It is three years since this book was written. In that time, nothing has happened to alter the evidence here recounted, or the results thereof, relating to the blows struck at the American edifice by the nine justices of the Supreme Court of the United States.

There has been, at this writing, only one change in the personnel of the Court. Justice Harold M. Burton, a Truman appointee, resigned on October 6, 1958 for reasons of health. President Eisenhower appointed in his place Justice Potter Stewart of Ohio. Justice Stewart, at least, has had some previous judicial experience (four years as a judge in the U. S. Court of Appeals)—a fact few of his colleagues on the high court can boast of. He became the youngest member of the Court, being 43 years old at the time of his appointment in 1958. He is a Yale graduate, and once served as mayor of Cincinnati. He was known as a Taft Republican and there was hope, at the time of his appointment, that at long last a true conservative, with a deep respect for and knowledge of constitutional principles, had appeared on the high bench. The hope was largely illusory. In a surprising number of cases, Justice Stewart has voted with the “liberal” Warren-Black-Douglas-Brennan group.

There has been an attempt, in the last three years, to discover a cleavage in the Court between this Warren-dominated “liberal”-leftist group, sometimes joined by Justice Clark, and a so-called “conservative” group made up of Justices Frankfurter, Harlan and Whittaker—with Justice Harlan, too, occasionally wandering over the line. That the latter justices can be called “conservative” in the light of their records as set forth in this book, is an indication of how far the “liberal” majority has strayed from the true meaning of the Constitution—and of how semantically incorrect we have become in our use of words.

Generally speaking, there have been few decisions in the last three years to indicate a reversal of the story told herein—of the Court’s tendency to usurp the powers of the Congress and the states, to tailor its decisions in favor of the communist conspirators, to further entrench the labor-union monopoly, to treat the Constitution as though it did not exist. Merely because the sensational days of the pro-communist decisions and the school cases are past, there is no reason to view with complacency the continued leftward trend of the Court. Even in so open-and-shut a case as the conviction of top Soviet spy Rudolph Abel, the Supreme Court in April, 1960 let his conviction stand only by a 5-4 decision. Had Justice Frankfurter, for instance, taken one of his famous slides across the bench, Abel would today be a free man.

It might be well to note here two major criticisms leveled not only at this author and those of other books pointing to the derelictions of the Nine Men, but also at distinguished senators, congressmen, judges and attorneys who castigate the Court. One criticism has to do with the “inviolability” of the highest court in the land. In fact, Justice Douglas recently declared that Americans courts are “sacrosanct as a cathedral”— to which the New York Daily News properly and succinctly replied: “Nuts!” However, we would like to call as a witness Justice Douglas’ colleague, Justice Felix Frankfurter. In Bridges v. California (314 U.S. 252) Justice Frankfurter stated:

Judges as persons, or courts as institutions, are entitled to no more immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice, they may forget their common human frailties and fallibilities . . . judges must be kept mindful of their limitations and of their ultimate responsibility by a vigorous stream of criticism expressed with candor, however blunt.

The other major indictment leveled at critics of the Court is that they make wild and sweeping statements as to the ultimate results of the Court’s unconstitutional decisions. For instance, those who declared, at the time the Court usurped the legislative function in the school segregation cases, that the decision would set back amicable race relations in the United States by 50 years, were denounced as demagogic. Can anyone today—seven years after that famous decision—declare that race relations are better than they were before the Warren Court acted? And it may have been a “sweeping” statement to say, regarding another famous case in 1957 in which the Court freed a confessed rapist (see pp. 139-141) that thanks to the Supreme Court he was free to rape again. But in May, 1960, the Philadelphia police arrested this same man and charged him with raping a 21-year-old mother when she discovered him burglarizing her home.

The Court seemingly mitigated (in Barenblatt, 1959, and Wilkinson and Braden, 1961) the harshness of its earlier decision in the Watkins case (see page 128) hamstringing congressional investigations of subversion. But the later decisions clearly applied only in the particular instances under consideration. More important, as in the Abel case, they were 5-4 decisions—much too close for comfort in cases involving a menace as great as the communist conspiracy.

The problem of the Supreme Court and its nine justices is no different today than it was three years ago. As David Lawrence, the well-known editor and columnist has put it: “The issue is whether the people shall be governed by a written constitution which is subject to change only by their will or whether that Constitution shall be rewritten by the Supreme Court justices to suit their personal or ideological whims.”

ROSALIE M. GORDON

Bayside, L.I.
March, 1961