Ike Goes on Packing—Harlan, Brennan, and Whittaker
It is this Court as constituted at the time of the school decision, and as partly reconstituted by President Eisenhower with the appointments of Justices Harlan, Brennan, and Whittaker, in addition to Chief Justice Warren, which stormed that final bastion mentioned earlier—our efforts to protect ourselves against the communist conspiracy in America.
Justice Charles E. Whittaker, who replaced Justice Reed, we may dismiss quickly since he was too recent an appointee to have had any part in this foray. He was born (in 1901) and brought up on a Kansas farm and worked his way through the law school of the University of Kansas City, where he later had a successful law practice. He has been a lifelong Republican and is considered by lawyers a “middle-of-the-roader.” He himself refuses to say whether he is a “modern” Republican or not. Justice Whittaker had some judicial experience of rather brief duration—eight months on the United States Circuit Court of Appeals and District Judge for two years before that—both appointments at the hands of President Eisenhower.
Justice John Marshall Harlan, appointed in 1955 to replace Justice Jackson, was also rather short on judicial experience. He served one year on the Circuit Court of Appeals in New York. It is believed he was appointed to that post because Eisenhower contemplated eventually giving him a Supreme Court appointment, and was sensitive to criticism of the Court because of its lack of judicial experience. He was born in Chicago in 1899, but later became a New Yorker. He is a graduate of Princeton and also a Rhodes Scholar. He got his law degree from New York Law School in 1924 and in 1932 became a partner in one of the largest law firms in New York.
Justice Harlan seemed to possess a naïveté unbecoming a Justice of the Supreme Court. He had been a member of the Atlantic Union Committee since 1952. During the hearings on his appointment, he was asked about this. His answer revealed that he was either a very naïve man or that he took the senators for fools. He said the Atlantic Union Committee was only an instrumentality “trying to bring about collective action in defense against communism.” Senator William E. Jenner then read to Mr. Harlan the purposes of the Atlantic Union Committee—a common defense, a common currency, common trade, and a common citizenship among the United States and the Western European nations. Harlan expressed great astonishment that he had been supporting a group which favors the sinking of American sovereignty into a union with Great Britain and other European countries.
There had never been any secret about the Atlantic Union’s purposes. It spends a good deal of money publicizing them and working to get congressmen and senators to pass a resolution calling an international convention to put them into effect. Justice Harlan spent four years on the advisory council of the Atlantic Union Committee. But only when the senators confronted him with the facts about its purposes did he disassociate himself from its objectives.
In fact, Justice Harlan’s naïveté seemed to know no bounds. A question of vital importance which has been before the American people in recent years is whether or not a treaty—made by the President with only the consent of the Senate—can override the Constitution. There are those amongst our internationally minded one-worlders who insist that it can. Unfortunately, the Constitution itself is somewhat vague on the point—no doubt because the framers who fought for American independence did not conceive of a time when it would be willingly relinquished by such a subterfuge. Even John Foster Dulles, in an unguarded moment before he became President Eisenhower’s Secretary of State, declared that a treaty could conceivably destroy the Constitution and even the Bill of Rights. To correct this flaw in the Constitution, Senator John Bricker of Ohio had had before the people since 1951 an amendment to the Constitution—known as the Bricker Amendment. At one session of the Senate it came within one vote of the required two thirds for passage.
Justice Harlan, in 1955, was asked about his views on the Bricker Amendment. His reply was that he had been too busy with his law practice to know what it was all about. It had not only been before the country for nearly five years, but had been overwhelmingly ratified by the American Bar Association’s House of Delegates three times. Justice Harlan was a member of the American Bar Association.
In the light of Justice Harlan’s seeming ignorance on these points, it is interesting to note that one of his most ardent boosters was Judge Joseph Proskauer of New York. In fact, they formed a mutual admiration society, Justice Harlan also praising Judge Proskauer highly. In 1948 Judge Proskauer, together with Dr. Philip Jessup (of the communist-infiltrated Institute of Pacific Relations) and Alger Hiss filed a brief before the Supreme Court of the United States as “friends of the court” (amici curiae). The case involved a restrictive covenant and it was the contention of Proskauer, Jessup, and Hiss that the covenant was illegal because it violated the United Nations Charter. The United Nations Charter controlled domestic law in the United States!
One other interesting sidelight on Justice Harlan, which of course may not be significant, is that his grandfather was the lone dissenter in the Plessy v. Ferguson case of 1896, which affirmed the principle of separate but equal facilities.
Justice William J. Brennan, Jr., of New Jersey, who succeeded Justice Minton, had at least had considerable judicial experience as a judge of New Jersey’s Supreme Court. He is a native of New Jersey, having been born in Newark in 1906. He attended the University of Pennsylvania and got his law degree from Harvard Law School in 1931. One of his teachers at Harvard Law was Professor—now Justice—Felix Frankfurter. Nobody seemed to know much about Brennan’s views when he was appointed, though one official described him as a “middle-of-the-roader” (another one!)—this time a “modern Democrat.” It is believed he was appointed chiefly because he was a Catholic and there had been no Catholic on the Court since Murphy’s death. But if the President was looking for a man of real Supreme Court caliber whose only other qualification was his religion, he had two of them right under his nose in Washington. One had been Chief Justice of the United States Court of Appeals there since 1935—Judge Harold M. Stephens. Another—with the additional qualification of being a member of the President’s own party—was a circuit judge of the same court—John A. Danaher. Both were Catholics. But here was the rub. Judge Stephens was known as a strict constitutionalist and Judge Danaher as a conservative.
There seems little doubt that it was the “liberal”-internationalist crowd of “modern” Republicans around New York and New Jersey who sold Justice Brennan to the President. He wasn’t on the Court very long before he gave us a good peek into his mind. In his very first opinion, he wrote the decision (Jencks v. U.S.) opening the FBI files to the communists, to say nothing of assorted crooks, grafters, and narcotics peddlers. Fortunately, Congress corrected this outrageous decision somewhat before it adjourned in the summer of 1957. And, to his credit, Justice Clark wrote a stinging dissent to Justice Brennan’s decision. But Justices Warren, Black, Frankfurter, Harlan, Douglas, and Burton went along with Justice Brennan.
Justice Brennan saw the fruit of his decision on December 31, 1957, when the government asked a U.S. District Judge to dismiss its case against Clinton E. Jencks. Jencks was a labor-union official convicted of filing a false non-communist affidavit. When he appealed to the Supreme Court, Justice Brennan, for the Court, ordered a new trial for Jencks, on the ground that his FBI dossier was not made available to him. District Judge R. E. Thomason reluctantly granted the government’s request to drop the case against Jencks. But he could not resist pointing out (for Justice Brennan’s benefit, perhaps?) that Jencks was tried by a fair and impartial jury and found guilty. Judge Thomason added: “This court thought he was guilty then and thinks he is guilty now.”
Even more serious is the fact that in January, 1958, the U. S. Court of Appeals in Washington reversed the finding of the government’s Subversive Activities Control Board that the Communist Party of the United States must register as a subversive organization. Why? Because under Justice Brennan’s ruling in the Jencks case, the Communist Party had not been shown the secret FBI reports on its activities.
Justice Brennan, in his brief tenure on the Court, has won himself a place in the hearts of our “liberals” and leftists. He has voted almost without a break with Black, Douglas, and Warren.
Go to top.