The Supreme Court and McCarthy-Era Repression

One Hundred Decisions

Robert M. Lichtman

• Publisher: University of Illinois Press
• Year: 2012
• Print ISBN: 9780252080968, 9780252037009
• eBook ISBN: 9780252094125
• Topic: History
• Subtopic: North American History
• Index: History

In this volume, attorney Robert M. Lichtman provides a comprehensive history of the U.S. Supreme Court's decisions in "Communist" cases during the McCarthy era. Lichtman shows the Court's vulnerability to public criticism and attacks by the elected branches during periods of political repression. The book describes every Communist-related decision of the era (none is omitted), placing them in the context of political events and revealing the range and intrusiveness of McCarthy-era repression.

 

In Fred Vinson's term as chief justice (1946-53), the Court largely rubber-stamped government action against accused Communists and "subversives." After Earl Warren replaced Vinson as chief justice in 1953, however, the Court began to rule against the government in "Communist" cases, choosing the narrowest of grounds but nonetheless outraging public opinion and provoking fierce attacks from the press and Congress. Legislation to curb the Court flooded Congress and seemed certain to be enacted. The Court's situation was aggravated by its 1954 school-desegregation decision, Brown v. Board of Education, which led to an anti-Court alliance between southern Democrats and anti-Communists in both parties. Although Lyndon Johnson's remarkable talents as Senate majority leader saved the Court from highly punitive legislation, the attacks caused the Court to retreat, with Felix Frankfurter leading a five-justice majority that decided major constitutional issues for the government and effectively nullified earlier decisions. Only after August 1962, when Frankfurter retired and was replaced by Arthur Goldberg, did the Court again begin to vindicate individual rights in "Communist" cases--its McCarthy era was over.

 

Demonstrating keen insight into the Supreme Court's inner workings and making extensive use of the justices' papers, Lichtman examines the dynamics of the Court's changes in direction and the relationships and rivalries among its justices, including such towering figures as Hugo Black, Felix Frankfurter, Earl Warren, William O. Douglas, and William J. Brennan, Jr. The Supreme Court and McCarthy-Era Repression: One Hundred Decisions tells the entire story of the Supreme Court during this unfortunate period of twentieth-century American history.

1

Defining the McCarthy Era

The more remarkable aspect of the McCarthy era is not that political repression occurred but that its duration and scope were so broad. A combination of circumstances and events following World War II, international and domestic, quite predictably held the seeds of repression:

• With the glow of America’s victory still fresh and a period of peace and normality in prospect, the Soviet Union, a valued ally in the war, abruptly became a dangerous antagonist, forging a bloc of satellite Communist nations and seeking aggressively to expand its influence throughout the world.¹
• The confrontation was not only military and economic but also overtly ideological. Soviet Communism proclaimed itself the wave of the future that would engulf and replace American capitalism.
• In the United States there existed a history of hostility to foreign ideologies and Communism in particular (for example, the post–World War I “Red Scare”), along with a visible and outspoken American Communist Party (CPUSA), which endorsed virtually every twist and turn of Soviet policy.²
• In the summer of 1948, public concern over Soviet espionage utilizing American Communists was triggered by the testimony of ex-Communist Elizabeth Bentley that she served, until her defection in 1945, as a courier for Soviet spy rings composed largely of American Communists employed in federal agencies. Her testimony was buttressed by that of another ex-Communist, Whittaker Chambers. The individuals they accused included Alger Hiss, a former State Department official who accompanied FDR to Yalta.³
• During 1949, control of China, with five hundred million inhabitants, was seized by Chinese Communists, who drove the U.S.-backed Nationalist government from the mainland.⁴
• In September 1949, the Soviet Union exploded an atomic bomb, shattering the American-British nuclear monopoly, an event hastened by Soviet espionage.⁵
• In June 1950, Communist North Korea invaded U.S.-supported South Korea, and the United States intervened militarily. In November, Chinese Communist armies entered the war. A tense and hostile truce ultimately ensued.⁶

While these developments signaled unmistakably that the Soviet Union and its allies threatened America’s security on the international scene, other factors, pertinent to an accurate assessment of any internal Communist threat, received less attention—not least the character of the American Communist Party.

The CPUSA was primarily a political organization, one that openly took positions on public issues and often entered candidates in elections for public office. Harvey Klehr and John Earl Haynes wrote in 1992: “The party promoted communism and the interests of the Soviet Union through political means; espionage was the business of the Soviet Union’s intelligence services. To see the American Communist Party chiefly as an instrument of espionage or a sort of fifth column misjudges its main purpose.” In 1999, following release of the VENONA messages—a trove of coded Soviet messages, intercepted during World War II and decrypted in part, that confirm the involvement of American Communists in Soviet espionage—the historians wrote, “[I]t still remains true that the CPUSA’s chief task was the promotion of communism and the interests of the Soviet Union through political means.” In the 1948 election, the first presidential election following the end of World War II, the party was an energetic participant, supporting former vice president Henry A. Wallace, the candidate of the newly formed Progressive Party, who received slightly over one million votes, about 2.3 percent of the national total.⁷

Loyalty to the CPUSA on the part of the vast majority of individuals who joined it was demonstrably shallow. The average length of an individual membership was only two or three years; as a result, former members greatly outnumbered current members. Morris Ernst and David Loth, writing in 1952 and using FBI numbers, estimated that “some 700,000 men and women have left the Communist party in this country in the last 30 years.” The CPUSA’s “peak membership” around 1940 was roughly one hundred thousand; by 1950, membership had fallen to 43,217; by the end of 1951, to 31,608. The “hard core,” Ernst and Loth wrote, “has been about 5,000 to 8,000.” Only a tiny percentage of American Communists had assisted Soviet espionage, and almost none after World War II ended in 1945.⁸

CPUSA members, in any case, comprised only a fraction of the class of persons who became targets of McCarthy-era repression. Alleged “Communist front” organizations were a greater source. During the 1930s, many hundreds of organizations were formed to oppose fascism or race discrimination, or to support the interests of workers whose leadership often included party members and which cooperated with the party. “Most members of these groups,” Geoffrey Stone wrote, “were not Communists, or even Communist ‘sympathizers’,” but they “shared many of the same goals.” By the time of the McCarthy era, most of the alleged “front” organizations were defunct.⁹

Whether a significant internal Communist threat existed in the postwar years was thus open to question. However, the widespread belief that such a threat did exist, and the related claim that liberal Democrats—New Dealers and their political successors—bore responsibility and could not be trusted to respond adequately, would soon become a reality in American politics. “McCarthyism,” Jeff Broadwater believed, was “energized not by opposition to communism but . . . by the linkage of Marxism with liberalism.” It was also energized by bare-knuckle partisan political tactics.¹⁰

The Political Reality

Franklin D. Roosevelt died in April 1945, but the American political scene continued long afterward to be dominated by the animosities created during his long period in office. Conservatives viewed the New Deal years, commencing in January 1933, as a series of rebuffs at the hands of planners, intellectuals, and bureaucrats. Powerful right-wing newspaper chains and radio commentators, reflexively hostile to FDR, gave voice to their frustrations. The investigations of the Dies Committee, between 1938 and 1945, and afterward by the permanent House Committee on Un-American Activities (HUAC) convinced them that New Deal agencies employed scores of Communists.¹¹

Conservatives were likewise convinced that liberal Democrats were responsible for America’s troubles in the international arena. Soviet domination of Eastern Europe, they believed, was attributable to FDR’s “sell out” at the Yalta conference, at the urging of advisors (such as Hiss) who were Communists. When China fell to the Communists in 1949, it became an article of faith among conservatives that Communists in the State Department had sabotaged the nationalist government and were responsible for the “loss” of China.¹²

FDR’s successor, Harry S. Truman, a moderate selected to replace Henry Wallace on the 1944 Democratic ticket, did not achieve while in office the favorable (no-nonsense, “the buck stops here”) reputation he generally enjoys today. In the early days of his presidency, Truman was widely regarded as ineffective and overwhelmed by the responsibilities suddenly thrust upon him. “Not in eighty years, not since Andrew Johnson, Lincoln’s successor,” David McCullough wrote, “had a President been the target of such abuse.” In the first week of October 1946, a month before the congressional elections, his approval rating was 40 percent and, a few weeks later, 32 percent.¹³

In the 1946 elections, the first during Truman’s presidency, Republicans gained fifty-five House and thirteen Senate seats, winning control of both houses of Congress for the first time since the 1928 election. In the campaign, the GOP made substantial use of the Communists-in-government issue, and Democratic liberals suffered the brunt of the losses.¹⁴

In control of Congress, the Republicans seized every opportunity to demonstrate the presence of Communists in the Roosevelt and Truman administrations and in the labor unions that supported them. The antiunion Taft-Hartley Act, enacted over Truman’s veto, included a provision that in effect required all union officials to sign a non-Communist oath with penalties for perjury. GOP congressmen Karl Mundt and Richard Nixon sponsored legislation to require the CPUSA and its members to register with the government. HUAC, under its new GOP chairman, J. Parnell Thomas, went to Hollywood to investigate “subversion” in the motion picture industry.¹⁵

Truman, with the 1948 presidential election looming, sought to defuse the “Communist” issue. In March 1947 he instituted by executive order a “loyalty” program applicable to all federal employees. As an integral part of the program, Attorney General Tom C. Clark prepared a comprehensive list of “totalitarian, fascist, communist, or subversive” groups—by 1950 numbering 197 organizations; membership in or “sympathetic association with” a listed group was often decisive in determining an employee’s loyalty. In July 1948, Clark’s Justice Department indicted the CPUSA’s twelve top officials under the Smith Act for conspiring to teach and advocate forcible overthrow of the government.¹⁶

At the same time, however, FBI director J. Edgar Hoover, who disliked Truman intensely, decided to go public with Elizabeth Bentley’s 1945 revelations and those of Whittaker Chambers, who had given his information to the government in 1939. Hoover delivered the two as “friendly” witnesses to the GOP-controlled HUAC and a counterpart Senate committee, which rushed them to the witness stand.¹⁷

The Bentley-Chambers disclosures created a sensation. Bentley’s charges related to the 1941–44 period. While Chambers split with the Communists earlier, he, like Bentley, named Alger Hiss, with whom he claimed a close personal relationship. The confrontation between the rumpled and troubled Chambers and the elegant and accomplished Hiss, who initially denied even knowing Chambers, was pure drama. Richard Nixon, a HUAC member, built a national reputation on his dogged pursuit of Hiss, aided greatly by covert assistance from Hoover’s FBI.¹⁸

The story of the 1948 presidential election—Truman’s seemingly hopeless position; his plucky, shrewd campaign; the overconfidence of his GOP opponent, Governor Thomas E. Dewey of New York; the Chicago Tribune’s election-day headline announcing a Dewey victory; and Truman’s narrow, late-night win—is political legend. Less well known is the decision by Dewey, a moderate, to forego use of the “Communist” issue as a major weapon against Truman. When one of his opponents for the GOP nomination, former Minnesota governor Harold Stassen, urged outlawing the Communist Party, Dewey disagreed, saying, “You can’t shoot an idea with a gun.” In a major speech in September, he said, “[I]n this country we’ll have no thought police. We will not jail anybody for what he thinks or believes.”¹⁹

“[C]ommunism was not a very great issue in the election of 1948,” Earl Latham wrote. “It was on the fringes of the contest, not at the center.” Dewey “was no McCarthy,” Hugh Scott, the GOP party chairman, said. “He thought it degrading to suspect Truman personally of being soft on Communism. He wasn’t going around looking under beds.”²⁰

The subsequent “triumph of anticommunist politics” stemmed from Truman’s 1948 victory. “Smarting from their losses, stung by the knowledge that they had snatched defeat from the jaws of victory,” William M. Wiecek wrote, “Republicans determined to regain control of national politics, and seized on anticommunism,” which “gave them an impeccably American platform from which to belabor Democrats as tainted with a foreign collectivism.” According to Joseph W. Martin Jr., the veteran GOP House leader, Dewey’s defeat seemed to prove that “the course of moderation had failed us once again,” causing many to turn to “extremism.” Robert A. Taft, Martin’s bland Senate counterpart, commented in March 1950, only weeks after Joe McCarthy burst onto the national scene, that McCarthy should “keep talking, and if one case doesn’t work out he should proceed with another.”²¹

The GOP had useful allies in its effort. J. Edgar Hoover made the FBI’s resources available to HUAC and McCarthy. Right-wing newspaper chains (Hearst, Patterson-McCormick, Scripps-Howard) trumpeted claims of Democratic perfidy, their reporters often the beneficiaries of Hoover’s leaks. And Republicans were joined by a loose amalgam of “professional anti-communists”—Richard Gid Powers called them “counter-subversives.” Previously on the fringes of GOP politics, some obviously paranoid about the internal Communist threat, the “counter-subversives” now moved into the GOP mainstream.²²

No sooner were the 1948 elections over when “the gods showered [the GOP] with golden opportunities.” In January 1949, China was “lost”; in March, Judith Coplon, a Justice Department employee, was arrested and charged with spying for the Soviets; in September, the Soviets exploded their first atomic bomb; in January 1950, a federal jury convicted Alger Hiss of perjury; in June, the Korean War began; in July and August, the Rosenberg atomic-espionage case broke and the Rosenbergs were arrested; and in November, the Chinese Communists entered the Korean War.²³

In the midst of these events, on February 9, 1950, McCarthy, a little-known Republican senator from Wisconsin, made his Lincoln Day speech to a GOP women’s group in Wheeling, West Virginia, a speech written for him by reporters for two right-wing newspapers.²⁴

McCarthy’s Role

McCarthy held the national spotlight for less than five years before suffering censure by the Senate in December 1954 and subsequent political disgrace, followed in May 1957 by death from liver failure at age forty-eight. He left behind no political movement, organization, philosophy, or significant writings. “If he was anything at all in the realm of ideas, principles, doctrines,” Richard H. Rovere, an early biographer, wrote, “he was a species of nihilist; he was an essentially destructive force.”²⁵

What made McCarthy a force was a rough-hewn and blunt manner, which attracted both captains of industry and blue-collar Ameri...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Author’s Note
• Introduction: Political Repression and Court-Curbing
• 1. Defining the McCarthy Era
• 2. The Justices of the Vinson Court, Douds, and the Start of the Court’s McCarthy Era (October Term 1949)
• 3. Dennis, the Attorney General’s List, Loyalty Programs, Contempts, and More (October Term 1950)
• 4. Deportations, Fallout from Dennis, and the Rosenberg Case (October Terms 1951 and 1952, Special Term 1953)
• 5. The Coming of the Warren Court, the Emspak Trilogy, and Brown’s Consequences (October Terms 1953 and 1954)
• 6. Nelson, Cole v. Young, and the Beginning of the Campaign against the Court (October Term 1955)
• 7. The “Red Monday” Decisions, Jencks, and a Crescendo of Anti-Court Attacks (October Term 1956)
• 8. Beilan, Lerner, and the Court’s Shift, Passport Cases, and Congress’s Court-Curbing Climax (October Term 1957)
• 9. Barenblatt, Uphaus, and the Court in Retreat (October Terms 1958 and 1959)
• 10. Scales and CPUSA, Wilkinson and Braden, and Konigsberg II and Anastaplo—a Full-Scale Retreat (October Term 1960)
• 11. Frankfurter’s Departure, a Near-Decision in Gibson, and the Era’s End (October Term 1961)
• Epilogue: Vietnam War Decisions and Some Observations
• Notes
• Selected Bibliography
• Index of Supreme Court Decisions
• Index
• Illustrations