from a stroke and, following a three-month hospital stay and a period of convalescence at home, reluctantly retired—in August after the term had ended. The absence of the two justices had an immediate impact upon the Court’s work. On April 25, Warren advised his colleagues of “the critical condition of our docket.” He expressed concern that “we will...

  17. EPILOGUE: Vietnam War Decisions and Some Observations
    (pp. 171-176)

    The Court’s decisions during the Vietnam War represent a high-water mark in the protection of First Amendment freedoms in wartime—and, quite arguably, any other time. The cases showed graphically the changes in the mode of dissent that occurred in the 1960s.

    In one group of decisions, the Court reviewed the criminal convictions of three individuals who mocked sacrosanct patriotic symbols—the flag, the military uniform—in conveying their antiwar message. One case involved a “guerilla theater” skit, performed at a Houston induction center, in which actors wearing Army uniforms shot a “Viet Cong” (with a water pistol). The Court...

  18. Notes
    (pp. 177-254)
  19. Selected Bibliography
    (pp. 255-266)
  20. Index of Supreme Court Decisions
    (pp. 267-272)
  21. Index
    (pp. 273-286)
  22. Back Matter
    (pp. 287-288)