THE SUPREME COURT: The Temple Builder

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Earl Warren, 14th Chief Justice of the U.S., is fond of a warm little story about three workmen constructing a building. A bypasser asked what they were doing. Answered the first: “I am following my trade.” Said the second: “I am making a living.” But the third, rising to his full height, replied: “Sir, I am building a temple.” The lesson is simple: to Earl Warren the law is a temple and the Supreme Court a builder. And by last week the blueprints were ready, the mortar was flying, and the marble blocks were moving toward a new look in U.S. legal architecture.

Among 95 separate decisions made by the Supreme Court last week, these gave the general idea:

¶ The court directed the acquittal of five California Communists and ordered a new trial for nine others, all convicted in 1952 under the antisubversive Smith Act.

¶ The court reversed the 1951 loyalty-risk firing of ex-Diplomat John Stewart Service, who can now return to good State Department standing (presumably with back pay).

¶ The court reversed the contempt-of-Congress conviction of Labor Organizer John Watkins, who had refused to answer Communists-I-have-known questions put to him by the House Un-American Activities Committee in 1954, and in so doing, the Chief Justice, as voice of the court’s majority, gave congressional investigators a narrowed field to work in—how much narrowed only future decisions will tell.

¶ The court cut into the field of state investigations of subversive activities by reversing the New Hampshire contempt conviction of Paul Sweezy, sometime lecturer at the state university.

Not since the Nine Old Men shot down Franklin Roosevelt’s Blue Eagle in 1935 has the Supreme Court been the center of such general commotion in newspapers (see PRESS) and in the bar. The New York Times trotted out the kind of headlines usually reserved for war or disaster. Cried a Chicago lawyer: “This court is unanalytical; it’s vicious, it’s stupid, it’s illiterate, it’s subjective.” Retorted a California judge: “The decisions are sound and timely. The trials of Communists here are comparable only to the trial of Cardinal Mindszenty in Hungary. Neither should have taken place.”

Meanwhile, Justice Department attorneys wearily totted up the damage of recent Supreme Court decisions: some reckoned that of 89 Communists convicted under the Smith Act, at least 40 will probably be able to get new trials—or outright acquittals from the Supreme Court. Furthermore, there is scant hope of convicting many of the 27 awaiting trial because of the double impact of the California Communist decisions and the Jencks decision (TIME, June 17) requiring the Government to allow defendants to see pertinent FBI files—or drop the case. If anyone doubted before, last week made it clear that the Supreme Court under Earl Warren was building a new wing to the temple of American law—even at the cost of razing an old wing, hard-built.

Legal-Eagle Eyes. The new look for the law began soon after Earl Warren came out of his successful California political career (see box) to become Chief Justice. His first major opinion was in the memorable school desegregation case, and he was joined in it by all his brethren on the court. But while millions cheered the result, many lawyers had an uneasy feeling that it hung on too much sociological ballooning and not enough legal ballast. More than a year ago sharp legal-eagle eyes began to open wide at signs of changes to come. The Warren court reversed the Pennsylvania State conviction of Communist Steve Nelson on the ground that federal security laws (notably the very same Smith Act) had pre-empted state antisedition statutes. Then a year ago the court agreed to review the case of the California Communists (finally decided last week) after earlier Supreme Courts had refused similar hearings.

The court sent back to the Subversive Activities Control Board a case on the constitutionality of the Internal Security Act of 1950. And, in returning Brooklyn College’s Professor Harry Slochower to his job after he had been fired for pleading the Fifth Amendment, the court invalidated a New York City charter requirement for automatic dismissal of any city employee taking the Fifth.

These were early indications of the new look. Judges in lower courts across the land duly took note and began slowing up consideration of pending Communist cases, since no judge likes to be reversed.

B.B.D. & W. Almost from the beginning, Chief Justice Warren seemed to be closer in spirit to veteran liberal Justices Hugo Black and William Douglas than to the other court veterans. But capable Administrator Warren aspired to be more than a mere dissenter, and he is credited with using his considerable persuasive talents to work out majorities for the liberal views. With the appointment of New Jersey Democrat William Brennan, there was formed a B.B.D. & W. dominant liberal bloc—Black, Brennan, Douglas and Warren. While no court bloc is ever hard and fast, this group—over a wide range of cases—frequently managed to make itself into a majority with support from Justices Harlan and Frankfurter.

But the Supreme Court change is more than one of mere personality. Mr. Dooley was just being Mr. Dooley when he said that the court follows the election returns, but in a far broader sense the court does change with the political climate. When Earl Warren stepped up to the nation’s highest bench, Stalinist aggression had produced a violent, often excessive U.S. reaction, most sharply expressed in the face and form of Senator Joseph Raymond McCarthy. Now McCarthy is dead, having outlived his ism, and the face of Nikita Khrushchev beams from U.S. television screens. Previous Supreme Courts had upheld security laws on the implied Holmesian basis of “clear and present danger.” By comparison, Earl Warren’s court has moved with drastic speed toward the implied concept of very little danger at all. Items:

¶ In 1947 Dr. Edward Barsky, chairman of the Red-front Joint Anti-Fascist Refugee Committee, was found guilty of contempt of Congress for refusing to produce his organization’s documents for House Un-American Activities Committee inspection. Barsky appealed to the Supreme Court under Chief Justice Fred Vinson—and the court refused to accept the case for hearing. In sharp contrast was last week’s Watkins decision, in which Warren read the riot act to the same Un-American Activities Committee whose contempt charge against Barsky had been allowed to stand.

¶ After the 1949 conviction in New York City of eleven top Communists, the U.S. Supreme Court (Vinson, C.J.) affirmed the convictions. Then four of them jumped bail and went into hiding. National Secretary Gus Hall, when picked up after his flight from justice, drew three more years for contempt of court. He appealed to the Supreme Court—and it refused to review. New York State Chairman Robert Thompson was arrested a little later and sentenced to four years for contempt. Again the Supreme Court refused to review. But last year the Communists’ Illinois Chairman Gilbert Green and National Organization Secretary Henry Winston thought the atmosphere had changed enough to come out of hiding. They were right: each sentenced to three years for contempt, they appealed to the Warren court—which last month agreed to consider their cases.

Down to a Crawl. If one effect of the Warren court’s drastic change was to broaden the area of civil liberties in the best tradition of U.S. constitutional law, another very practical—and measurable —effect was to slow the prosecution of Communist leaders to a crawl. In the drastic change of direction, state laws against subversion, state and municipal procedures for judging the worthiness of teachers, and the key federal statutes aimed at Communists had been eliminated or weakened. Good or bad, this was a consequence of great moment. Perhaps it did indeed accurately reflect the lessening of Communist danger. But the nature, spread and fabric of the decision indicated something more serious: that the present court majority never thought Communism much of a problem anyway.

Nowhere does the court acknowledge a pertinent point: if the U.S. now has its freedoms intact and if Communism is less a clear and present danger, this can be partly explained by the fact that the U.S. chose to use the law (and spurn devices of Joe McCarthy) to cut Communists down to size. Instead, in its zeal for civil rights, the court risked even the confusions of sudden reversals and redefinitions to cut the law down to size.

Up from the Ground. Beyond the direct issue of Communism, the court’s zeal worried many legal students because of its effect on the structure of law itself. “This country is unique in one single respect,” said Baylor Law School Dean Abner McCall. “Not our resources, our culture, our energy or anything like that. We are unique in our legal institutions. Most of these are means and procedures. And while most Americans cannot agree on many ends—religion, politics, education—they do agree on means.” Said Columbia University Law Professor Gerald Gunther: “There comes a point where a democratic government won’t allow an unelected body to substitute its value judgments for those of an elected body. This is a trend that can be dangerous.”

Potential damage to the continuity and structure of law sobered many observers who felt the instinct to cheer the net effect of the decisions. For the court’s power through law runs to the vitals of the American system, e.g., in the Du Pont case it made a sweeping decision basically affecting the U.S. economy, on only the barest recognizable relationship between law and the findings (TIME, June 17). Confusing practice, no matter in what cause, can only damage the shape of a legal system painstakingly built, block by block, with the accumulated wisdom of ages. No matter how noble the architect’s plans may be, even temples must still be built from the ground up.