Robert M. Lichtman - The Supreme Court and McCarthy-Era Repression

One Hundred Decisions

ROBERT M. LICHTMAN

UNIVERSITY OF ILLINOIS PRESS
Urbana, Chicago, and Springfield

2012 by Robert M. Lichtman

All rights reserved

Manufactured in the United States of America

C 5 4 3 2 1

This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data Lichtman, Robert M.

The Supreme Court and McCarthy-era repression : one hundred decisions / Robert M. Lichtman.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-252-03700-9 (hard cover : alk. paper)

ISBN 978-0-252-09412-5 (e-book)

1. United States. Supreme CourtHistory20th century.

2. Civil rightsUnited StatesCases.

3. United StatesPolitics and government19451989. I. Title.

KF 8742. L 53 2012

342.73085026409045dc23 2011052767

[I]t is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

Alexander Hamilton, The Federalist Papers, No. 78

The federal judges... must know how to understand the spirit of the age, to confront those obstacles that can be overcome, and to steer out of the current when the tide threatens to carry them away, and with them the sovereignty of the Union and obedience to its laws.

Alexis de Tocqueville, Democracy in America

For those for whom the McCarthy era coincided with formative years, the memories are indelible. As college students, we saw parents careers disrupted, professors fired, friends drafted into the Army to be faced with punitive discharges, all by reason of transient political associations. As a law student, I eagerly read the Supreme Courts decisions in Communist cases and, as a young lawyer in Washington, D.C., heard arguments at the Court. My resolve to write about these cases and the justices who decided them was deferred during decades spent in an all-consuming law practice but never abandoned.

I owe a debt of gratitude to Harold A. Ward, Judge Patricia M. Wald, Marc S. Galanter, Daniel J. Leab, Stephen Weissman, and Jacob Bronstein, each of whom undertook to read my manuscript (or portions of it) and to offer perceptive comment and encouragement. The archivists and librarians at the Library of Congress, Yale University, Princeton University, University of Kentucky, University of Texas, and the San Francisco Public Library gave invaluable assistance. I owe a special debt to Laurie Matheson of the University of Illinois Press for her consistent support and useful advice. And I am profoundly grateful to my family and friends who tolerated me during the years I spent writing this book.

The McCarthy era, which began in the late 1940s and continued for more than a decade (years after Senator Joseph R. McCarthys 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 (195053), that resulted in sizable American casualties and ended in a frustrating stalemate.

While historians may disagree as to precisely which periods of American history may accurately be termed repressive, a fair listing would include:

All of these repressive practices posed issues under the Constitution, and over time they became increasingly the subject of litigation, federal and state, with many cases reaching the U.S. Supreme Court. Because each period involved a perceived danger to the nation, with the governments actions justified as necessary to protect the national security and supported by public opinion, Supreme Court justices repeatedly found themselves in an unenviable position, forced to choose in a time of crisis between upholding government action they deemed unlawful or deciding in favor of despised dissidents.

William O. Douglas, a member of the Court for more than three decades, whose tenure encompassed World War II and the McCarthy era, commented: The Court is not isolated from life. Its members are very much a part of the community and know the fears, anxieties, cravings and wishes of their neighbors. That does not mean that community attitudes are necessarily translated by mysterious osmosis into new judicial doctrine. It does mean that the state of public opinion will often make the Court cautious when it should be bold. Felix Frankfurter, who served on the Court with Douglas, wrote in 1951 during the McCarthy era that judges, howsoever they may conscientiously seek to discipline themselves against it, unconsciously are too apt to be moved by the deep undercurrents of public feeling. Earl Warren, chief justice for most of the McCarthy years and himself the target of fierce criticism, observed that always agreeing with the dominant interests would be a serene way of life. It is comforting to be liked, and it would be pleasant to bask in the sunshine of perpetual public favor.

This book is about the situation faced by Supreme Court justices in the McCarthy era, obliged in scores of cases over more than a decade to decide the lawfulness of executive and legislative action directed at alleged Communists and subversives. The events demonstrate the Courts vulnerability in a time of political repression, when a refusal to acquiesce in the repressive actions demanded by popular opinion may lead to harsh attacks in the press and in the Congress, and may result in legislation to curb the Court and limit its independence. The McCarthy-era court did acquiesce at the outset; but when, in 1956 and 1957, it issued a series of decisions in favor of accused Communists, it triggered a firestorm of public criticism and congressional action that forced it to retreat. The attacks and political pressures deepened existing divisions and rivalries among the justices. The Courts retreat was accomplished almost entirely in 54 decisions.