Seven Supreme Court Decisions and a Law

by Sara

Today's hearings suggest this History of Social Constitutional Law may not be as necessary as I thought yesterday, but who knows.  Things change daily.

I've long been convinced one misunderstands the 1960's, and the movements that characterize it, if you don't know the inch by inch civil liberties legal history that came to pass in the 1950's.  Case Law can seem small potatoes -- but I remain convinced if it had not been for these cases decided in 1957 and 1959, the 60's would have been a very different matter. 

Five Cases were decided in 1957, all but one on what became known as Red Monday, or June 17th, 1957.  It was not Brown v. Board decided in 1954 that gave rise to the "Impeach Earl Warren" roadside signs mostly in the South -- it was the Red Monday cases.  (plus one).

During the run up to the Libby Trial, EW reviewed for us the Jencks Materials released to the defendent in December.  It is named after "his" decision.  Clinton Jencks was a New England Labor Organizer.  In 1950 he complied with state law, and signed a non-Communist affidavit, swearing he had never been one.  The US Government contended he lied, but refused to make available to him witnesses or documents on which they based the lie claim.  Found guilty of the lie, the guilt was confirmed by the Appeals Court -- but when it finally arrived at the Supreme Court, Warren and Brennan led the argument that he should not only get his request (that the judge review the evidence in camera) but on a 5/4 decision he was awarded the rights to see all evidence, and cross examine and depose witnesses, including all reports of FBI informants.  As Warren put it; How could Jencks get a fair trial if he could not see the reports of evidence against him?  The decision gave extra emphasis to this principle if such reports and witnesses were to be presented against him at trial.   (Jencks was not retried.)

The next decision in June, 57 was Sweezy v. New Hampshire.  (Yep, the Sweezy of Monthly Review Fame.)  Paul Sweezy was a Marxist Economist who taught at the U of New Hampshire, and when this caught the attention of the Legislature, they demanded the Attorney General review his lecture notes, and Sweezy's involvement with the Progressive Party.  (That would be the Henry Wallace Progressives of 1948 to which he had once delivered a lecture -- he was not a member).   Sweezy appealed through the New Hampshire Courts, lost, and finally appealed to the Supreme Court, and his decision came, June 17, 1957. 

It was linked with another similar case, Watkins v. US, that raised a similar issue, how far could a legislature, State or US Congress go in conducting investigations of political persuasion or orientation?  In Watkins case, this former labor organizer had been called before HUAC (House on Un-American Activities Committee), asked if he had been a Communist, to which he said no, but that he had been a supporter of popular front causes over the years.  He was convicted of contempt, and his appeal was merged with Sweezy's.  Warren crafted classic language in authoring the majority opinion in this case -- "There is no Congressional Power to Expose for the Sake of Exposure."   Beyond this the court outlined requirements for legislatures, Congress and State, to follow in investiations.  They had to rely on an authority around which they could legitimately legislate.  Since you cannot legislate around past political beliefs or associations, you can't investigate them.  You can't necessarily ask about them unless you can show a contemporary rational.  It is not in the power of any legislature to change what someone thought, wrote or believed in the past. 

Red Monday had two more decisions: Service v. Dulles vastly limited the powers of Loyality Boards.  John Service had been cleared of disloyality in 1951 during the time of Secretary of State Acheson, but this China Expert had not been re-hired by the State Department.  He sued Dulles, and won reinstatement.  The decision recognized the legitimacy of such boards, but if established, Government had to follow their findings, assuming  they offered proper protections for civil liberties, etc, preventing arbitrary decisions.  (I rather think DOJ that fires without keeping records ought to re-read the Warren Court Service Decision.)

The last decision was Yates v. United States.  This grew out of the trial of fourteen California Communists who had been convicted under the Smith Act.  (Making it illegal to organize, teach or advocate the overthrow of the US Government.).  What it did, simply, was apply the operative statute of limitations to Smith Act indictments, it set five of the fourteen free, and remanded for re-trial the rest, on the grounds that the CP in California's organization pre-dated the activity of the five, and the nine deserved a new trial because of doubts whether their actions were within the statute of limitations.  Justice Harlan wrote in the Sweezy and Yates Cases.

While ole Joe McCarthy was dead by the time these decisions came down, (as was MacCarren), the totality of the five put an effective end to the domestic anti-Communist National Security public strategy.  HUAC and a few things like it would hang and putter around on the books for a few years, but in reality all a witness had to do was ask for the legislative intent behind questions -- and much of the worst just went away.  The basis for all these decisions was shy of the First Amendment, in particular Frankfurter strongly objected to deciding these matters as straight First Amendment issues...something borne out in decisions in Upham and Barenblatt in 1959.  Upham was a Methodist Minister who objected to giving over the membership and attendence lists of World Peace Encampments, and Barenblatt was a Vassar Profressor found in Contempt of HUAC for refusal to discuss his current friends, and whether or not they were Communists.  Their contempt convictions were upheld. And while not on the same day, the same court ruled the Alabama NAACP could keep its membership list in New York, and did not have to reveal it to Alabama Authorities -- on grounds it could endanger members if made public.   

As I noted by way of introduction, these decisions, in my opinion, are a critical legal lynch-pin for the 1960's.  Prior to 57, Senator James Eastland regularly held hearings where Civil Rights activists were accused of being Communists -- usually pronounced "Commonists" and were held in contempt and jailed for refusal to reveal memberships and associations.  When they left hearing rooms they would regularly be beaten up, and then accused of perpertrating violence.  After 57 that had to be tailored into a statement of legislative intent, and even after Barenblatt and Upham, any charge had to meet specifications.  It was in some senses a matter of turning the warm water on for a few years, and then cooling it -- but taken all together, it opened the way for the 60's.  If asked why you were sitting in, or supporting a sit in at a lunch counter in 1959-60, you could say -- "Well, I read the Bible, and then I read Gandhi and I really want a cup of Coffee with dignity at a regular lunch counter."  Within these decisions, one finds all this and much much more. 

And now for the irony.......

We all know that the question of buying a cup of coffee -- or anything else in the public marketplace -- ended with Public Accomodations in the 1964 Civil Rights Bill.  But the edge, particularly in the south, against Red Monday in the South stayed, as did the Impeach Earl Warren roadside signs.  So when Nixon got established, in 1969, John Mitchell tried to deal with eliminating some of the protections he believed the Warren Court had blessed on the radicals.  His front man was a very Young John Dean, and the idea was to try to void some of the protections those who did not wish to testify in Congressional Hearings seemed to have.  It was two versions of immunity which could be confired if someone took either the first or fifth amendment and refused to testify.  The legislation offered congressional investigators two sorts -- Use, meaning for particular topics of an agreed limited range, and Transactional Immunity, for the whole appearance.  Passed into law in 1971.  First person to really take advantage of the law -- John Dean, in the summer of 1973.  If one takes the protection of the 1st or 5th -- a legislative body is capable of giving immunity, which in effect forces truthful testimony.   While I have good feelings for John Dean overall (we were Baptized in the same Methodist water on the same 1939 Palm Sunday in Akron Ohio afterall, and we shared the same doctors of those days -- delivery and baby doctor) I really don't think he was inspired to write the immunity laws as his own life raft.   But when he needed it, he used it well.  In fact those laws did not do what he expected -- they did not reverse the Warren Court decisions that by 1970 were warped into common legal assumptions. 

Since those times many small modifications have been made given the case law, but no one has really touched the broad combination of the decisions of "Red Monday,"  June 17, 1957.  No matter how many "Impeach Earl Warren" roadside signs went up on Southern Roadways, and it was mostly in the South, the decisions have stood -- and what they allowed has also stood.  Any thought we could legitimately return to the McCarthy and MacCarren Days is extremely difficult, if not impossible.  And while in the 1950's when it was impossible to imagine legislation that would have done what the Warren Court did (given lack of voting rights and all) -- it is thinkable that the worst of the Patriot Act can be revisited by informed and pressured elected officials and modified to one degree or another.  Afterall non-Judicial Security Letters are on the block now, and who knows what else Waxman, Conyers and Leahy will find, isolate, analyze, and otherwise discredit. 

We put ourselves partially into fear because we really don't recognize all the American Critters who did all this really hard stuff in the past, which we can simply advantage.  McCarthy will not come back.  Fear will -- but we need to learn a good deal more about how to thwart it.   

   

 

Comments

[Bugboy]

Very good, I find it interesting the obviously intentional mispronounciation of communist as "commonist", and then gaming the witnesses to bring them up on charges. Some things never change. And I thought it was only recently that they so took "sucker born every minute" to heart.

[orionATL]

another excellent essay at the intersection of politics and hsitory.

thank you, sara

[eyesonthestreet]

Thank you for this summary. What do you mean by: "Afterall non-Judicial Security Letters are on the block now...?"

[John Casper]

Wow!

[Mimikatz]

Ah, the mystery of the post with no body has been solved. I suspected all along it was Sara. But you fooled us--you were thinking of cases that came down in the '50s that shaped the '60s.

Good essay, as always, but I disagree that we could not revert to McCarthyism/McCarranism. That was really the goal of the Bush/Rove project--pervert the elections system to gain an unfair advantage and take over the judiciary through radical appointments. Demand blind loyalty from a Congress who was only too eager to take the campaign cash (and bribes) and the rigged outcomes. And brand everyone who disagreed as a traitor. A fully remade judiciary would have overturned most of those precedents, I fear.

It might well have worked if the Bushies had been less incompetent. Their penchant for hiring supremely unqualified but loyal youngsters for top jobs and their disdain for expertise ensured that most everything they touched would eventually turn to sh*t. It isn't chance that Iraq, Katrina etc turned out the way they did; it is sheer incompetence and, as so many remind us, it is the predictable fruits of an ideology that doesn't really believe in government as a way of solving problems (other than how to make the rich richer).

[Coyoteville]

Thanks, Sara!

I appreciate the constitutional law history tutorial here. I learned something new today. I hadn't heard of any of these cases. Granted I was a child when they were handed down, and not yet living in the US (my father was in the Foreign Service in Latin America at the time).

[freepatriot]

that's a whole lot of info to digest first thing in the morning

I had to take a few hours to think of a response to that one

studying the history of the Civil Rights Movement is mostly like watching sausage being made, but this was completely enjoyable

I'm glad to know that there was progress made that DIDN'T involve a lynching or church bombing

this proves to me that reality has a bias towards Civil Rights

giving people liberty is hard. Making those people fight for the liberty they have is harder

thanks for helping me and a lot of other people understand the process of how we got here. this diary should make it a little easier to defend our liberty

and as a bonus, the freepi hate these little facts that destroy their fucked up world view

I can't wait to share this dairy with "friends"

[freepatriot]

yo Mimikatz, re "the mystery of the post with no body"

it's not only been solved, all the guesses in the comments thread have been graded, and everybody who guessed was completely wrong

this might be because the title was the only information provided, and it was worded to imply that the rulings happened in the 1960s

now that the mystery has been solved, can somebody ask Sara for the details that led to the "mystery post" I love details)

even if it was unintentional, it worked out pretty good as a vehicle for discussions

[eyesonthestreet]

Mimikatz:

McDonald, from the CV listed in the comments section of the site TPMuckraker.com, held her first government job in 1979, she is hardly a "youngster." If she were hired right out of college, with a masters as the CV states, she would be in her 50's. link to CV: http://www.doi.gov/news/040503b

Do the math: 1979- 6 (years to get a masters) = 1973, year she would have graduated from high school, at about 18 years old. 1973-18= 1955,or year she was born, making her 52, or something near that.

I think there is a naive comfort for critics of this administration to write off the transgressions to underqualified "youngsters." That is not true, most are boomers, and they certainly knew exactly what they were doing.

[Mimikatz]

Ok. I was really thinking of Monica Goodling (who, at 33, is a youngster to me), but then I remmebered MacDonald, who is a real piece of work. But she is a hack.

And I'm not naive about these people, having lived through both McCarthy and Nixon.

[Rick B]

Sara,

Once again, thanks for the information. I graduated high school in 1961 in Texas, and vividly recall the "Impeach Earl Warren" signs and bumper stickers. I had detested both Nixon and McCarthy at a young age, and never realized what followed the condemnation of McCarthy beyond his death from alcoholism.

Can't tell yet what I think this will mean to the Bushies in the future. Glenn Greewald offered an excellent current essay yesterday in which he points out that today's NeoCons are not conservatives in the vein of Goldwater or even Reagan. Bush will be gone in the near future, but the form of highly authoritarian and militaristic conservatism which we now suffer with is not going to leave with Bush and his immediate tribe.

Since in my opinion we now have a Republican Party committed to Rule By Law rather than Rule Of Law, the Red Monday decisions are going to be a real roadblock for them to deal with. They WILL attempt to do so in secret, and we will need to make sure the light shows on their actions.

That's as far as I have gotten in thinking about this, but this essay is one of the very rare things I have read on the internet that I have both saved and printed out to study.

I look forward to your essays. Keep it up.

Richard

[Sara]

Yea, sorry about that post with no content -- I was trying to import the body into typepad, and the Computer ate it for some reason. But this version is better.

My comment on non-Judicial National Security Letters referrs to the hearing this week in Senate Judiciary where Muller testified regarding the FBI's failure to follow the rules in the use of these letters. Leahy apparently has some support for modifying the Patriot Act to take these powers away from FBI given misuse. This would not have been a possible solution in the late 1950's -- any redress would have had to go through the courts simply because of the character of legislatures. Leahy seems to be thinking of requiring judicial review of warrants.

Anyhow, I thought it time to revive the history of the five 50's Civil Liberties cases, (It is, afterall, approaching the 50th Birthday of these five decisions -- Jencks, Sweezy, Watkins, Service and Yates,) and throw them into the discussion about present day issues. Things like limitations on what kind of questions Congress can ask a witness as part of an investigation -- something Monica Goodling clearly needs to learn, need revival and a connection back to these old Civil Liberties cases. Ironically, her protection from "the meanies" rests on the accomplishments of some old 1930's leftie labor organizers.

[FreeThoughts]

Great words and an awesome perspective. Rarely do we appreciate the case law battles before the battles that decide the war. Given what we know now it seems the unintended consequences may have saved them from themselves.

[MissLaura]

The post with no body was fun. It really worked out well.

Although this is also kinda good.

[Beel]

Of course we could go back to McCarthy and worse. As a matter of physics, power always does flow from the barrel of a gun. We are at the moment watching an unfolding causus belli in Iran aren't we?
Get that rolling and the Big Fear returns. It's a part of human nature.

[Nell]

This is one of the most enlightening posts, on any subject, that I've ever read. And I've read more blog posts than I care to think about.

Thank you, Sara.

[greenhouse]

yup, Sara is a treasure.

[John Lopresti]

Since the other thread in which we made up the development ideas, I have found a few cherishable links for context. I will leave those with a brief introductory remarks section, in appreciation. As Mimikatz first reminded us in the other discussion, whose title was somehow more retrospective than Sara's current, and very accomplished elucidation, in the latter days of the subsequent decade Miranda was bedrock formed and enduring substantially providing rights for prisoners for a few decades; until very recently. Remarkably, reading Miranda, one discovers the sole Truman appointee whose tenure lasted beyond the 1950s, Associate Justice Tom Campbell Clark, as was his wont, typically dissented in Miranda, although joining the majority opinion written by Chief Justice Warren in the narrow subsection of Miranda which treated the companion case of Stewart. For the very modern among us, I provide a link to a picture of an oceangoing cardgame around which table were joined both Truman and his appointee to the Supreme Court, Tom Clark; TC is the one reaching for his downcard. An allied and more obsequious depiction may be found elsewhere in government archives, though in this laudatory image Truman seated demonstrates his air of concentrated attention; the text belies that somber appearance, divulging that Truman was a tad more of a dilettante at poker than Hoyle orthodoxy would recommend.

In the other thread I linked to Associate Justice Goldberg's thumbnail biography in which it was stated that among the opinions which he elaborated in his brief tenure on the Supreme Court was Escobedo. In reading Miranda, one is impressed by the number of important precedents the Escobedo case provided for reaching the full suite of protections set in the context of the laws of modern nations which Warren examines in Miranda.

Carrying forward from Miranda into our millenium, the Roberts court concocted the ruling denaturing some of the privacy underpinnings of Miranda in what was primarily a fourth amendment case, that of Booker T. Hudson, Jr., v MI (2006) 04-1360 in which fully half of the 52 page slip opinion is comprised of Associate Justice Breyer's carefully documented argument based on decades of caselaw far beyond the majority opinion composed by triggerhappy Scalia. Breyer's chronology of cases in the last footnote is an excellent guide to the mainstream current in US law which produced the prisoner rights rule in Miranda v AZ.

[Sara]

On Justice Clark -- in his old age and cups, Harry Truman nominated Clark as his worst appointment ever. I've always remembered a combination of Clark's decisions and his various written dissents, when I watch his son, Ramsey Clark, do what in my mind are silly things like defend Milosevich and Saddam Hussain. Bush invades Iraq to vindicate Poppy, -- Ramsey really has taste in clients to vindicate his Daddy. (God, if you exist, get us out of this cycle!!!)

But John Lopresti is right in pointing to the Roberts Court picking cases to hear about Privacy -- you really can't undo Rowe v Wade unless you undo it's root, which is Griswold, which found Privacy in the Constitution, ultimately leading to Rowe. While difficult, one way to thwart Roberts is to send him Privacy cases based on litigation around things like Goodling et al. Does she have a private zone around things she did while in public service? Do USA's being politically dismissed have a right to privacy or at least accuracy in why they were fired? In other words, cases around these privacy matters could emerge from various circuts, with different decisions, forcing the court to take appeals from Conservatives (or wingers) that conflict, but are about the question of a Constitutional basis for privacy.

For while the Court can not pick and choose its issues except as they have a choice of cases -- that string of cases around Red Monday was about an issue being ripe for decision. I think it wise to see Privacy coming in the near future -- and get up the discussion that lays the predicate. As I said, the slow evolution of case law is not exactly great Cable TV Entertainment, but we need to know how critical it is.

[margaret]

This is an excellent post which provokes the question: what to do about the P.A.T.R.I.O.T. Act which is the cause of so much mischief which has partly put us in the situation you describe? My hope is that it will be repealed as the piece of legal garbage that it is. In my mind, it has nullified the Constitution where privacy (among other basic rights) is guaranteed.

[Sara]

I think either repeal or vast revision of the Patriot Act is the direction Leahy was headed when he stubbed his toe on the US Attorney matter. We should never forget this issue emerged because bloggers over at Josh Marshall's place tracked down the elementary pattern of the firings, and then things went from there. But before that, Leahy had called for the GAO studies that provided the base for his hearings on National Security Letters last fall, and he was ready to go on that once he became Chair of Judicary. To get to reform, repeal or revision at some point in the future, Leahy has to lay the predicate. He needs perhaps ten different issues such as the National Security Letters in order to arrive at a point where the Senate will vote out major reform. Frankly, I don't think it is worth trying to do major legislation till we have a different President. No sense doing lots of quality legislative work only to get a Veto. So you get ready for 2009.

[rowcruirl]

I’d prefer reading in my native language, because my knowledge of your languange is no so well. But it was interesting!

[Anydaycaf]

I’d prefer reading in my native language, because my knowledge of your languange is no so well. But it was interesting! Look for some my links:

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