Nine Men Against America
The Supreme Court and its Attack on American Liberties



Red Monday

But on June 17, 1957, the Court really went to town—amid the cheers and hurrahs of the communist conspirators. The day has come to be known as Red Monday, as well it might. It was on that day that Chief Justice Warren, with Justices Frankfurter, Black, Douglas, Harlan, and Brennan concurring—and only Justice Clark dissenting*—took away from congressional investigating committees their freedom of inquiry. It did so (in Watkins v. U.S.) on the ground that a witness who refused to answer questions wasn’t in contempt of Congress if the committee failed to spell out for him the “pertinence” of its questions and the purpose of the inquiry. As pointed out in the beginning of this book, congressional committees investigate to get needed information for their constituents and to write necessary legislation. But, according to Chief Justice Warren, who read the decision, they now have to know what they are going to do and how to do it—and explain it all explicitly to witnesses—before they can get the information they need to decide how they are going to act. That may sound ridiculous to a normal mind, but that’s what the Court said.

In the process, the Court also nailed down the clamp it had placed—in the Slochower decision—on the rights of the states to protect their students against subversive teachers. Paul M. Sweezy, a professor at the University of New Hampshire, was accused of teaching communist doctrine to his students. The legislature of the sovereign State of New Hampshire directed its attorney-general to find out if this was true. He tried on two separate occasions to get some information out of Sweezy. Sweezy denied he had ever been a member of the Communist Party. But he would not answer any questions about his alleged connections with known communists. The highest court of the State of New Hampshire held Sweezy in contempt. The Supreme Court reversed the New Hampshire court and freed Sweezy. Why? Well, the learned justices couldn’t quite decide. Chief Justice Warren and three of his colleagues (Justices Douglas, Black, and Harlan) said, in effect, the state had gone about the whole matter the wrong way. Justice Frankfurter said, in a separate concurrence, that state officials have no right to question the beliefs and associations of professors in state institutions! You build buildings for them to teach in; you hire them; you pay them—but don’t you dare ask if they are good Americans! Justices Burton and Clark dissented from this opinion; Justices Brennan and Whittaker took no part.

It was on that same Red Monday that Justice Harlan delivered the decision—with the help of Justices Black, Frankfurter, Douglas, Warren, and Burton —which makes it practically impossible to prosecute conspirators against America until they physically start overthrowing the government. The decision involved the Smith Act, which makes it a crime “to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence.” In 1951 the Court under Chief Justice Vinson, by a 6-2 vote, upheld the constitutionality of the Smith Act and cited the communist conspiracy in America as a “clear and present danger.” But now the Warren Court has said, with some hair-splitting that would put a “Philadelphia lawyer” to shame, that the “clear and present danger” is an abstract principle. In effect, it doesn’t become concrete until guns are fired and bombs thrown.

You will recall that, in the Steve Nelson case, the Court, through Chief Justice Warren, wiped out the anti-sedition laws of 42 states on the ground that we had a federal law covering the matter. What do you suppose that federal law was? It was this Smith Act, which Justice Harlan and his colleagues, including Chief Justice Warren, now practically nullified—the law which Warren had said earlier gave the states all the protection they needed against sedition!

Thus the Warren Court wound up its 1956-1957 session. In the three years up to and including that term—three years with Mr. Elsenhower’s Chief Justice at the head of the Court—it issued at least fifteen decisions designed to put the meddling fingers of the federal politicians further into state affairs, and to break down completely all our defenses against the communist conspirators in our midst. Chief Justice Warren wrote five of these decisions and concurred in all fifteen. Justice Harlan wrote three of the decisions. Justice Brennan wrote one. Justice Harlan dissented in only two of the fifteen cases. That is the record of the Eisenhower appointees to the Court. Of the remaining decisions, Justice Black wrote two, Justice Clark one, and three were unsigned. All fifteen were concurred in by Justices Frankfurter, Douglas, and Black, as well as by Chief Justice Warren. In other words, the Chief Justice has aligned himself completely with the leftist members of the Court. There were five dissents by Justice Reed, five by Justice Burton, and three by Justice Minton. But Reed and Minton are no longer on the Court, thus leaving as almost the only dissenter Justice Clark, who filed eight disagreements—some of them excoriating his fellow justices for impliedly giving aid and comfort to the communist enemy.

In the first part of the 1957-1958 session, still in progress as this is being written, the justices did nothing to soften the deep-red hue of this record. In December, 1957, they stopped the deportation of another alien with a communist record, though Congress has declared that aliens with past communist records must be sent back to the country of their origin. Justice Frankfurter wrote the decision and was joined by Black, Douglas, and Brennan. Justice Clark wasn’t so lonesome this time in his dissent—he had the company of Harlan, Burton, Clark, and Whittaker, though Justice Harlan made sure to signify that he was dissenting “with regret.”

The Court’s solicitude for communists and criminals was further illustrated in the fall of 1957 when it gave its blessing to a convicted felon in California who failed to fulfill the requirements of a state law requiring registration with the police. According to the Court, the felon was within his “rights” because he didn’t know about the law. For law-abiding American citizens, ignorance of the law is no excuse for breaking it. Witness, for instance, the raft of traffic tickets handed out every day for violations of rules broken by ignorant motorists. But, according to the Supreme Court, convicted felons are in a class by themselves. Justice Douglas, for the Court, admitted that “ignorance of the law will not excuse” but that in the felon’s case, the conduct “was wholly passive—mere failure to register!”

* Justices Burton and Whittaker did not participate in this case.

Yates v. U.S.

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