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347

UNITED STATES SUPREME COURT

HEARING

BEFORE THE

SUBCOMMITTEE TO INVESTIGATE THE
ADMINISTRATION OF THE INTERNAL SECURITY
ACT AND OTHER INTERNAL SECURITY LAWS

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

EIGHTY-FIFTH CONGRESS

FIRST SESSION

ON

S. 2646

AUGUST 7, 1957

Printed for the use of the Committee on the Judiciary

UNITED STATES
GOVERNMENT PRINTING OFFICE

WASHINGTON : 1957

1

COMMITTEE ON THE JUDICIARY

JAMES 0. EASTLAND, Mississippi, Chairman ESTES KEFAUVER, Tennessee

ALEXANDER WILEY, Wisconsin OLIN D. JOHNSTON, South Carolina WILLIAM LANGER, North Dakota THOMAS C. HENNINGS, JR., Missouri WILLIAM E. JENNER, Indiana JOHN L. MCCLELLAN, Arkansas

ARTHUR V. WATKINS, Utah JOSEPH C. O'MAHONEY, Wyoming EVERETT MCKINLEY DIRKSEN, Illin MATTHEW M. NEELY, West Virginia JOHN MARSHALL BUTLER, Maryland SAM J. ERVIN, JR., North Carolina

ROMAN L. HRUSKA, Nebraska

SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECU

ACT AND OTHER INTERNAL SECURITY LAWS

JAMES 0. EASTLAND, Mississippi, Chairman
OLIN D. JOHNSTON, South Carolina WILLIAM E. JENNER, Indiana
JOHN L. MCCLELLAN, Arkansas

ARTHUR V. WATKINS, Utah
SAM J. ERVIN, JR., North Carolina

JOHN MARSHALL BUTLER, Marylan MATTHEW M. NEELY, West Virginia ROMAN L. HRUSKA, Nebraska

ROBERT MORRIS, Chief Counsel
J. G. SOURWINE, Associate Counsel
BENJAMIN MANDEL, Director of Research

II

IMITATION OF APPELLATE JURISDICTION OF THE

UNITED STATES SUPREME COURT

WEDNESDAY, AUGUST 7, 1957

UNITED STATES SENATE
SUBCOMMITTEE TO INVESTIGATE THE
ADMINISTRATION OF THE INTERNAL SECURITY ACT
AND OTHER INTERNAL SECURITY LAWS, OF THE

COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met, pursuant to call, at 2:35 p. m. in room T'nited States Capitol Building, Senator James O. Eastland, Sairman, presiding. Pent: Senator Eastland. Liso Present: Robert Morris, chief counsel; Julien G. Sourwine, cute counsel ; Benjamin Mandel, research director. 12 CHAIRMAX. Let's have order. Proceed.

CLIENT OF HON. WILLIAM E. JENNER, SENATOR FROM THE

STATE OF INDIANA

Sor JENNER. Mr. Chairman, I am grateful for this opportunappear and testify on behalf of my bill, S. 2646, to limit the se jurisdiction of the Supreme Court in certain cases. bill referred to is as follows:)

[S. 2646, 85th Cong., 2d sess.) To limit the appellate jurisdiction of the Supreme Court in certain cases. inscted by the Senate and House of Representatives of the United America in Congress assembled, That (a) chapter 81 of title 28 of

States Code is amended by adding at the end thereof the following mitation on appellate jurisdiction of the Supreme Court. istanding the provisions of sections 1253, 1254, and 1257 of this

te Supreme Court shall have no jurisdiction to review, either by apof certiorari, or otherwise, any case where there is drawn into ques

dity ofi 20 function or practice of, or the jurisdiction of, any committee or emittee of the United States Congress, or any action or proceeding na witness charged with contempt of Congress;

uny action, function, or practice of, or the jurisdiction of, any offiagency of the executive branch of the Federal Government in the uration of any program established pursuant to an Act of Congress

ise for the elimination from service as employees in the executive

of individuals whose retention may impair the security of the Be states Government;

any statute or executive regulation of any State the general purwhich is to control subversive activities within such State;

“(4) any rule, bylaw, or regulation adopted by a school board, boar of education, board of trustees, or similar body, concerning subversiv activities in its teaching body; and

“(5) any law, rule, or regulation of any State, or of any board of ba examiners, or similar body, or of any action or proceeding taken pursuar to any such law, rule, or regulation pertaining to the admission of person

to the practice of law within such State." (b) The analysis of such chapter is amended by adding at the end there the following new item : "1258. Limitation on the appellate jurisdiction of the Supreme Court."

Senator JENNER. As the committee knows, I discussed this bill an the reasons back of it at considerable length in a speech on the flo of the Senate. I should like to ask that the text of that speech | included in this hearing record. May it go in, Mr. Chairman?

The CHAIRMAN. Anything you want will be put in the record. (The text of the speech follows:) Just about a year ago in June 1956—a member of the United States Sena declared, in a speech on the Senate floor, that "if the Supreme Court had anoth 3 or 4 months to hand down decisions which help the Communist Party, o Government and our institutions might well be at the mercy of the Commun conspiracy by the end of the summer."

Decisions which the Supreme Court have handed down since that time ha gone infinitely in undermining efforts of the people's representatives at bo the national and State levels to meet and master the Communist plot agair the security and freedom of this Nation.

No conceivable combination of votes in the Congress could have done as mu damage to our legislative barriers against communism and subversion as t Supreme Court of the United States has done by its recent opinions.

The Supreme Court has dealt a succession of blows at key points of the leg lative structure erected by the Congress for the protection of the internal sec rity of the United States against the world Communist conspiracy.

Time after time, Congress has acted to shore up these legislative bulwar) and time after time, the Supreme Court has knocked the props out from und the structure which Congress has built.

There was a time when the Supreme Court conceived its function to be 1 interpretation of the law. For some time now, the Supreme Court has be making law-substituting its judgment for the judgment of the legislat branch.

There was a time when a Justice of the Supreme Court might dissent in a c of first impression, but could be relied upon to decide the next case involv similar points in accordance with the prior decision of the Court, notwithsta ing his own prior dissent. This was because Justices of the Supreme Co respected the Court and respected the principle of stare decisis. Nowadi individual members of the Supreme Court are constantly busy defending th own positions, and a Justice who files a minority opinion on a particular pa can usually be expected to stick to that opinion whenever the point is rais thus keeping the Court constantly split.

By a process of attrition and accession, the extreme liberal wing of the Co has become a majority; and we witness today the spectacle of a Court c stantly changing the law, and even changing the meaning of the Constituti in an apparent determination to make the law of the land what the Court this it should be.

Laymen and lawyers, the legislative branch and the executive branch of G ernment, have come to recognize the predilection of the Supreme Court making new law. Even the lower courts have come to expect it, with the res that it has become commonplace for decisions to be held up in lower courts wi ing for the Supreme Court to make some new law that will apply to the case

A particular flagrant example is the case of Albert Blumberg, convicted March 1956 of violation of the Smith Act, but not yet sentenced, and now lik to be turned loose through application of the new doctrine enunciated by Supreme Court in the Jencks case.

Ā jury convicted Blumberg in March of 1956; and in May of 1956 Judge Krk in Philadelphia, heard argument on a defense motion to set aside the verdict a for an acquittal. Judge Kraft never acted on that motion, and is free now

apply the Supreme Court's decision in the Jencks case to the facts and issues the Blumberg trial held a year ago last March.

The Jepeks case, as you know, is one of a group of very recent decisions which bare gone even farther and faster than the Court ever has gone before in the direction of the left.

There can be no doubt that the total effect of these decisions of the Supreme Cuart has been to weaken the Government's efforts against Communists and subversires.

By some of these decisions, antisubversive laws and regulations have been randerd ineffective. States have been denied the right to fight subversion, and bare been denied the right to bar Communists from practicing law. Violators

Federal antisubversive laws have been turned loose on flimsy technicalities. Confidential files of the FBI and of other investigative and law-enforcement agencies have been opened up to fishing expeditions by defendants and their cansel The (ourt has challenged the authority of Congress to decide upon be scope of its own investigations and the right of a congressional committee to make up its own mind about what questions to ask its witnesses.

Many pending cases may be affected, and an undetermined number of cases already settled may be reopened, as a result of recent decisions of the Supreme Court, regardless of what Congress may find it possible to do toward curing the situation, because while Congress cannot make a new law that will affect a case already tried, the Supreme Court can, and does. The Supreme Court can change overnight a rule of law 100 years old, and can make the new rule apply to all es underway, and provide a basis for reopening cases already tried which bvolved the point covered by the new rule.

There is no way for Congress to invalidate or repeal a decision of the Supreme Ceart of the United States, even when that decision is legislative and policyaling in nature. Congress can in some cases strike down judge-made law by acting new law, or by correcting the Court's error, respecting the intent of sugress, by a new declaration of intent. This power of the Congress should be exercised to the maximum of course; but it will not fully meet the situation. The Court has become for all practical purposes a legislative arm of the Governsent and many of its feats

are subject to no review. Let's look at some of the Supreme Court's recent decisions which had particular part of a legislative nature.

Daring the closing weeks of its 1956 session the Court decided the case of Srler T. Pennsylrania, and in that decision threw a roadblock against the efforts

the people to check the spread of Communist power through their State govCorneats. The Court told the sovereign States that even though they themselves ght be in danger of being overthrown by the Communist conspiracy, they acht ant act, because, said the Court, Congress had “pre-empted” the field. Atenetess general from several of the States last year came to Washington to aty hn the Supreme Court's decision in the Nelson case had completely fotstrated their previously effective efforts against the Communist conspiracy thin their States. We had the attorney general from the State of Massachu

s testify that as a result of this decision 15 Communists against whom action bad been taken had to be let loose to go ahead with their subversive activity. Me situation vutlined by the testimony of these several attorneys general of

nerez States was so threatening that the senior Senator from New Hampshire was moved to observe that if the Communist threat should become more serious baka State, the people would have to take the law into their own hands.

0 April 9, 1956, 1 week later, we had to recoil in our deliberations when e apreme Court, in the slochower case, drew the circle even tighter and bed that municipal authorities could not take action to get rid of Communist *Pleurs, who defied a legally constituted body when they had an obligation yk, and by such flagrant misconduct scandalized the mothers and fathers

eutrusted their children to the care of the city. New York City had to asr some of these teachers with back pay, and Professor Slochower himself 12 indemnity of $40,000 because of the consequences of this highly arbitrary

INIDOS decision of the Supreme Court. One has only to read the brief Ped with the Supreme Court by New York City in its quest for reargument to Mom's the recklessness of the Supreme Court's decision in that case. In its un the Court put forth a conclusion to support its findings which conShe New York City convincingly shows was not supported by the record. wly wag it not supported by the record, but the corporation counsel of the

& New York irrefutably showed that the very opposite conclusion was al Bat the Supreme Court was unmoved.

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