BRENNAN, J., dissenting.

362 U.S.

ence of unfitness for employment from exercise of the privilege before another body, without opportunity to explain on the part of the employee, or duty on the part of the employing body to attempt to relate the employee's conduct specifically to his fitness for employment-as was involved in Slochower. There is the same announced abdication of the local administrative body's own function of determining the fitness of its employees, in favor of an arbitrary and per se rule dependent on the behavior of the employee before another body not charged with determining his fitness.

It is said that this case differs from Slochower because that case involved a determination, based on his invocation of the privilege, that the employee was guilty of substantive misconduct, while this one simply involves a case of "insubordination" in the employee's failure to answer questions asked by the Congressional Committee which the employing agency has ordered be answered. In the first place, Slochower did not involve any finding by the New York authorities that the employee was guilty of the matters as to which he claimed the privilege. The claim of the privilege was treated by the State as equivalent to a resignation, 350 U. S., at 554, and it was only "in practical effect," id., at 558, that the questions asked were taken as confessed; that is, the State claimed the power to take the same action, discharge of the employee from employment, upon a plea of the privilege, as it could have taken upon a confession of the matters charged. The case involved an inference of unfitness for office, then, drawn arbitrarily and without opportunity to explain, from the assertion of the privilege. The same is involved here, and the thin patina of "insubordination" that the

3

3 The opinion in the New York Court of Appeals also makes it quite clear that Slochower was not being discharged as guilty of the matters inquired about. Daniman v. Board of Education, 306 N. Y. 532, 538, 119 N. E. 2d 373, 377.

1

BRENNAN, J., dissenting.

statute encrusts on the exercise of the privilege does not change the matter. If the State labeled as "insubordination" and mandatory ground for discharge every failure by an employee to respond to questions asked him by strangers on the street, its action would be as pointless as it was arbitrary. The point of the direction given to all employees here to answer the sort of questions covered by the statute must have been that the State thought that the matters involved in the questions bore some generic relationship to the "fitness" of the employee to hold his position. But on this basis the case is again indistinguishable from Slochower. If it is unconstitutionally arbitrary for the State to treat every invocation of the privilege as conclusive on his fitness and in effect as an automatic discharge, then the command of the State that no temporary employee shall claim the privilege under pain of automatic discharge must be an unconstitutionally arbitrary command. A State could not, I suppose, discharge an employee for attending religious services on Sunday, see Wieman v. Updegraff, 344 U. S. 183, 192; and equally so it could not enforce, by discharges for "insubordination," a general command to its employees not to attend such services.

The state court distinguished this case from Slochower on the grounds that Slochower was a state employee with tenure, but Globe was a temporary or probationary employee not entitled to a hearing on discharge. On this basis, it concluded that the requirement outlined by this Court in Slochower-that he could not be discharged ipso facto on his claim of the privilege, but only after a more particularized inquiry administered by his employer-did not apply. 163 Cal. App. 2d, at 601–603, 329 P. 2d, at 975-976. But this Court has nothing to do with the civil service systems of the States, as such. And Globe does not here contend that he could not have been discharged without a hearing; but he does attack the

BRENNAN, J., dissenting.

362 U.S.

specified basis of his discharge. Doubtless a probationary employee can constitutionally be discharged without specification of reasons at all; and this Court has not held that it would offend the Due Process Clause, without more, for a State to put its entire civil service on such a basis, if as a matter of internal polity it could stand to do so. But if a State discharged even a probationary employee because he was a Negro or a Jew, giving that explicit reason, its action could not be squared with the Constitution. So with Slochower's case; this Court did not reverse the judgment of New York's highest court because it had disrespected Slochower's state tenure rights, but because it had sanctioned administrative action taken expressly on an unconstitutionally arbitrary basis. So here California could have summarily discharged Globe, and that would have been an end to the matter; without more appearing, its action would be taken to rest on a permissible judgment by his superiors as to his fitness. But if it chooses expressly to bottom his discharge on a basis-like that of an automatic, unparticularized reaction to a plea of self-incrimination-which cannot by itself be sustained constitutionally, it cannot escape its constitutional obligations on the ground that as a general matter it could have effected his discharge with a minimum of formality. Cf. Vitarelli v. Seaton, 359 U. S. 535, 539.

For these reasons the judgment as to Globe should be reversed.

Syllabus.

UNITED STATES v. RAINES ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA.

No. 64. Argued January 12, 1960.-Decided February 29, 1960.

Under authority of R. S. § 2004, as amended by the Civil Rights Act of 1957, the Attorney General brought this civil action on behalf of the United States in a Federal District Court to enjoin certain public officials of the State of Georgia from discriminating against Negro citizens who desired to register to vote in elections in Georgia. The District Court dismissed the complaint on the ground that subsection (c), which authorizes the Attorney General to bring such an action, is unconstitutional. Although the complaint involved only official actions, the Court construed subsection (c) as authorizing suits to enjoin purely private actions and held that this went beyond the permissible scope of the Fifteenth Amendment and that the Act must be considered unconstitutional in all its applications. On direct appeal to this Court, held: The judgment is reversed. Pp. 19–28.

1. The case is properly here on direct appeal under 28 U. S. C. § 1252, since the basis of the decision below was that the Act of Congress was unconstitutional, no matter what the contentions of the parties might be as to what its proper basis should have been. P. 20.

2. The District Court erred in dismissing the complaint on the theory that the Act would exceed the permissible limits of the Fifteenth Amendment if applied to purely private actions by private persons, since that question was not properly before that Court on the record in this case. Pp. 20-24.

(a) One to whom application of a statute is constitutional will not be heard to attack it on the ground that it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. P. 21.

(b) The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases. P. 22.

(c) In this case there are no countervailing considerations sufficient to warrant the District Court's action in considering the

constitutionality of this Act in applications not presented by the facts before it. Pp. 22-24.

(d) To the extent that United States v. Reese, 92 U. S. 214, depended on an approach inconsistent with what this Court considers the better one and the one established by the weightiest of the subsequent cases, it cannot be followed here. P. 24.

3. Insofar as it authorizes the Attorney General to bring this action to enjoin racial discrimination by public officials in the performance of their official duties pertaining to elections, the Act is clearly constitutional. Pp. 24-28.

(a) Whatever precisely may be the reach of the Fifteenth Amendment, the conduct charged here-discrimination by state officials, within the course of their official duties, against the voting rights of citizens, on grounds of race or color-is certainly subject to the ban of that Amendment, and legislation designed to deal with such discrimination is "appropriate legislation" under it.

P. 25.

(b) It cannot be said that appellees' action was not "state action" merely because the aggrieved parties had not exhausted their administrative or other remedies under state law, since Congress has power to provide for the correction of the constitutional violations of every state official, high and low, without regard to the presence of other authority in the State that might possibly revise their actions. P. 25.

(c) Insofar as Barney v. City of New York, 193 U. S. 430, points to a different conclusion, its authority has been so restricted by later decisions that it might be regarded as having been worn away by the erosion of time and of contrary authority. Pp. 25–26.

(d) It is not beyond the power of Congress to authorize the United States to bring this action to vindicate the public interest in the due observance of private constitutional rights. P. 27. 172 F. Supp. 552, reversed.

Attorney General Rogers argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General White, John F. Davis, Harold H. Greene and David L. Norman.

Charles J. Bloch argued the cause for appellees. With him on the brief was Ellsworth Hall, Jr.