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Present and Future of U.S. Labor

Michael Harrington

Books in Review

Record of a Consistent Attack on Civil Liberties

(April 1954)

From The New International, Vol. XX No. 2, March–April 1954, pp. 93–96.
Transcribed & marked up by Einde O’Callaghan for the Encyclopaedia of Trotskyism On-Line (ETOL).

Civil Liberties and the Vinson Court
by C. Herman Pritchett
University of Chicago, $5.00.

Obiter dicta almost completely dominates popular understanding of the Supreme Court. Mr. Dooley, who remarked that the court follows the election returns, is perhaps the chief lay theoretician of the judicial process in the United States. Yet brilliant as the aphoristic approach is – for instance, “The Supreme Court is a permanent Constitutional Convention” – it fails even to approach the more complex truth.

Viewed from a distance of decades and longer, judicial personality and theory merge into a larger movement which is not only sensitive to election returns and social change but even to the vogue of specific philosophers like Herbert Spencer. But decisive events may well take place in the short run. And here, the character of individual justices and legalistic formalities are of great importance. A catch phrase like “separate but equal” can retard civil rights for years. The longevity of appointed judges, like that of the Four Horsemen of the Thirties, cannot create new social movements but it can act as a brake upon them, with very real consequences.

This is made clear in a new book, Civil Liberties and the Vinson Court, by C. Herman Pritchett. The period under consideration is very short – Vinson was sworn in on June 24, 1946 and died last year – but in less than a decade civil liberties were set back in epochal fashion.

Eleven justices, in all, sat on the Vinson Court between the 1946 and 1952 terms. Murphy and Rutledge died in 1949, and were replaced by Minton and Clark. Pritchett breaks these eleven into broad blocs, pro and anti civil liberties, on the basis of a statistical analysis of non-unanimous decisions.

The libertarian group was composed by Murphy (who voted for civil liberties in every case), Rutledge, Black, Douglas and Frankfurter. The anti-libertarians included Jackson, Clark, Burton, Minton, Vinson and Reed. With the deaths of Murphy and Rutledge, the reactionary bloc gained unquestioned control of the court and they retain it to this day.

The Vinson Court began with the inheritance of a fairly strong theory of civil liberties from the “Roosevelt” Court. It was stated by Rutledge in the 1945 case of Thomas v. Collins:

Any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger ... Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.

Yet as soon as the new alignment emerged – the Vinson Court – this position was subjected to attack, modification and eventual destruction. In less than ten years, a constitutional revolution took place in the field of civil liberties, and democratic freedoms had been given an incredibly reactionary interpretation in the highest judicial forum of the land.

Here are some examples:

• Prior Censorship: in 1931, in Near v. Minnesota it was in effect held that all prior censorship was unconstitutional. By 1953, in the case of Poulos v. New Hampshire, it was held: “Regulation and suppression are not the same, either in purpose or result, and courts of justice can tell the difference,” i.e., prior refusal of the right to speak on the basis of licensing ordinances was upheld.
   
• Picketing: in 1940, Justice Murphy stated, in the case of Thornhill v. Alabama, that peaceful picketing was an exercise of free speech and therefore under all protections of the First Amendment. In International Brotherhood of Teamsters v. Hanke, the Vinson Court, speaking through Frankfurter, upheld an injunction against picketing for a legal objective on the grounds that “if Wisconsin could permit such picketing as a matter of policy it must have been equally free as a matter of policy to choose not to permit it ...”
   
• Free Speech: in one of the worst decisions of this court, Vinson held that a Wallaceite whose speech had started a riot, could be arrested for “incitement.” As Pritchett points out, “The Feiner case, does, indeed, approve a formula which can make police suppression of speech ridiculously simple. Any group which wishes to silence a speaker can create a disturbance in the audience, and that will justify police in requesting the speaker to stop.”
   
• Taft-Hartley: the chief civil liberties aspect of this anti-labor law was Section 9 (h) which denied the protection of the act for any labor organization unless its officers not only swore that they were not Communist Party members but also that they “did not believe in ... the overthrow of the United States Government ...” This swearing as to belief is unprecedented. Vinson upheld its constitutionality in a decision which permits fantastic limitation and investigation of individual freedom.
   
• Smith Act: in upholding the infamous provisions of this statute, the court continued the trend begun in the Taft-Hartley Section 9 (h) decision. The trial judge (Medina) had held that the case turned on the intent of the defendants in their discussion, teaching and advocacy. In destroying the clear and present rule of the Gitlow case, the court upheld the intent test. Douglas remarked, “The crime then depends not on what is taught but on who the teacher is. That is to make freedom of speech turn not on what is said but on the intent with which it is said.”
   
• Fifth Amendment: in the Rogers’ case Vinson ruled that the defendant had “waived” her rights by answering an initial question on party membership. Black, Frankfurter and Douglas dissenting, noted that persons pleading the Fifth Amendment “risk imprisonment for contempt by asserting the privilege prematurely; on the other (hand), they might lose the privilege if they answer a single question.”
   
• Attorney General’s List: by confining itself to narrow legalisms in the Joint Anti-Fascist Refugee Committee case, the Vinson Court managed to side step all constitutional issues. The result has been the continued existence and use of a totally arbitrary invasion of constitutional freedoms.
   
• Immigration: Ignatz Mezei, an alien, has been held for several years now on Ellis Island. He has never had a trial. He does not know the full charges against him. The Supreme Court upheld this. Jackson, dissenting, held that executive imprisonment “considered oppressive and lawless since John at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land” has come to the United States.
   

This is just part of the record. Unfortunately, it is impressive. It documents a broad pattern of new restrictions on American liberty. It is fair to say that the Constitution in 1954 is far less of a meaningful document than it was in 1946 before the Vinson Court took over. In his book, Pritchett gives an excellent presentation of how this was done, but he does not discuss why it was done. Yet these are the opposite sides of a coin.

First, as to the question which Pritchett does not treat: why did this ominous trend appear in the decisions of the United States Supreme Court?

Part of the reason obviously lies in the development of the cold war, in the social changes which took place within the period of the Vinson Court. Confronted by the ideological and military threat of Stalinism, American capitalism demonstrated its political bankruptcy by replying in terms of military force and political reaction. This was true with regard to the very real threat of international Stalinism; it was also true with regard to the diminishing threat of domestic Stalinism.

The court was obviously affected by this political shift within the United States. In some cases, this is terribly obvious – for example, the tragic and fantastic haste with which the execution of the Rosenbergs was expedited.

Yet, I think it would be a great error to make a theoretical construct in which this factor of shifting politics is the key to the analysis of the Vinson Court. The United States Supreme Court is an unrepresentative, appointive and life-time body. Of all the branches of government it is the least directly susceptible to short-run political change. If anything, it usually exhibits a cultural lag rather than contemporaneousness. Within this context, the period of the Vinson Court was too short to allow for the working of long range factors, or to admit the hypothesis that its decisions are a one-to-one corollary of the domestic and international reaction which the United States represents in the post-war world.

Yet having said this, having admitted that political factors were at work but denied that they were decisively so, why did this court act as if it were an elective body, i.e., in complete keeping with the reaction of the cold war? The answer, I am afraid, is undramatic. It lies in the psychology of Harry Truman who used the court as a place to reward friends and cronies.

But the how of the Vinson Court also relates to the problem of the relation of the court to social change. The only coherent debate that has taken place has been among three justices: Frankfurter and, on the other side, Black and Douglas. The antilibertarians simply have an empirical gift for the reactionary, more or less devoid of consistent rationalization, but these three justices have argued the social policy of the court’s functions in regard to change.

Frankfurter belongs, by the skin of his teeth, to the libertarian bloc. But this has not prevented him from making a number of striking anti-libertarian decisions. What was the metamorphosis of this “liberal” nominee to the Court?

Frankfurter’s change is bound up in his own personal brand of pedantry. But more than that, it is bound up in his persistence in precisely those attitudes which endeared him to the New Deal. Frankfurter’s philosophy is one of “judicial restraint.” He is conscious of the non-representative character of the court and he feels that he should bend over backwards to allow “legislative experiment.” His is the very antithesis of the conception of the Four Horsemen who struck down so much Roosevelt legislation.

But when the “legislative experiment” shifted from social programs to anti-libertarian legislation, Frankfurter did not budge. He “restrained” himself to allow the Smith Act.

Black and Douglas, on the other hand, are moving in the direction of a judicial theory which includes Frankfurters’ very sound worry over the unrepresentative nature of the court, but which avoids the pitfalls of his civil liberties position. Theirs is the “preferred” theory which calls for judicial restraint on all but matters of civil liberties. These they would argue, are “preferred” by the court since they are the preconditions of democracy. Therefore, in attacks on free speech, the Fifth Amendment, etc., they would argue that the weight is in favor of striking down questionable statutes and not of allowing experiment.

This is far from solving the general problem of the judiciary in a democracy, yet it is a theory which allows for social experimentation, counseling only that it may not be experimentation with basic freedoms.

As far as it goes, Pritchett’s book is brilliant, readable, and will do much to destroy the aphoristic approach to the Supreme Court. Yet one would wish that it had gone into the why of the Vinson Court and explored the problems which can only be raised in a short review such as this.

In the Vinson Court we face, to a limited extent, the close workings of judiciary and politics. But to a more decisive extent, we are in the presence of a tragedy which is not accounted for by structural analysis, but far more by intangible qualities of personality and historical accident. And above all, in the Vinson Court, we face a coherent, consistent attack on the very basis of our liberties, we live in a time which has, in the field of civil liberties, a new Constitution, and one which is probably more reactionary than any in the history of the United States.

 
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